HomeMy WebLinkAbout07132009 City Council PacketSeward City Council
Agenda Packet
City Council Chambers
July 13, 2009
Beginning at 7:00 p.m.
_ __----
Enjoying awonderful summer!
1963 196s Zoos The City of Seward, Alaska
CITY COUNCIL MEETING AGENDA
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{Please silence all cellular phones and pagers during the meeting} -
July 13, 2009 7.00 p m Council Chambers
Clark Corbridge
Mayor
Term Expires 2009
Willard E. Dunham
Vice Mayor
Term Expires 2010
Robert Valdatta
Council Member
Term Expires 2009
Tom Smith
Council Member
Term Expires 2009
Betsy Kellar
Council Member
Term Expires 2009
Jean Bardarson
Council Member
Term Expires 2010
Marianna Keil
Council Member
Term Expires 2010
Phillip Oates
City Manager
Jean Lewis
City Clerk
Cheryl Brooking
City Attorney
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ROLL CALL
4. 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)
6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS
A. Proclamations and Awards
1. Alaska Challenge Wheelchair Race Proclamation ..................4
2. Appreciation Certificate for Doug Capra, Historic Preservation
Commissioner ........................................................... 9
B. Borough Assembly Report
C. City Manager's Report
D. Report on #3 Lift Station by City Employee Steve Audette.
E. Other Reports, Announcements and Presentation
1. Hospital Update and Introduction of Providence Administrator,
Chris Bolton.
7. PUBLIC HEARINGS
Resolutions requiring a public hearing
1. Resolution 2009-056, Approving A Third Amendment Lease Of Lot 1,
Block 10, 4th Of July Creek Subdivision To Extend The Term Of The Lease
By Five Years And Approve An Assignment To GCI Communications
Corporation .............................................................................1 0
8. UNFINISHED BUSINESS -None
City of Seward, Alaska
July 13, 2009
Council Agenda
Page 1
9. NEW BUSINESS
A. Ordinances for Introduction
1. Non-Ordinance 2009-004, Appropriating Funds In An Amount Not To Exceed $500
To Make Expenditures Which Could Influence The Outcome Of An Election Concerning 2009
Advisory Ballot Proposition #1 Which Addresses The Addition Of Fluoride To The City Of
Seward Drinking Water To The Level Of 0.7-1.2 Parts Per Million As Recommended By The
U.S. Public Health Service .................................................................................16
2. Non-Ordinance 2009-005, Appropriating $500 To Make Expenditures That Could
Influence The Outcome Of An Election Concerning Advisory Ballot Proposition #2 Which Asks
The Qualified Voters If The City Should Increase The Sales Tax From 4.0% To 4.5% With The
Understanding That The Additional Funds Are Expected To Be In An Amount Sufficient To
Cover A Portion Of The Proposed Library/Museum Operating And Construction Costs.........26
3. Non-Ordinance 2009-006, Appropriating $500 To Make Expenditures That Could
Influence The Outcome Of An Election Concerning Ballot Proposition #3 Which Asks The
Qualified Voters If The City Should Pursue The Issuance Of General Obligation (GO) Bonds
Not To Exceed $5 Million Dollars To Finance The Library/Museum Construction And Capital
Costs ...........................................................................................................31
B. Resolutions
* 1. Resolution 2009-057, Accepting A Grant In The Amount Of $4,766.40 From The
Alaska Highway Safety Office For 2009 Fourth Quarter ASTEP Driving Under The Influence
(DUI) Enforcement Campaign And Appropriating Funds .............................................35
*2. Resolution 2009-058, Accepting A Grant In The Amount Of $5,004.72 From The
Alaska Highway Safety Office For 2009 Third And Fourth Quarter ASTEP Seatbelt
Enforcement Campaign And Appropriating Funds .....................................................40
*3. Resolution 2009-059, Authorizing The City Manager To Sign An Extension Of A
Special Services Contract Between The City Of Seward And The Department Of Public Safety
Providing Dispatch And Clerical Services To Public Safety Employees In The Seward Area For
Forty Eight Thousand And Five Hundred Dollars ($48,500.00) ......................................45
*4. Resolution 2009-060, Accepting Capital Funding In The Amount Of $30,581.00
From The State Of Alaska In Order To Install A New Roof Over The Steps And Exterior Door
Of The Seward Community Jail And Appropriating Funds ...........................................49
*5. Resolution 2009-061, Requesting That The State Of Alaska Exempt Flood
Mitigation Projects In The Seward Area From The Gravel Royalty Fee, As It Applies To Al]
Flowing Waters Into Resurrection Bay, In The Vicinity Of Seward Alaska ........................54
City of Seward, Alaska Council Agenda
July 13, 2009 Page 2
*6. Resolution 2009-062, Requesting That The State Of Alaska Revoke Its March 20,
2006 Navigability Determination As To Salmon Creek, Fourth Of July Creek And Sawmill
Creek, All Located In The Vicinity Of Seward, Alaska............ ...........61
*7. Resolution 2009-063, Requesting The USDA Natural Resources Conservation
Services Expeditiously Complete Soils Surveys In The Seward Area... ... gs
C. Other New Business Items
* 1. Approval Of The June 22, 2009 Regular City Council Meeting Minutes and the
June 24, 2009 Special City Council Meeting Minutes ..............................92
10. INFORMATIONAL ITEMS AND REPORTS (No action required)
A. Master Municipal Clerk Academy Completion Certificate for Jean Lewis, CMC.105
11. COUNCIL COMMENTS
12. CITIZENS' COMMENTS ~S minutes per individual -Each individual has one
opportunity to speak.)
13. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS
14. ADJOURNMENT
City of Seward, Alaska Council Agenda
July 13, 2009 Pa e 3
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WHEREAS, Challenge Alaska is a non-profit organization that provides
therapeutic recreation for people with disabilities year round, and has been preparing for
their silver anniversary since 2007; and
WHEREAS, this year is the 25th Anniversary, and Challenge Alaska has
organized Sadler's Alaska Challenge, known as the longest and toughest race in the
world for wheelchair and handcycle athletes; and
WHEREAS, organizers at Challenge Alaska -who own and operate the race -
are plamling something very special for the 25th Anniversary event, which will take place
beginning July 20, 2009 in Seward; and
WHEREAS, this lace has developed a reputation as the Uest race in the world,
and is a `must do' for athletes with disabilities lrom all over the world, so they've
decided to raise the bar even. higher far the 25th anniversary in 2009; and
WHEREAS, Sadler's Alaska Challenge will start stage one and two in Seward,
starting with a 14 mile time trial out Exit Glacier road, and a ten mile circuit race that will
showcase the athletes racing through the streets of Seward; and
WHEREAS, Challenge Alaska has been working with the City of Seward, Kenai
Fjords National Park, the Sealife Center, AVTEC, Windsong Lodge, and the Seward Fire
Department to provide housing, meals, medical support, and race course for stages one
and two; and
WHEREAS, the race will continue on to Hope to Portage, Girdwood, Cordova,
Valdez, Wrangell St. Elias Park and finishes with afirst-ever mountain ascent to the top
of Hatcher's Pass in Palmer on July 26, 2009.
NOW THEREFORE I, Clark Corbridge, Mayor of the City of Seward, on behalf
of the citizens of Seward, do hereby welcome the participants of the 25th annual Sadler's
Alaska Challenge, and wish them a rewarding and safe race journey through Alaska.
Dated this 13th day of July, 2009.
Clark Corbridge, Mayor
Cha~len~e Alas~Ca
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PAE~RANS
Stage 2: Monday, July 20, 2009
Seward Downtown Criterium
Start time: to be determined ~ Course length: 1 km (.62 mile)
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Notes:
-Cars approaching intersection ofJefferson & 5th will be flagged through when course is clear
-Course could run in either direction, pending safest line through turns
-Total closure time: 90 minutes - 2 hours (Two groups at 45 - 60 minutes each)
-Course could be closed fora 2-hour block, our two, 1-hour blocks
- Time is flexible: Anytime between 2:OOpm and ]O:OOpm
-Staff can place advance warning signs in cooperation with city ifnecessary
-Race communications provided by Arcticom. Arcticom interfaces directly with local police
and fire, and directly with course marshals. Race will be immediately neutralized, and course opened
If EMS needs to get within closure.
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. Home
. About
. 200.9__Race_Information
. Roster
. Media Information
. 2009 Race Preview
__
. Race Sponsors
2009 Race Preview
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25th Anniversary
Sadler's Alaska
Challenge
Race Preview
by Ian L. Lawless
& Heather Plucinski
N
Co-Directors,
2009 Race
__ .
At the Paralympic Games in Beijing China last year, the world witnessed some incredible competition -
particularly during the handcycling and wheelchair racing events. While preparing the roster for this
year's Sadler's Alaska Challenge, we noticed something: It's not very different from the start list in
Beijing!
With the 25th Anniversary buzz circulating for 22 months now, word got around that this year's race
would be something special. As expected, we have some big name, international competitors. But what
we didn't expect, is just how many we would have. Below are some statistics and some racers to watch
., ~,
http://www.sadlersakchallen~e.or~/ 7/8/2009
Sadler's Alaska Challenge
out for:
Athletes racing this year who also competed in Beijing: 16
Number of athletes who won Gold medals in Beijing: 4
Athletes who have, or currently hold World Records: 7
Number of Alaskan entrants: 8 (the most ever)
Number of women entrants: 5 (the most ever)
Number of countries represented: 8 (the most ever)
Total number of racers: 39 (the most ever)
Youngest Competitor: 25
Oldest Competitor: 70
Page 2 of 4
In addition, the race will feature two combat-injured veterans -Melissa Stockwell and Carlos Moleda -
both fierce competitors, but -like all of their fellow race entrants -show us just how important sport can
be for better health, well-being, and morale...no matter your "ability."
This race is important to different competitors for different reasons. Connecticut's Joe Dowling, for
example, has raced in Alaska a handful of times, but he will be celebrating his 70th birthday at this year's
race, and he'll be a happy man atop Hatcher's Pass on July 26th. Larry Coutermarsh -who lives in North
Pole, AK -will of course be racing for his 25th time. Why not ?You get free entry after 15 years! Many
other racers are coming to experience the beauty of Alaska...a different part than is usually seen on the
race.
One of the biggest reasons many elite competitors come to Alaska, is because there really is no other
event like it anywhere in the world. It's been billed as the "Tour de France" of wheelchair sports, and is
the only multi-day, timed stage race in the world for handcyclists and wheelchair racers. Combine that
with the beauty of Alaska and the kindness and hospitality of the communities visited by the race, and
you get a truly memorable experience.
Who will win ?
There are some big, BIG names to look out for this year, and we expect some incredible racing on the
roads of Alaska. In the Kneeseat handcycle
race, former winner -and Paralympic Gold Medallist -Ernst Van Dyk of South Africa, will have his
hands full with another former winner, Scott McNeice, who is one of the world's best climbers. Another
Paralympian, Norbert Mosandl of Germany will be on hand to do battle with Van Dyk, McNeice,
newcomer Chris Peterson, and another South African, Krige Schabort...who will also look to make his
mark on the climbs.
In the Longseat category, it's anybody race, and you can expect a big group on the first five stages before
the mountains create larger time gaps. Switzerland's Heinz Frei won double gold in Beijing, and is no
stranger to mountains. However, one look at the roster, and it's easy to see that there are a lot of other
guys who hail from mountainous areas: The entire Austrian handcycling team is here: pretty sure there
are some mountains there...watch for Manfred Putz, who is well known on the European circuit. A
couple of guys from Colorado: Drew Wills and Matt Updike (who represented Team USA in Beijing)...
yeah, they can climb. And don't forget the German, Stefan Baumann...he is a regular fixture in the
rearview mirror of Frei, and another Austrian
who now lives in Germany: Elmar Sternath. Sternath has raced at Sadler's before, and is back to do battle
for the 25th Anniversary bragging rights.
Tlae women's handcycl~_zaGe~w~i,~l_be.o~ of.Ihe, ~,ost,exct~r~g_,ev~r! You.caz~ expect a_bal#le_foz tiz~tQrv_, ,_.
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between bitter rivals, Andrea Eskau of Germany and Monique Van der Vorst of the Netherlands (both
ride kneeling bikes), but look for the remaining three [American] women, Susan Katz, Melissa Stockwell,
and former winner Sherry Schulz -all of whom ride longseat bikes - to battle for the final podium spot.
In the men's wheelchair race, forme winner James Lilly will be back for his 10th time in a racing chair,
and is always a guy to watch. However, Lilly will have to contend with another former winner and
Sadler's regular, Paul Nunnari of Australia, who is known for his climbing prowess and was excited
when he learned of this year's course. If that's not enough, Mexico's Saul Mendoza is looking to cap his
career at this year's race, and if you haven't heard of him, Google will give you about 100,000 results
that include world records, Paralympic medals, and the like.
Don't forget about the Speedy Sourdough award....Challenge Alaska, host of the race is proud that there
are eight Alaskans this year...the most ever at the race. Mark Hufford and Kevin Jackson are experienced
Alaskans who will share no secrets with strong newcomer Bill Lasher. Edwin Jones, Mike O'Neill, Brant
Schalk, and Rick Gilliland all are looking fit and ready to roll. Larry Coutermarsh who always draws a
crowd will be sure to show with his usual flair.
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Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2009-056
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, APPROVING A THIRD AMENDMENT
LEASE OF LOT 1, BLOCK 10, 4TH OF JULY CREEK
SUBDIVISION TO EXTEND THE TERM OF THE LEASE BY
FIVE YEARS AND APPROVE AN ASSIGNMENT TO GCI
COMMUNICATIONS CORPORATION
WHEREAS, in order to ensure the continued use of valuable city-owned land
(Re-88-067) and to allow for businesses' long-term planning, the City leased land to GCI
Cable, Inc. utilized the site for a communication tower occupying 1,886 square feet of
property more commonly known as Lot 1, Block 10, 4`" of July Creek Subdivision,
Seward Marine Industrial Center; and
WHEREAS, the lease began on June 23, 1988 through June 22, 2008 including a
ten-year extension. The parties have operated on month to month extensions, authorized
by the Lease, since June 2008; and
WHEREAS, GCI Cable, Inc. wishes to continue their lease through June 22,
2013; and
WHEREAS, GCI Cable would like to assign the lease to its affiliate GCI
Communications Corporation; and
WHEREAS, notice of Lease Amendment No. 3 was published and a public
hearing was held.
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 Lease
Amendment No. 3, in substantially the form presented at this meeting, on behalf of the
City.
Section 2. This resolution shall take effect thirty (30) days after passage and
posting.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska,
this 13t" day of July 2009.
_ ~~
COUNCIL AGENDA STATEMENT
,~/
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Meeting Date: July 13, 2009 - '~ ~~
~ ~i
Through: Phillip Oates, City Manager!/
From: Kari Anderson, Harbormaster
Agenda Item: Authorizing the City Manager to enter into a lease extension with GCI Communications
Corp. for Lot 1, Block 10, 4t" of July Creek, Seward Marine Industrial Center
BACKGROUND & JUSTIFICATION
GCI Communications Corporation (formerly Seward Cablevision, later GCI Cable) entered into a lease with
the City of Seward effective June 1988 for a site at the Seward Marine Industrial Center. This lease
encompasses Lot 1, Block 10, 4t" of July Creek, Seward Marine Industrial Center in the Seward Recording
District. Article V.2 allowed the lease to be extended through June 2008 and the lease has been continued past
this date on a month to month basis with all terms, covenants and conditions related to Article V.3 in the
current lease. GCI Communications Corp. is requesting a 5 year extension of this lease through June 2013.
This lease area encompasses 1,884 square feet. The attached map shows the leased site in relation to Nash
Road and other leased and private properties in the Seward Marine Industrial Center. The site will be used
only for construction, maintenance and operation of a technical facility and related communication equipment
in conjunction with GCI's operations as a telecommunications provider. Any improvements to the site will be
approved by the City in writing prior to construction.
The City will conduct appraisals of its rental property in 2010 and new rental rates are now in effect, based on
fair market rental values. The lease extension includes an annual adjustment to rent based on the Anchorage
Consumer Price Index.
CONSISTENCY CHECKLIST Yes No N/A
1. Comprehensive Plan X
(Economic Development, Support development of modern communications infrastructure)
2. Strategic Plan X
(Growth Management and Land Use Planning: Promote residential and commercial development inside the
city)
3. Other: SMIC Development Plan X
(Goal: Sound, Maximized and Coordinated Development of private and public uplands in support of the needs
of the users and visitors)
FISCAL NOTE
1~
The rent is four hundred ($400.00) dollars and is paid in two semi-annual installments. The annual base renal
payment shall be adjusted on July 1, 2010, and on the same date every five years thereafter as the appraised
fair market rental value.
Finance Department: e~~ ~ J,`u` ' ~~rP`~-~
ATTORNEY REVIEW X
RECOMMENDATION
Council approve Resolution 2009- p~ authorizing the City manager to enter into a Lease extension with
GCI Communications Corp. for Lot 1, Block 10, 4th of July Creek, Seward Marine Industrial Center.
12
LEASE AMENDMENT N0.3
(RE-88-067)
TI3E CITY OF SEWARD, ALASKA, a home rule municipal corporation, organized and
existing under the laws ofthe State ofAlaska, hereinafter referred to as "CITY," whose address is PO
Box 167, Seward, Alaska 99664 and GCI CABLE, INC., 2550 Denali St., Suite 1000, Anchorage,
Alaska 99503, and GCI COMMUNICATION CORPORATION, 2550 Denali St., Suite 1000,
Anchorage, Alaska 99503, hereby agree that the lease agreement 88-067 for Lot 1, Block 10, 4"' of
July Creek Subdivision, Seward Marine Industrial Center, Thud Judicial District, Seward Recording
District, State of Alaska is hereby amended as follows:
ITEM 1. ARTICLE V. LEASE TERM
The term of this lease shall be extended and shall terminate on June 22, 2013.
ITEM 2. GCI Cable, Inc. hereby assigns all o f its right, title and interest to the Lease to GCI
Commmiication Corporation and GCI Communication Corporation accepts full assignment. The City
hereby consents to the assignment and releases GCI Cable Inc. from all rights and obligations under
the Lease.
In all other respects, the Lease is to remain unchanged and in full force between the undersigned
parties.
LESSOR:
CITY OF SEWARD
Phillip Oates, City Manager
ATTEST:
Jean Lewis, CMC, City Clerk
(City Seal)
LESSEE:
GCI Communication Corporation
By: X10 ~R ~s
Its: G t l v A
GCI Cable Inc.
By: d vc ~ L . ,~
Page 1 of 3
13
STATE OF ALASKA )
ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this _ day of ,2009,befr~reme,
the undersigned, a Notary Public in and for the State of Alaska, personally appeared Phillip Oates,
known to me and to me known to be the City Manager for the City of Seward, Alaska, and
authorized to execute documents on its behalf, and is the individual named in and who executed the
foregoing document on behalf of the City of Seward for the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
NOTARY PUBLIC IN AND FOR ALASKA
My Commission Expires:
STATE OF ALASKA )
ss.
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ~ day of 2009,
be re me, tfi un r igned; a Notary Public in and for the Stat of Alaska, personally appeared
known to me and to me known to be the
~/ ' _ for GCI Cable, Inc. and authorized to execute documents on its behalf, and
is the in ividual named in and who executed the foregoing document on behalf ofthe corporation for
the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
I'ARY PUBLIC IN AND F A
Commission Expires:
;'i~.rr. OF ALASKA .~~~~
NOTARY PUBLIC :,~ti ~~`~
Sarah Burke
••n., Rnmrr~ssion Expires: October 22, 2012
Page 2 of 3
- 14
STATE OF ALASKA )
ss.
THIRD .NDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ,~_ day of _, 2009,
b fore me, t undersigne a Notary Public in and for the State of Alaska, personally appeared
known to me and to me known to be the
for GCI Communication Corporation, and authorized to execute documents
on its ehalf, and is the individual named in and who executed the foregoing document on behalfof
the corporation for the uses and purposes therein set forth.
WITNESS my hand and notarial seal the day and year first hereinabove written.
GARY PUBLIC IN AND~~~~
Coirnnission Expires: (~ ,%
Return to:
City of Seward
Harbor Dept.
PO Box 167
Seward, AK 99664
"l'ATL OF ALASKA ,..••..,
,,,~,,,.
NOTARY PUBLIC =~a~~~=
~ Sarah Burke
My Commission Expires: October 22, 2012
Page 3 of 3
Sponsored by: Oates
Introduction: July 13, 2009
Public Hearing: July 27, 2009
Enactment: July 27, 2009
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-004
A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, APPROPRIATING FUNDS IN AN AMOUNT NOT TO
EXCEED $500 TO MAKE EXPENDITURES WHICH COULD INFLUENCE
THE OUTCOME OF AN ELECTION CONCERNING 2009 ADVISORY
BALLOT PROPOSITION #1 WHICH ADDRESSES THE ADDITION OF
FLUORIDE TO THE CITY OF SEWARD DRINKING WATER TO THE
LEVEL OF 0.7-1.2 PARTS PER MILLION AS RECOMMENDED BY THE
U.S. PUBLIC HEALTH SERVICE
WHEREAS, the Seward City Council passed Resolution 2009-043 on May 26, 2009 to
submit Advisory Proposition # 1 to the qualified voters at the October 6, 2009 regular municipal
election advising whether to fluoridate the city's drinking water; and
WHEREAS, there are pros and cons to adding fluoride to community water supplies and
there is passion among both the proponents and opponents of fluoridation; and
WHEREAS, in an attempt to remain neutral in this debate and let the voters decide, it may
be necessary for the city to put out a pro and con statement to educate voters on both sides of this
issue; and
WHEREAS, some money may be used to put out a neutral statement; and
WHEREAS, the city council has determined it is in the public interest this issue be
submitted to the qualified voters of the city; and
WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted
municipal funds to influence the outcome of an election and require registering and reporting under
AS 15.13.040 and AS 15.13.050; and
WHEREAS, in order to educate the public in accordance with the provisions of 2AAC
50.360(b), the City Council must appropriate funds since the education process may influence the
outcome of an election; and
WHEREAS, under AS 15.13.145, a municipality may not use money to influence the
outcome of an election concerning a ballot proposition unless the funds have been specifically
appropriated for that purpose by the elected body.
~~
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-004
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA that:
Section 1. The City Council hereby appropriates and authorizes expenditures in an amount
not to exceed $500 from the city manager's training and education account number 101-1120-5160
for the purposes of educating the public, if needed, about the pros and cons of adding fluoride to the
city's water supply that may have the potential to influence the outcome of the election.
Section 2. The City Council further directs and authorizes the city manager and other City
officers, officials, and employees, as may be appropriate, to register and to complete and file all
necessary reports, forms, and notices relating to election-related expenditures as required by law.
Section 3. This ordinance shall take effect ten (10) days following enactment.
ENACTED by the City Council of the City of Seward, Alaska, this 27th day of July, 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
~~
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor Corbridge, City Council Members
~~~
From: Jean Lewis, City Cler,~~~';-`4
~...--~'
Agenda Item: Expending public funds that could influence the outcome
of an election -Fluoride Advisory Proposition #1
BACKGROUND & JUSTIFICATION:
Advisory Proposition # 1 will submit to the qualified voters the question of whether to add fluoride to
the City of Seward drinking water to the level of 0.7-1.2 parts per million as recommended by the
U.S. Public Health Service.
AS 15.13.145 states that money held by a municipality maybe used to influence the outcome of an
election concerning a ballot proposition or question, but only if those funds have been specifically
appropriated for that purpose by state law or municipal ordinance.
On the issue of fluoride, the city wishes to remain neutral in its position. In the event the city
believes it should disseminate neutral bipartisan information on this subject to the public, this
ordinance provides flexibility and allows for the funds to be expended, if needed, to educate the
public, which could influence the outcome of the election on this matter.
The City is allowed to prepare and distribute neutral materials to educate the public on the
proposition before them.
The city would have to follow state reporting requirements in 2AAC 50.360 and AS 15.13.140-155
if bipartisan materials and public funds are used.
If the city were to use these funds to disseminate bipartisan materials, we would have to follow state
reporting requirements in 2AAC 50.360 and AS 15.13.140-155.
INTENT:
The city council wishes to remain neutral on this subject and let the public decide this issue.
If the city council decided it needed to expend funds for anon-partisan ballot summary related to this
Advisory Proposition # 1, this non-code ordinance provides the flexibility to allow the city council to
do so.
CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the
Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council
Rules of Procedures.
Other:
~~
FISCAL NOTE:
If the council decides it needs to disseminate non-partisan information to educate the public, these
funds would come out of the City Manager training and education fund account # 101-1120-5160.
Approved by Finance Department:
1~- - ~~,~.J ~
RECOMMENDATION:
City Council introduce and enact Non-Code Ordinance 2009-004 appropriating funds for the purpose
of possible expenditures to educate the public which could influence the outcome of an election
concerning advisory ballot proposition #1, which addresses the addition of fluoride to the City of
Seward Drinking water to the level of 0.7-1.2 parts per million as recommended by the U.S. Puhlic
Health Service.
tV.tU.V'tV
groups which have registered with commission
pursuant to AS 15:13.050. VECO Int'1, Inc. v. Alaska
Pub. Offices 'Comm'n, 753 P.2d 703 (Alaska 1988),
appeal dismissed, 488 U.S. 919, 109 S. Ct. 298, 102 L.
Ed. 2d 317 (1988).
Applied in Messerli v. State, 626 P.2d 81 (Alaska
1980).
692 :` 693
II. REGULATIONS.
No regulations were necessary to implement
the mandatory provisions for filing an appoint-
ment of campaign treasurer established by AS
15.13.060(c). Silides v. Thomas, 559 P.2d 80 (Alaska
1977).
Sec. 15.13.040. Contributions, expenditures, and supplying of services to be
reported. (a) [See delayed amendment note.] Except as provided in (g) and (Z) of this
section, each candidate shall make a full report, upon a form prescribed by the
commission,
(1) listing
(A) the date and amount of all expenditures made by the candidate;
(B) the total amount of all contributions, including all funds contributed by the
candidate;
(C) the name, address, date, and amount contributed by each contributor; and
(D) for contributions in excess of $50 in the aggregate during a calendar year, the
principal occupation and employer of the contributor; and
(2) filed in accordance with AS 15.13.110 and certified correct by the candidate or
campaign treasurer.
(b) Each group shall make a full report upon a form prescribed by the commission,
listing
(1) the name and address of each officer and director;
(2) the aggregate amount of all contributions made to it; and, for all contributions in
excess of $100 in the aggregate a year, the name, address, principal occupation, and
employer of the contributor, and the date and amount contributed by each contributor; for
purposes of this paragraph, "contributor" means the true source of the funds, property, or
services being contributed; and
(3) the date and amount of all contributions made by it and all expenditures made,
incurred, or authorized by it.
(c) The report required under (b) of this section shall be filed in accordance with AS
15.13.110 and shall be certified as correct by the group's treasurer.
7 (d) Every individual, person, nongroup entity, or group making an expenditure shall
make a full report of expenditures, upon a form prescribed by the commission, unless
exempt from reporting.
(e) The report required under (d) of this section must contain the name, address,.
principal occupation, and employer of the individual filing the report, and an itemized list
of expenditures. The report shall be filed with the commission no later than 10 days after
the expenditure is made.
(f) During each year in which an election occurs, all businesses, persons, or groups that
fu-rnish any of the following services, facilities, or supplies to a candidate or group shall
maintain a record of each transaction: newspapers, radio, television, advertising,
advertising agency services, accounting, billboards, printing, secretarial, public opinion
polls, or research and professional campaign consultation or management, media
production or preparation, or computer services. Records of provision of services,
facilities, or supplies shall be available for inspection by the commission.
(g) The provisions of (a) and (Z) of this section do not apply to a delegate to a
constitutional convention, a judge seeking judicial retention, or a candidate for election to
a municipal office under AS 15.13.010, if that delegate, judge, or candidate
(1) indicates, on a form prescribed by the commission, an intent not to raise and not to
expend more than $5,000 in seeking election to office, including both the primary and
general elections;
(2) accepts contributions totaling not more than $5,000 in seeking election to office,
including both the primary and general elections; and
692 693 STATE ELECTION CAMPAIGNS
§ 15.13.040
implement (3) makes expenditures totaling not more than $5,000 in seeking election to office,
including both the
i
an appoint-
fished by AS pr
mary and general elections.
(h) The provisions of (d) of this section do not apply to one or more expenditures
d
d so (Alaska ma
e
by an individual acting independently of any group or nongroup entity and independently
of any other individual if the expenditures
ces to be (1) cumulatively do not exceed $500 during a calendar year; and
3 (Z) of this (2) are made only for billboards si s or
~ ~ ~ printed material concerning a ballot
proposition as that term is defined by AS 15
13
065(c)
'd by the .
.
.
~ (i) The permission of the owner of real or ersonal ro ert to
ol
ical signs
o
ai
,
including bumper stickers, or to use space for an event or to store
cam
p gn-related
materials is not considered to be a contribution to a candidate under this chapter unless
'd by the the owner customarily charges a fee or receives payment for that activity. The fact that
the owner customarily charges a fee or re
i
'
ce
ves a
p yment for posting signs that are not
political signs is not determinative of whether th
end e owner customarily does so for political
signs.
year, the (j) Except as provided in (Z) of this section, each nongroup entity shall make a full
~didate report in accordance with AS 15.13.110 upon a form prescribed by the commission and
or certified by the nongroup entity's treasurer, listing
nmi
i (1) the name and address of each officer and director of the nongroup entity;
ss
on, (2) the aggregate amount of all contributions made to the nongroup entity for the
purpose of influencing the outcome of an election;
autions in (3) for all contributions described in (2) of this subsection, the name, address, date
and
tion
and ,
amount contributed by each contributor and, for all contributions described in (2) of this
,
butor; for; subsection in excess of $250 in the aggregate during a calendar year, the princi al
p
occupation and employer of the contributor; and
operty, or (4) the date and amount of all contributions made by the nongroup entity, and, except
•es made;.. as provided for certain independent expenditures in AS 15.13.135(a), all expenditures
made, incurred, or authorized by the nongroup entity, for the purpose of influencing the
with AS outcome of an election; a nongroup entity shall report contributions made to a different
nongroup entity for the purpose of influencing the outcome of an election and expendi-
ure shall tures made on behalf of a different nongroup entity for the purpose of influencing the
~
n
unles outcome of an election as soon as the total contributions and expenditures to that
,
s nongroup entity for the purpose of influencing the outcome of an election reach $500 in
addres a year and for all subsequent contributions and expenditures to that nongroup entity in
s,
nized list a year whenever the total contributions and expenditures to that nongroup entity for the
ays after purpose of influencing the outcome of an election that have not been reported under this
paragraph reach $500.
Iups that (k) Every individual, person, nongroup entity, or group contributing a total of $500 or
pup shall more to a group organized for the principal purpose of influencing the outcome of a
•ertising proposition shall report the contribution or contributions on a form prescribed by the
,
i
i commission not later than 30 days after the contribution that requires the contributor to
op
n
on
s
media z report under this subsection is made. The report must include the name, address,
, principal occupation, and employer of the individual filing the report and the amount of
services, the contribution, as well as the total amount of contributions made to that group by that
ate to individual, person, nongroup entity, or group during the calendar year.
a
ection t (Z) Notwithstanding (a), (b), and (j) of this section, for any fund-raising activity in
o which contributions are in amounts or values that do not exceed $50 a person
the
id not to ,
candidate, group, or nongroup entity shall report contributions and expenditures and
supplying of services under this subsection as follows:
iary and - (1) a report under this subsection must
(A) describe the fund-raising activity;
to office, (B) include the number of persons making contributions and the total proceeds from
the activity;
~~
"z
§ 15.13.045 ELECTIONS
Sec. 15.13.045. Investigations, hearings. (a) The commission ma
nas, administer oaths, hold hearings, and conduct investigations.
(b) In conjunction with (a) of this section, the commission may compel
of witnesses and production of papers, books, records, accounts, docurrrn
mony, and may have the deposition of witnesses taken in a manner prey"
rule or law for the taking of depositions in civil actions when consistent'~~
and duties assigned to the commission by this chapter. '
(c) The commission may examine the papers, books, records, accounts;`.,
of any person subject to this chapter to ascertain the correctness of a repo'
commission, or in conjunction with an investigation or inspection condur
this section.
(d) Subpoenas may be issued and shall be served in the manner. pr
44.62.430 and court rule. The failure, refusal, or neglect to obey a ubpoe
as contempt in the manner prescribed. by law or court rule. The- supE
compel obedience to the commission's subpoena in the same manner ai
obedience to a subpoena issued by the court. (§ 14 ch 189 SLA 1975)
NOTES TO DECISIONS
Cited in Silides v. Thomas, 559 P.2d 80 (Alaska
1977).
See. 15.13.050. I~,egistration before expenditure. (a) Before maktn
ture in support of or in opposition to a candidate or before making an e
support of or in opposition to a ballot proposition or question, each person
individual shall register, on forms provided by the commission, with the
(b) If a group intends to support only one candidate or to contribute to
behalf of one candidate 33 1/a percent or more of its funds, the name of the ci
be a part of the name of the group. If the group intends to oppose only ori~
to contribute its funds in opposition to or make expenditures in opposition
the group's name must clearly state that it opposes that candidate by usin
« ,~« »«• >
~~; as opposes, opposing, m opposition to, or against in the groups n
upon. receiving the registration, the commission shall notify the candidate
~??_ organization and intent. A candidate may register more than one group:
~ ' candidate; however, multiple groups controlled by a single candidate shal
a single group for purposes of the contribution limit in AS 15.13.07,0(b)(1).1
t 1974; am § 15 ch 189 SLA 1975; am § 8 ch 48 SLA 1996; am § l ch 3 S
Effect of amendments. -The 1996 amendment,
effective January i, 1997, rewrote this section.
Trie 2002 amendri,ent, effective April 16, 2002, in
NOTES TO
Disclosure requirements constitutional. -
The disclosure requirements of this chapter are not
unconstitutionally vague or overbroad, nor do they
violate the constitutional right of the people to pri-
vacy. VECO Intl, Inc. v. Alaska Pub. Offices Comm'n,
subsection (b) added the last
minor stylistic changes.
DECISIONS
753 P.2d 703 (Alaska 1988),. al
U.S. 919, 109 S. Ct. 298, 102 L.
Cited in Alaska Right to Life
F.3d 773 (9th Cir. 2006).
Sec. 15.13.060. Campaign treasurers. (a) Each candidate and grouF
a campaign treasurer who is responsible for receiving, holding,. and
contributions and expenditures, and for filing all reports and statements re
A candidate may be a campaign treasurer.
(b) Each group shall file the name and address of its campaign trea<,
commission at the time it registers with the commission under AS 1'5.13.
~2
712 713 STATE ELECTION CAMPAIGNS § 15.13.155
Nothing prevents individual organizers of non-group may communicate their endorsements to their em-
'° entities from either forming a "group" to collect con- ployees or members. State v. Alaska Civil Liberties
Civil Liberties tributions and make expenditures, or soliciting indi- Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528
denied, 528
'rt vidual contributions from other members without U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (2000).
.
2d 1069 (20001. relying on treasury funds; further, non-group entities
it Sec. 15.13.140. Independent expenditures for or against ballot proposition or
question. (a) This chapter does not prohibit a person from making independent
expenditures in support of or in opposition to a ballot proposition or question.
F (b) An independent expenditure for or against a ballot proposition or question
(1) shall be reported in accordance with AS 15.13.040 and 15.13.100 - 15.13.110 and
other requirements of this chapter; and
(2) may not be made if the expenditure is prohibited by AS 15.13.145. (§ 24 ch 48 SLA
1996)
_ Sec. 15.13.145. Money of the state and its political subdivisions. (a) Except as
rtes. (a) Only provided in (b) and (c) of this section, each of the following may not use money held by the
;expenditure entity to influence the outcome of the election of a candidate to a state or municipal office:
indent expen- ~~
~
(1) the state, its agencies, and its corporations;
ce, except an (2) the University of Alaska and its Board of Regents;
Ming budget of (3) municipalities, school districts, and regional educational attendance areas, or
l 15.13.100 r. mother political subdivision of the state; and
~`'
~ (4) an officer or employee of an entity identified in (1) - (3) of this subsection.
xpenditures fo (b) Money .held by an entity identified in (a)(1) - (3) of this section may be used to
~levsion, radiq influence the outcome of an election concerning a ballot proposition or question, but only
iat supports ~ .;
~`=if the funds have been specifically appropriated- for that purpose by a state law or a
;municipal ordinance.
c) Money held by an entity identified in (a)(1) - (3) of this section may be used
vertisement;;or,~ . (1) to disseminate information about the time and place of an election and to hold an
~rtify that this;
' 'election;
(2) to provide the public with nonpartisan information about a ballot proposition or
pproved by the uestion or about all the candidates seeking election to a particular public office.
?
q
:: (d) When expenditure of money is authorized by (b) or (c) of this section and is used to
a
d _
influence the outcome of an election, the expenditures shall be reported to the commission
nongr~~u~, _
e by
i
;- r
individual is required to report under AS 15.13.040. (§ 24 ch
~
budget of $250 ~~ ._ ,' in the same manner as an
'~ - ~ 48 SLA 1996)
Sec. 15.13.150. Election educational activities not prohibited. This chapter ~-
`does not prohibit a person from engaging in educational election-related communications
ce o£business corpo-' - ;and activities, including
.iberties Union, 978- E
Hied, 528 U.S. 1153;- ~_~ (1) the publication of the date and location of an election;
J69 (2000). (2) the education of students about voting and elections; ;'
13.040(d), (e) and (~) (3) the sponsorship of open candidate debate forums;
110, and this section
he state's interest in `,` (4) participation in get-out-the-vote or voter registration drives that do not favor a
ms and expenditures ,particular candidate, political party, or political position;
ents are not particu- `~ (5) the dissemination of the views of all candidates running for a particular office.
Life Comm. v. Miles; ~ ~ (§ 24 ch 48 SLA 1996)
entities. -Compel-
g the electorate with ~ Sec. 15.13.155. Restrictions on earned income and honoraria. (a) A candidate
rruption and avoiding „for the state legislature, for governor, or for lieutenant governor, including an individual
~thering the data nec
rive electioneering re campaigning as a write-in candidate for the office, may not
~nofAS 15.13.09Qan~1 ~ (1) seek or accept compensation for personal services that involves payments that are
s. Alaska'Right to Life '~ - not commensurate with the services rendered taking into account the higher rates
9th Cir. 2006).
-group entities. - °, generally charged by specialists in a profession; or
~~.
2 AAC 50.351 ALASKA ADMINISTRATIVE CODE 2 AA(
2 AAC 50.351. Independent expenditures.. _RepealE
5/14/80, Register 74; am 6/29/84, Register 90; repealed:
Register 156)
Editor's note: The substance of 2 AAC
50.351 was relocated to 2 AAC 50.270.
2 AAC 5®.352. Ballot measure activity. (a) A'person, incitid``
corporation or labor union, may make contributions to influEnc~
outcome of a ballot proposition.
(b) A person who makes contributions to influence the outcini
ballot proposition ~ ~~
(1) must report those contributions as required by AS 15 1~3`
' ~.
and ~'~
(2) may not make {*
(A) anonymous contributions; or
(B) contributions using the name of another, as set o'
2 AAC 50.258.
(c) A corporation, company, partnership, firm, association, oT•g<~n
tion, business trust, labor union, or publicly funded entity mad r;`
its contributions and expenditures under AS 1513.040(d) and (,
an individual if
(1) all contributions and expenditures to influence the outco-"~'
a ballot measure election are made from the organization's ge;:
day-to-day operating account; and
(2) the organization does not assess, collect, pool, or solicit m~
or anything of value for the purpose of influencing a ballot me ,-
election.
(d) A corporation, company, partnership, firm, association, or:
nation, business trust, labor union, or publicly funded entity that'. i
not meet the requirements in (c) of this section must register
report as a group.
(e) An individual who makes expenditures to influence the out~~'
of a ballot proposition election need not report those expenditures ifi
individual makes them in accordance with AS 15.13.040(h)'. ~ (°I
1/7/2001, Register 157) ~~
Authority: AS 15.13.010 AS 15.13.040 AS 15.13.065"- ~.
AS 15.13.030
2 AAC 5®.355. Loans. Repealed 1/4/86.
2 1~AC 5®.356. Ilse of public money. (a) Funds are speclficy
appropriated for the purposes of AS 15.13.145(b) if the approprat
body provides notice on the public record that the funds will-be used
influence the outcome of an election.
(b) In the absence of a specific appropriation, an officer or emplo
of an entity who is identified in AS 15.13.145(a)(4) may. use mo
338
~~
'`~:
~,
I AAt~'~'~ Z AAC 50.357
ADMINISTRATION 2 AAC 50.361
~peale "A
tled ,•. held by that entity to communicate about a ballot proposition or
_. question if the communication is made in the usual and customar
Ef y
.performance of the officer's or employee's duties.
(c) li or the purposes of AS 15.13.145(c)(2), information is nonparti-
' san if it does not advocate a position in an election. Nonpartisan
=information includes the official language of a ballot question
a
n,, I nc • . ~ ,
neutral ballot summary, or if provided for all candidates seeki
influE~"
, ng a
;particular office, the candidates' names, contact information
or state-
~
;;~: ,
ments.
outw" _ (d) If an entity or individual identified in AS 15.13.145(a)(1)-(4)
~~~ uses money held by the entity to make an election-related expenditure
-S 1 > ~ . ,
the expenditure must be. disclosed on a report of contributions
~~ or
'independent expenditures under AS 15.13.040(d) and (e) unless the
expenditure is made only to disseminate information about the time
°~ 'and place of an election or to hold an election. (Eff. 1/1/2001, Register
~~
s ;,~ t o~ 156)
Authority: AS 15.13A10 AS 15.13.030 AS 15.13.145
_.~;
y may ~ ,
d) ~ ~
2 .SAC 5®.3 e'7. Co~altributions in the name of another. Re-
pealed. (Eff. 1/4/86, Register 97; repealed 1/1/2001, Register 156)
~~
to out~a Edi.tor's note: The substance of 2 AAC
lcin ¢ ~u _
50.357 was relocated to 2 AAC 50.258.
'' '
~
~ 2 AAC 5.360. 1V.laxnicipalilies. (a) If a municipality seeks to
•
~~~
~ ~
influence the outcome of an election, using budgeted municipal funds
`
,
~
it shall report as an individual under AS 15.13.040(d) and (e).
tioii ~ '. (b) All communications which are paid for by a municipality and
?
~'~~
~ty~~th~ e ~ . which are related to an election are considered to be intended to
re~st'e ~' influence the outcome of an election unless they are only notices of
.the election or unless they are required by statute, charter, or ordi-
~.
the o ~ nance.
hture{ (c) The municipality shall file with the commission a list of candi-
~40(h dates and their mailing addresses within seven days fallowing the
deadline for filing for municipal office.
~;~: (d) If a municipality seeks to influence the outcome of an election
.13.Or, , .~? using funds contributed to it for that purpose, it shall register and
"
report as a group under AS 15.13.040(b) and (c) and AS 15.13.050
Vic, .
(Eff. 5/16/76, Register 58; am 1/4/86, Register 97; am 8/22/97, Register
~~ 143)
'' "
SpE sz fl'
~pro.hi~i•` ~~
Authority: AS 15.13.010 AS 15.13A40 AS 15.13.090
AS 15.13.030 AS 15.13.050
1 be use ~
2 ~~ 60.361. Reporting' by special interest ~'roups. Repealed
._ ___ y _;~~ 10/18/81.
.: ~~
~;,
339
;% ~J
Sponsored by: Oates
Introduction: July 13, 2009
Public Hearing: July 27, 2009
Enactment: July 27, 2009
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-005
A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, APPROPRIATING $500 TO MAKE EXPENDITURES
THAT COULD INFLUENCE THE OUTCOME OF AN ELECTION
CONCERNING ADVISORY BALLOT PROPOSITION #2 WHICH ASKS
THE QUALIFIED VOTERS IF THE CITY SHOULD INCREASE THE
SALES TAX FROM 4.0% TO 4.5% WITH THE UNDERSTANDING THAT
THE ADDITIONAL FUNDS ARE EXPECTED TO BE IN AN AMOUNT
SUFFICIENT TO COVER A PORTION OF THE PROPOSED
LIBRARY/MUSEUM OPERATING AND CONSTRUCTION COSTS
WHEREAS, in 2003, the community selected a new library/museum project as part of the
Seward Centennial celebration to reach completion by 2012, the 100th anniversary of the incorporation of
the city; and
WHEREAS, the estimated cost of the new library/museum including planning, design,
construction, project management, furniture and fixtures is $10 million; and
WHEREAS, on June 22, 2009 Resolution 2009-054 was approved by the city council which will
submit Advisory Proposition #2 to the qualified voters asking whether to increase the sales tax rate by
0.5% to fund operating and capital costs of the new library/museum, with the understanding that sales
tax revenues cannot be dedicated for a specific purpose; and
WHEREAS, a 0.5% increase in sales tax is expected to generate approximately $500,000 per
year that could assist paying the annual general obligation (GO) bond payments; and
WHEREAS, the intent for the increase in sales tax is expected to fund operating and capital
costs associated with the construction and ongoing maintenance of a new library/museum; and
WHEREAS, over $1 million has been committed to this project through private donations,
grants, city contributions and professional in-kind services; and
WHEREAS, the library/museum building committee plan includes raising $1 million from
private and individual foundations and donations, and $4-5 million from state and federal funding; and
WHEREAS, the remaining $5 million would come from general obligation (GO) bonds if
approved by the voters; and
~~
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-005
WHEREAS, the estimated annual debt service on general obligation (GO) bonds fora 25-year
period with an assumed 5.75% borrowing rate is approximately $380,000 per year, with the remainder of
the additional sales tax available to be used to pay for increased operating, repairs, and maintenance
costs; and
WHEREAS, choosing to increase the sales tax places the burden of the new library/museum
capital and operating costs on all individuals who benefit from city services, whether they live outside
the boundaries of the City of Seward or are visitors; and
WHEREAS, the city may need to expend municipal funds in order to educate the public about
this project; and
WHEREAS, the city council has determined it is in the public interest this issue be
submitted to the qualified voters of the city; and
WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted
municipal funds to influence the outcome of an election and require registering and reporting under
AS 14.13.040 and AS 15.13.050; and
WHEREAS, in order to educate the public in accordance with the provisions of 2AAC
50.360(b), the City Council must appropriate funds since the education process may influence the
outcome of an election; and
WHEREAS, under AS15.13.145, a municipality may not use money to influence the
outcome of an election concerning a ballot proposition unless the funds have been specifically
appropriated for that purpose by the elected body.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The City Council hereby appropriates and authorizes for expenditure $500, if
needed, from the city manager's training and education account # 1 O 1-1120-5160 to be used to
influence the outcome of an advisory vote regarding a proposed increase in sales tax of 0.5%.
Section 2. The City Council further directs and authorizes the city manager and other City
officers, officials, and employees, as may be appropriate, to register and to complete and file all
necessary reports, forms, and notices relating to election-related expenditures as required by law.
Section 3. This ordinance shall take effect ten (10) days following enactment.
~'`l
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-005
ENACTED by the City Council of the City of Seward, Alaska this 27th day of July, 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Jean Lewis
City Clerk
(City Seal)
.,.
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor Corbridge, City Council Members
~.
From: Jean Lewis, City Clerk ~~ ~~,
Agenda Item: Expending public funds that could influence the outcome
of an election - Librarv/Museum Sales Tax TnrrPacP
Advisory Proposition #2
BACKGROUND & JUSTIFICATION:
Advisory Proposition #2 will submit to the qualified voters the question of whether the city should
increase the sales tax from 4.0% to 4.5% with the understanding that the additional funds are
expected to be in an amount sufficient to cover a portion of the proposed Library/Museum operating
and construction costs.
AS 15.13.145 states that money held by a municipality may be used to influence the outcome of an
election concerning a ballot proposition or question, but only if those funds have been specifically
appropriated for that purpose by state law or municipal ordinance.
The city foresees material possibly being disseminated by the Library/Museum Building Committee.
Although the city is asking the qualified voters of the community to decide this issue, the city may
find it needs to disseminate information on this subject to educate the public, therefore, this non-code
ordinance authorizes the expenditure of public funds and provides the flexibility to expend funds if
needed. Such information could influence the outcome of the election.
The City is allowed to prepare and distribute neutral materials to educate the public on the
proposition before them. However, under AS 15.13.145, a municipality may not use money to
influence the outcome of an election unless the funds have been specifically appropriated for that
purpose by the elected body.
Since dissemination and postage would cost money, and the City may wish to educate the public on
this matter, this non-code ordinance is needed to use budgeted municipal funds and follow the
reporting requirements as stated in 2 AAC 50.360 and AS 15.13.140-155.
1NTF.NT~
To have budgeted funds available in case the city council found it needed to put out educational
materials related to this matter and the new Library/Museum Project for Advisory Proposition #2.
CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the
Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council
Rules of Procedures.
Other:
. ~9
FISCAL NOTE:
If needed, funds would come from the City Manager Training and Education account #101-1120-
5160.
Approved by Finance Department:
RECOMMENDATION:
City Council introduce and enact Non-Code Ordinance 2009-005 appropriating funds for the purpose
of possible expenditures to educate the public which could influence the outcome of an election
concerning advisory ballot proposition #2, which would increase the sales tax from 4.0 to 4.5% with
the understanding that the additional funds are expected to be in an amount sufficient to cover a
portion of the proposed Library/Museum operating and construction costs.
~ry
~~ ~ .
Sponsored by: Oates
Introduction: July 13, 2009
Public Hearing: July 27, 2009
Enactment: July 27, 2009
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-006
A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, APPROPRIATING $500 TO MAKE EXPENDITURES
THAT COULD INFLUENCE THE OUTCOME OF AN ELECTION
CONCERNING BALLOT PROPOSITION #3 WHICH ASKS THE
QUALIFIED VOTERS IF THE CITY SHOULD PURSUE THE ISSUANCE
OF GENERAL OBLIGATION (GO) BONDS NOT TO EXCEED $5 MILLION
DOLLARS TO FINANCE THE LIBRARY/MUSEUM CONSTRUCTION AND
CAPITAL COSTS
WHEREAS, in 2003, the community selected a new library/museum project as part of the
Seward Centennial celebration to reach completion by 2012, the 100th anniversary of the incorporation of
the city; and
WHEREAS, the estimated cost of the new library/museum including planning, design,
construction, project management, furniture and fixtures is $10 million; and
WHEREAS, on June 22, 2009, Resolution 2009-053 was approved by the city council which
will submit Proposition #3 to the qualified voters asking whether to incur debt and issue general
obligation bonds not to exceed $5 million dollars to finance the construction and other capital costs of
the Library/Museum Project; and
WHEREAS, general obligation bonds may only be issued following approval by the
qualified voters of the city; and
WHEREAS, after raising half of the estimated total cost of the project from other sources, the
remaining $5 million would come from the issuance of general obligation (GO) bonds; and
WHEREAS, the estimated annual debt service on general obligation (GO) bonds fora 25-year
period at an assumed 5.75% borrowing rate is approximately $380,000 per year; and
WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted
municipal funds to influence the outcome of an election and require registering and reporting under
AS 15.13.040 and AS 15.13.050; and
WHEREAS, in order to educate the public in accordance with the provisions of 2AAC
50.360(b), the City Council must appropriate funds since the education process may influence the
outcome of an election; and
~.
CITY OF SEWARD, ALASKA
NON-CODE ORDINANCE 2009-006
WHEREAS, under AS 15.13.145, a municipality may not use money to influence the
outcome of an election concerning a ballot proposition unless the funds have been specifically
appropriated for that purpose by the elected body.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The City Council hereby appropriates and authorizes for expenditure $500, if
needed, from the city manager's training and education account # 101-1120-5160 that may be used to
influence the outcome of the election for the purpose of educating the public on the issuance of
general obligation bonds for the Library/Museum Project.
Section 2. The City Council further directs and authorizes the city manager and other City
officers, officials, and employees, as may be appropriate, to register and to complete and file all
necessary reports, forms, and notices relating to election-related expenditures as required by law.
Section 3. This ordinance shall take effect ten (10) days following enactment.
ENACTED by the City Council of the City of Seward, Alaska this 27`'' day of July, 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Jean Lewis
City Clerk
(City Seal)
J~
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor Corbridge, City Council Members
--~
From: Jean Lewis, City Clerks '~,
...~-r
Agenda Item: Expending public funds that could influence the outcome
of an election -Library/Museum GO bond issuance
Proposition #3
BACKGROUND & JUSTIFICATION:
Proposition #3 will submit to the qualified voters the question of whether the city should pursue the
issuance of general obligation (GO) bonds not to exceed $5 million dollars to finance the
Library/Museum Construction and capital costs.
The city foresees material being disseminated by the Library/Museum Building Committee. In the
event the city found it needed to disseminate information on this subject to educate the public, this
non-code ordinance authorizes the expenditure of public funds and provides the flexibility to expend
funds if needed. Such information could influence the outcome of an election, therefore the city
would need to follow state reporting requirements in 2 AAC 50.360 and AS 15.13.140-155.
AS 15.13.145 states that money held by a municipality may be used to influence the outcome of an
election concerning a ballot proposition or question, but only if those funds have been specifically
appropriated for that purpose by state law or municipal ordinance.
The City is allowed to prepare and distribute neutral materials to educate the public on the
proposition before them. However, under AS 15.13.145, a municipality may not use money to
influence the outcome of an election unless the funds have been specifically appropriated for that
purpose by the elected body. If the city distributed materials, they would need to follow the reporting
requirements as stated in
INTENT:
To have budgeted funds available in case the city council found it needed to put out educational
materials related to this matter and the new Library/Museum Project for Proposition #3.
CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the
Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council
Rules of Procedures.
Other:
FISCAL NOTE:
If needed, funds would come from the City Manager Training and Education account # 101-1120-
5160.
33
Approved by Finance Department:
RECOMMENDATION:
~~
City Council introduce and enact Non-Code Ordinance 2009-006 appropriating funds for the purpose
of possible expenditures to educate the public which could influence the outcome of an election
concerning ballot proposition #3, which pursues the issuance of general obligation (GO) bonds not to
exceed $5 million dollars to finance the Library/Museum construction and capital costs.
~i
Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2009-057
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, ACCEPTING A GRANT IN THE AMOUNT OF $4,766.40 FROM
THE ALASKA HIGHWAY SAFETY OFFICE FOR 2009 FOURTH
QUARTER ASTEP DRIVING UNDER THE INFLUENCE (DUI)
ENFORCEMENT CAMPAIGN AND APPROPRIATING FUNDS
WHEREAS, the Seward Police Department has been awarded a Program Coordination
Grant from the Alaska Highway Safety Office, in the amount of $4,766.40; and
WHEREAS, the City is not required to provide any cash or in kind match; and
WHEREAS, the use of these funds must be for the purpose of providing overtime saturation
patrols by the Seward Police Department for the enforcement of DUI violations during July, August
and September of 2009; and
WHEREAS, these funds will be of essential assistance to the Seward Police Department in
the enforcement of DUI violations.
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 accept the 2009 ASTEP DUI
Enforcement, Alaska Highway Safety Office grant in the amount of $4,766.40 and enter into a grant
agreement.
Section 2. Funding in the amount of $4,766.40 is accepted to grant revenue account no.
101-0000-4680-0200 and appropriated to the police department's overtime account, no. 101-1210-
5020.
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 13`h
day of July, 2009.
~~
Agenda Statement
Meeting Date: July 13, 2009
To: Phillip Oates, City Manager
From: Tom Clemons, Chief of Police
Agenda Item: Alaska Highway Safety Grant (ASTEP DUI `09 Fourth Quarter
Enforcement)
BACKGROUND & JUSTIFICATION:
The Alaska Highway Safety Office, AHSO, has requested that the City of Seward continue to
participate in the Alaska Strategic Traffic Enforcement Partnership, ASTEP, DUI Overtime
Enforcement campaign by providing overtime saturation patrols. During selected holidays, the blitz
campaign, and assigned weekends, the Seward Police Department will conduct high-visibility DUI
enforcement patrols. AHSO has awarded a grant in the amount of $4,766.40 for July, August and
September 2009.
This program is a 100% grant funded project, with no local matching funds required.
The terms of the grant and the grant budget are attached.
INTENT:
The intent of this grant is to save lives by arresting and punishing alcohol and drug impaired drivers
and maintain current public perceptions of DUI enforcement issues.
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:
FISCAL NOTE:
There is no local funding required to match these grant funds.
Approved by Finance Department: ~~ /,~~~.-~c,
RECOMMENDATION:
City Council approve Resolution 2009-~, accepting a grant from the Alaska Highway Safety
Office in the amount of $4,766.40, and appropriating funds.
.~
i 0 : 7b f CC'i tS'itf4'J h'. C' `I
~iS I
~~ ~ ~; Notice to Proceed
~.._ .;,
<<. ~~
_.. _. _
Grantee Name and Address:
_ __
._Sewarti Police Oepanment _
Lt. Louis Tiner
State of Aiaskn
t>epanment of Tntnsponntion ttnd Pttblic Fltcililics
3112 Cluutnel Ur NO l3ox 11.25OU
hmeau AK 99R I I -25ft0
p' X17.4h,S.244(+
f 1f17-4155-4r)3l1
dot,aleska. gov/highwaysaf®fy
__... _
"You ma _. _... _
y proceed with the activities for the Categories and speclflc Tasks enumerated below In the Funding Summary.
Any activMles beyond the written scope and/or any costs above the price estimate in our Agreement require prior AHS4
approval and a Protect Revision. Actual cost underrun of the Contrad amount for any Category shall not routinely
accumulate for other Categories. AWSO reserves the right to retain or reallocate any remaining funds resulting from
such cost undemins.
Thla NTP is cumulatt>he and K superttrr~dea sll prior NTPs M~ dtl8 Apneiement4
The AHSO Administrator for this NTP is: Cindy Cashon
ieauso rot the htraa4rp envy AD078 F Podoy ao1.0 t) bY- ACOOpted for the Orantss by
6ipnature to Signature
Name Cindy Cashen Date
--.- _._ _.. Name. Lt.. Loult~Tiner
FUNDING SUMMARY
'total Amount
Approved for thb
Nl'P
S 4,788.40
Authorised Tasks
Aa authorized fn the Progrem Coordination Grant from July 1 to September 30,
2009.
Vehicle usage ie included et 58.00 p~ hour ae referenced in the Program
CooMfn®tlon Qrant
Collocation Code
24481924
Leda~r Code
301A09A2
Fr C n I rem b- Actbn
Signature
Pragrom Control AoeM _ Nemn• Kef
AH80 uw only
Program Cade
67870
Encumbrance Numea. Account Code
259ti1198 77438
7ota1 Amount
Authorizfzd to Date
$ to,l2e.eo
NTP No: 4
ProJed No: 164AL 09-01-01
Project End pate: 9130/00
State of Alaska
Department of Transportation and Public Facilities
P.O. Box 112500; Rm #200
Juneau AK 98801
Ph: 807.465-2448
Fx: 907-485-4030
www.dot. alaska.gov/highweysafety
Program Coordination Grant
Impair®d Orlving
Coordinator Federal runalnp rear:
2009
Alaska Strategic Traffic Enforcement 154AL 09-01-01
Partnership DUI Overtime
Enlforcement Grant
PurposelObJectlves
In order to reduce deaths and injuries caused by impaired drivers and to increase
compliance with Alaska's primary seat belt law, the Seward Police Department will
conduct high-visibility seat belt and DUI enforcement as detailed in the Alaska Strategic
Enforcement Partnership Enforcement Plan submitted to the Alaska Highway Safety Office
in September 2008- The Seward Police Depgrtment agrees to participate in the following
enforcement blitzes from October 1, 2008 through S®ptember 30, 2009.
/ Required DUI Enforcement: to include the major Wolidays
Month-by-Month Breakdown
(Refer to enforcement plan for detail of seat belt end DUI enforcement times):
Month Hours - OUI Enforcement _ Monthly BudSet
Jul 30 hrs DUI ., $ 1 607.40
Au ust 40 hrs DUI $ 21143.20 .-_
September 10 hrs DUI $ 535.80
Vehicle Usa a $6.00 per hour $ 480.00
Actual cost of overtime to includ® benefits is not to exceed the following amount:
64,786.40 including v®hicle usage.
Activity covered by this grant must be completed by March 31, 2009. Reimbursement
requests must be submitted to the Alaska Highway Safety Office no later then October 15,
2009.
To receive reimbursement for personnel services the department must provide overtime
she®ts, the hourly rates far each officer along with the activity sheets showing total hours
being submitted for reimbursement.
.~ 38
r.
Expenses are detailed on page 2 of grant.
Budget Summary:
BUDGET CATEGORY BUDGET AMOUNT
100 Personal Services _ $ 4,288.40
200 Travel 8. Per piem
300 Vehicle Usa a $ 480.00
400 Commodities __~~_ _
500 E ui ment
TOTAL .. _.-
~ ~ ~ S 1 787.40
Signed:
Pirojact * 164AiL 08.01-01
CC 24491924
LC..._ 30180982 ..............
PJ 80255.
PCiM Codo 57870......
EN ~ 2595168
Grantee's Project Director Date
Governor's H afety Representativ® Date
39
Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2009-058
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, ACCEPTING A GRANT IN THE AMOUNT OF $5,004.72 FROM
THE ALASKA HIGHWAY SAFETY OFFICE FOR 2009 THIRD AND
FOURTH QUARTER ASTEP SEATBELT ENFORCEMENT CAMPAIGN
AND APPROPRIATING FUNDS
WHEREAS, the Seward Police Department has been awarded a Program Coordination
Grant from the Alaska Highway Safety Office, in the amount of $5,004.72; and
WHEREAS, the City is not required to provide any cash or in kind match; and
WHEREAS, the use of these funds must be for the purpose of providing overtime saturation
patrols by the Seward Police Department for the enforcement of seatbelt violations during April,
May, June, July, August and September 2009; and
WHEREAS, these funds are essential to the Seward Police Department's ability to enforce
seatbelt violations.
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 accept the 2009 ASTEP Seatbelt
Enforcement, Alaska Highway Safety Office grant in the amount of $5,004.72 and enter into a grant
agreement.
Section 2. Funding in the amount of $5,004.72 is hereby accepted to grant revenue account
no. 101-0000-4680-0200 and appropriated to the police department's overtime account, no. 101-
1210-5020.
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 13`"
day of July, 2009.
J ~. ~ O
Agenda Statement
Meeting Date: July 13`h, 2009
To: Phillip Oates, City Manager
From: Tom Clemons, Chief of Police
Agenda Item: Alaska Highway Safety Grant (ASTEP SEATBELT '09 Third and Fourth
Quarter Enforcement)
BACKGROUND & JUSTIFICATION:
The Alaska Highway Safety Office, AHSO, has requested that the City of Seward continue to
participate in the Alaska Strategic Traffic Enforcement Partnership, ASTEP, Seatbelt Overtime
Enforcement campaign by providing overtime saturation patrols. During selected holidays, the blitz
campaign, and assigned weekends, the Seward Police Department will conduct high-visibility
Seatbelt enforcement patrols. AHSO has awarded a grant in the amount of $5,004.72 for April, May,
June, July, August and September 2009.
This program is a 100% grant funded project, with no local matching funds required.
The terms of the grant and the grant budget are attached.
INTENT:
The intent of this grant is intended to reduce deaths and injuries by increasing compliance with
Alaska's primary seat belt law.
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:
FISCAL NOTE:
There is no local funding required to match these grant funds.
Approved by Finance Department: r~2.~~c,~J ~i~~i,L,~,~,
RECOMMENDATION:
City Council approve Resolution 2009-~, accepting a grant from the Alaska Highway Safety
Office in the amount of $5,004.72, and appropriating funds.
4 ~.
State of Alaska
Department of Transportation and Public Facilities
3132 Channel Dr PO Box 112500
Notice to Proceed JtmeauAK99811-2500
p:907-465-2446
f: 90765-4030
dot_alaska.gov/highwaysafety
Grantee Name and Address: j Project Ti#le:
Seward Poltce Department _____ ASTEP C10T Enforcement.. _ _ _ -
Lt. Louis Tiner
COS84266
You may proceed with the activities for the Categories and specific Tasks enumerated below in the Funding Summary.
Any activities beyond the written scope andlor any costs above the price estimate in our Agreement require prior AHSO
approval and a Project Revision. Actual cost underrun of the Contract Amount for any Category shall not routinely
accumulate for other Categories. AHSO reserves the right to retain or reallocate any remaining funds resulting from
such cost underruns.
This NTP is cumulative and if supersedes all prior NTPs for Phis Agreemerrf.
The AHSO Administrator for this NTP is: Cindy Cashen i
Issued fore Contracting Ag cy per A OT&PF Po6cy #01 1.Q by: Acxepted for the Grantee by: j
~~~~
Signature Date Signature Date
Name: Cindy Cas Name: Lt. Louis Tiner
FUNDING SUMMARY
Tota{ Amount
Approved for this
NTP
Authorized Tasks Total Amount
Authorized to Date
$5,004.72 As au#horized in the Program Coordination Grant from April 1, 2009 to
September 30, 2009.
$7,864.56
VehiGe usage is included at $6.00 per hour as referenced in the Program
Coordination Grant.
AHSO use only
Collocation Code Prooram Code NTP No: 3
24461910 57870 Project No: 402PT 09-08-03
Project End Date: 9!30/09
Ledger Code Encumbrance Number Account Code
30189982 2595182 77436
Project Control Progr~nming Action
rl _ t ~~ , /L, ,%
f~ C ~ ~--
Signature Date
Program ControE Agent-Name: Bob Friend
~~
Department of Transportation and Public Facilaities
P.O. Box 112500; Rm #200
Juneau AK 99801
Ph: 907-465-2446
Fx: 907-465-4030
www.dot.aiaska.gov/highwaysafety
Program Coordination Grant
Program Area: Project Coordinator:
Seatbelt Enforcement
Project Tifie: Project Number.
Alaska Strategic Traffic Enforcement
Partnership GIOT Overtime 402PT 09-06-03
Enforcement Grant
Federal Funding Year:
2Q09
PurposetObjectives
)n order to reduce deaths and injuries caused by impaired drivers and to increase
compliance with Alaska's primary seat belt law, the Seward Police Department will
conduct high-visibility seat belt and DUI enforcement as detailed in the Alaska Strategic
Enforcement Partnership Enforcement Plan submitted to the Alaska Highway Safety Office
in September 2008. The Seward Police Department agrees to participate in the following
enforcement blitzes from October 1, 2008 through September 30, 2009.
/ Required DUI Enforcement: to include the major Holidays
Month-by-Month Breakdown
(Refer to enforcement plan for detail of seat belt and DUI enforcement times):
Month
nl
° Hours -- CIOT Enforcement Monthl Bud et
'
'
Ma 8 hrs CIOT
8 hrs CLOT $ 428.64
$ 428
fi4
June 20 hrs CLOT .
$ 1
071
60
Jul 20 hrs CIOT ,
.
$ 1
071
60
Au ust 8 hrs GIOT ,
.
$ 428
64
Se tember 20 hrs CLOT .
$ 1
071
60
Vehicle Usa a $6.00 er hour ,
.
$ 504.00
Actual cost of overtime to include benefits is not to exceed the following amount:
$5,004.72 including vehicle usage.
Activity covered by this grant must be completed by September 30, 2009. Reimbursement
requests must be submitted to the Alaska Highway Safety Office no later than October 15,
2009.
To receive reimbursement for personnel services the department must provide overtime
sheets, the hourly rates for each officer along with the activity sheets showing total hours
being submitted for reimbursement.
Expenses are detailed on page 2 of grant.
Budget Summary:
BUDGET CATEGORY BUDGET AMOUNT
100 Personal Services $ 4,500.72
200 Travel & Per Diem
300 Vehicle Usa e $ 504.00
400 Commodities
500 E ui ment
TOTAi_ $ 5,004.72
Project # 402PT 09-06-03
CC 24461910
LC 30189982
PJ 80227
PGM Code 57870
RSA #
Signed:
Grantee's Project Director Date
' ~ ,~
Governo-'s H Safety Representative Da e
~~
Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2009-059
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE CITY MANAGER TO SIGN AN
EXTENSION OF A SPECIAL SERVICES CONTRACT BETWEEN THE
CITY OF SEWARD AND THE DEPARTMENT OF PUBLIC SAFETY
PROVIDING DISPATCH AND CLERICAL SERVICES TO PUBLIC
SAFETY EMPLOYEES IN THE SEWARD AREA FOR FORTY EIGHT
THOUSAND AND FIVE HUNDRED DOLLARS 048,500.00)
WHEREAS, the City of Seward has entered into an agreement for the past thirteen (13)
fiscal years to provide dispatch and clerical services to Alaska State Troopers and Fish and Wildlife
Protection Officers in the Seward Community; and
WHEREAS, the amount of compensation for dispatch services has been Forty Eight
Thousand and Five Hundred Dollars ($48,500.00); and
WHEREAS, the attached extension would continue the services at the current rate through
.June 30, 2010.
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 sign an extension of a Special Services
contract between the City of Seward and the Department of Public Safety providing dispatch and
clerical services to public safety employees in the Seward area for Forty Eight Thousand and Five
Hundred Dollars ($48,500.00).
Section 2. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 13th
day of July 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
~J
Agenda Statement
Meeting Date: July 13, 2009
From: Tom Clemons, Chief of Police
Through: Phillip Oates, City Manager
Agenda Item: Extension of Special Services Contract between
the Department of Public Safety and the City of Seward
BACKGROUND & JUSTIFICATION:
The City of Seward has entered into an agreement for the past thirteen (13) fiscal years to provide
dispatch and clerical services to the Alaska State Troopers and Fish and Wildlife Protection Officers
in the Seward community. The amount of compensation for that contract has been Forty-eight
Thousand and Five Hundred Dollars ($48,500.00). The attached extension would continue the
services at the current rate through June 30, 2010.
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:
FISCAL NOTE:
The City of Seward will receive the sum of Forty-eight Thousand and Five Hundred Dollars
($48,500.00) from the State of Alaska for this contract. These funds have been anticipated and are
already included in the 2009 budget.
Approved by Finance Department
RECOMMENDATION:
Recommend approval of Resolution 2009=~ authorizing the City Manager to sign an extension of a
Special Services contract between the City of Seward and the Deparhnent of Public Safetyproviding
dispatch and clerical services to public safety employees in the Seward area for Forty-eight Thousand
and Five Hundred Dollars ($48,500.00).
~6
ALASKA DEPARTMENT OF PUBLIC SAFETY
CONTRACT FOR SPECIAL SERVICES
July 1, 2009 to June 30, 2010
GENERAL PROVISIONS
The parties. The parties to this contract are the Alaska Department of Public
Safety (hereinafter referred to as the "Department") and the City of Seward (hereinafter
referred to as the "City").
Sole Agreement. The City and the Department undertake this contract under the
terms set forth below. This contract is the sole agreement between the parties relating
to special services, and there are no other agreements, express or implied.
Effective Date/Termination/Amendments. This contract is effective July 1, 2009
and continues in force until June 30, 2010. Either party may terminate the agreement
with thirty (30) days written notice to the other party. This agreement may be amended
by written agreement of the parties.
The Department will pay the City for services provided in accordance with, and under
the terms of, this contract. Payments will be made quarterly in the amount of
$12,125.00, for a total of $48,500.00. Payment for services provided under this contract
will be made in four payments in the amount of and covering the period indicated below:
Period Covered Amount Payment Process
Can Be Initiated
07/01 /09 - 09/30/09 $12,125.00 10/01 /09
10/01/09 - 12/31/09 $12,125.00 01/01/10
01/01/10 - 03/31/10 $12,125.00 04/01/10
04/01/10 - 06/30/10 $12,125.00 06/01/10
12 Month Total $48,500.00
2. The City will provide and perform the services specified in this contract to the
satisfaction of the Department, in support of Department personnel and
operations.
SPECIFIC PROVISIONS
3. The City will:
a. Provide full dispatch services, APSIN/NCIC services, telephone answering
and message taking services, and public reception services relative to
Department business 24 hours each day for the Department and
Department Personnel working in vehicle, vessel or foot, in aircraft or any
other means in the greater Seward and Lower Kenai Peninsula Region;
Page 1 of 2 ~ ~~
ALASKA DEPARTMENT OF PUBLIC SAFETY
CONTRACT FOR SPECIAL SERVICES
July 1, 2009 to June 30, 2010
b. Provide full clerical services and support to Department personnel,
including access to and use of the office copying machine and fax
machine; to include typing of criminal complaints, transcription of taped
statements, typing services as needed for completion of police reports;
c. Permit continued access to and utilization of professional facilities and
equipment instrumental to the overall efficient and effective operation of
law enforcement and emergency response component, i.e.; squad room,
kitchen, weight and exercise room, interview rooms, storage rooms,
evidence processing room and equipment, a secure locked evidence room
accessible only by authorized AST personnel, Data Master, video and
training material, other general building facilities including parking for state
vehicles, ATV and snow machines.
d. Permit continued transport and security of prisoners from the Seward City
Jail to Seward Court for hearings and arraignments
IN WITNESS OF THIS AGREEMENT, the undersigned duly authorized officers have
subscribed their names on behalf of the City and the Department respectively.
For the City of Seward:
By
Printed Name
Official Title
Date
For the Department of Public Safety:
By
Printed Name
Official Title
Date
Page 2 of 2 4
Sponsored by: Oates
CITY OF SEWARD, ALASKA
RESOLUTION 2009-060
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SEWARD, ALASKA, ACCEPTING CAPITAL FUNDING IN THE
AMOUNT OF $30,581.00 FROM THE STATE OF ALASKA IN
ORDER TO INSTALL A NEW ROOF OVER THE STEPS AND
EXTERIOR DOOR OF THE SEWARD COMMUNITY JAIL, AND
APPROPRIATING FUNDS
WHEREAS, the City of Seward Police Department submitted a request to the
State of Alaska Department of Corrections requesting capital funding to install a new
roof over the Seward Community Jail's steps and replace the exterior door ;and
WHEREAS, these capital projects were funded by the Legislature in the State of
Alaska's Capital Bill, Chapter 29; SLA2008; Section 13; Page 51: Line 8; and
WHEREAS, the City of Seward Community Jail received a capital contract
award from the Department of Corrections to receive $30,581.00; and
WHEREAS, the contract says that "if there are any surplus funds available after
the listed items have been procured, the remaining funds may be used for other
maintenance, repair and renovation, fire, life safety and security concerns"; and
WHEREAS, these funds do not require a local match.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEWARD, ALASKA, that:
Section l: The City Manager and/or City Council is authorized to enter into an
agreement accepting capital funds.
Section 2: Funding in the amount of $30,581.00 is hereby accepted from State
grant fund account 103-1030-4680-0200 and appropriated to the Capital Acquisition
Fund repairs account no. 103-1030-5380, for the purpose ofjail-related capital repairs.
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 day 13`" day of July, 2009.
~~
Agenda Statement
Meeting Date: July 13, 2009
To: Phillip Oates, City Manager
From: Tom Clemons, Chief of Police
Agenda Item: Accepting Capital funds from the State of Alaska,
~• Department of Corrections for Repairs to the Community Jail
BACKGROUND & JUSTIFICATION:
The City of Seward has received a Capital Contract from the State of Alaska to receive capital funds
in the amount of $30,581.00 from the Department of Corrections. Funds will be used to install a
new roof over the downstairs exterior steps and exterior door of the Jail.
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:
FISCAL NOTE:
There is no match required to accept these funds.
Approved by Finance Department J'~ ~ ~ ~1L~
RECOMMENDATION:
Recommend approval of Resolution 2009- accepting $ 30,581.00 of Capital funding from the
State of Alaska, Department of Corrections to make repairs to the exterior door and stairway of the
Seward Community Jail.
50
STATE OF ALASKA
DEPARTMENT OF CORRECTIONS
LOCAL COMMUNITY JAILS PROGRAM
FY2009 CAPITAL PROJECT
COMMUNITY JAIL NAME: Seward Community Jail
AMOUNT OF CAPITAL FUNDS: $ 30,581.00
The following is a breakdown of the maintenance, repair and renovation, fire and life
safety, and security equipment that has been approved by the Department of Corrections
for expenditure by the City of Seward, Alaska.
~ New exterior door
• Cover the south side steps
These capital projects were funded by the Legislature in the State of Alaska's Capital
Bill, Chapter 29; SLA 2008; Section 13; Page 51; Line 8. The appropriation request to
the Legislature was based upon the capital budget information that you provided to the
Department of Corrections. If there are any surplus funds available after the listed items
have been procured, the remaining funds may be used for other maintenance, repair and
renovation, fire, life safety, and security concerns, as long as the intended purchase
relates to the confinement of the State of Alaska's prisoners.
Please sign below and return the original copy to:
Alaska Department of Corrections
Attn: Leslie Houston, Director
Administrative Services
P.O. Box 112000
Juneau, Alaska 99811-2000
Upon receipt of the signed copy of this Capital Contract, the Department of Corrections
will issue a check in the amount of $30,581.00 to the City of Seward, Alaska.
For the Borough/City:
By: ,~
~i rlanc2 ~i~~ G~
Official Title
For the Department of Corrections
By:
Director, Administrative Services
Official Title
Date:_ 5'~S X09
Date:
5~
Department of Corrections
Community Jails I Capital Requests
Community Jail:
Seward Community Jail
Project Manager.
Sgt. Deland
Contact Phone Number.'
(907)224-2710
Contact E-mail:
sdeland@cityofseward.net
Capital Item:
New exterior door
Estimated Cost:
Door cost $2,400.
Type of Capital Item:
^ Maintenance
® Repair
^ Equipment
^ Other (Detail) Labor
Brief Description:
The south side exterior door is rusting out, won't close properly and
has to be slammed shut. This poses a great security risk. It should
be replaced.
Version 10242007 ~ 2 Pege 9
Department of Corrections
Community Jails /Capital Requests
Community Jail:
Seward Community Jail
Project Manager.•
Sgt. Deland
Contact Phone Number.•
(907)224-2710
Contact E-mail:
sdeland@cityofseward. net
Capital Item:
Cover the south side steps
Estimated Cost:
Roof Cost $27,249.60.
Engineering cost $2,724.96
Type of Capital Item:
^ Maintenance
® Repair
^ Equipment
^ Other (Detail) Labor
Total $ 29,974.56 ~jU ~ v
Brief Description:
We need to install a new roof over the stairwell to keep the stairs free
from snow and ice for the safety of the officers and detainees. The
roof would also keep the door at the bottom of the steps from rusting
out. Over the last few years the door had to be replaced least twice.
Version 10242007
Page 10
Sponsored by: Administration
CITY OF SEWARD, ALASKA
RESOLUTION 2009-061
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA REQUESTING THAT THE STATE OF ALASKA EXEMPT
FLOOD MITIGATION PROJECTS IN THE SEWARD AREA FROM THE
GRAVEL ROYALTY FEE, AS IT APPLIES TO ALL FLOWING WATERS
INTO RESURRECTION BAY, IN THE VICINITY OF SEWARD ALASKA
WHEREAS, the Seward Bear Creek Flood service area, Kenai Peninsula Borough and
the City of Seward are working to lessen impacts to flooding in the Seward area; and
WHEREAS, the State of Alaska Department of Natural Resources charges a mineral
resources extraction royalty fee of $3.25 per cubic yard for gravel; and
WHEREAS, this extraction royalty fee makes flood control projects more expensive
and cost prohibitive; and
WHEREAS, charging a royalty fee for gravel extraction for flood mitigation projects is
contrary to protecting public health and safety; and
WHEREAS, stream bed loading due to sediment deposits increase the frequency of
flooding in the Seward area; and
WHEREAS, the Seward Bear Creek Flood Service Area Board, the Kenai Peninsula
Borough and the City of Seward are working towards stream bed load removal and other flood
control options in the Seward area; and
WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force voted on April 15,
2009 in support of the State of Alaska exempting flood mitigation projects in the Seward Area
from the gravel royalty fee, as it applies to all flowing waters into Resurrection Bay, in the
vicinity of Seward, Alaska and requested other legislative bodies do the same; and
WHEREAS, the Seward Port and Commerce Advisory Board, the Seward Planning and
Zoning Commission and the Seward Bear Creek Flood Service Area Board have voted
unanimously in support of this request.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA, that:
Section 1. All flowing waters into Resurrection Bay in the vicinity of Seward, Alaska are
continually filling with sediment and debris that must be removed to lessen the flood events in
the Seward area.
Section 2. The gravel deposits in these streams need to be removed regularly to ensure
the economic viability of the community as well as ensure public health and safety.
~'~
CITY OF SEWARD, ALASKA
RESOLUTION 2009-061
Section 3. Council requests that the State exempt flood mitigation projects in the Seward
gravel royalty fee for area from its gravel extraction fee.
Section 4. Copies of this resolution shall be sent to Honorable Governor Sarah Palin,
Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner, Representative Mike
Chaenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton, and Commissioner of
Alaska Department of Natural Resources Tom Irwin.
Section 5. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED by the City Council of the City of Seward, this 13`h day of
July, 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
VACANT:
ATTEST:
Jean Lewis
City Clerk, CMC
(City Seal)
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor and Council
From: Community Development Director Christy Terry
Through: City Manager Phillip Oates
Agenda Item: Requesting that the State of Alaska Exempt Flood Mitigation Projects in the
Seward Area from the Gravel Royalty Fee, as it Applies to All Flowing
Waters into Resurrection Bay, in the Vicinity of Seward, Alaska
BACKGROUND & JUSTIFICATION:
The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on January
20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear Creek Flood
Service Area. The Task Force has made recommendations to address important flood mitigation items
and has requested legislative support from the local boards, commissions, the Seward City Council and
the Kenai Peninsula Borough Assembly.
The Seward Bear Creek Flood Service Area Board, Kenai Peninsula Borough and the City of Seward are
working to lessen impacts to flooding in the Seward area. The State of Alaska Department of Natural
Resources charges a mineral resources extraction royalty fee of $3.25 per cubic yard for gravel regardless
of it being used for flood mitigation. This extraction royalty fee makes flood control projects more
expensive, cost prohibitive and creates a situation where the gravel is more expensive to remove than its
value. This policy of charging a royalty fee for gravel extraction for flood mitigation projects is contrary
to protecting public health and safety. The reality is that stream bed loading due to sediment deposits
increase the frequency of flooding in the Seward area.
The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough and the City of Seward
are working towards stream bed load removal and other flood control options in the Seward area. The
Kenai Peninsula Borough Flood Plain Task Force identified this issue as an important item to implement
in order to address the flood plain issues in this area. The Task Force voted on Apri115, 2009 in support
of the State of Alaska exempting flood mitigation projects in the Seward Area from the gravel royalty fee,
as it applies to all flowing waters into Resurrection Bay, in the vicinity of Seward, Alaska.
At the request of the Kenai Peninsula Borough Assembly, copies of this resolution shall be sent to
Honorable Governor Sarah Paain, Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom
Wagoner, Representative Mike Chaenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton,
and Commissioner of Alaska Department of Natural Resources Tom Irwin.
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: N/A Approved by Finance Department:
~~
RECOMMENDATION:~~
Approve Resolution 2009- Requesting that the State ofAlaska Exempt Flood Mitigation Projects in the
Seward Area fro the Gravel Royalty Fee, as it Applies to All Flowing Waters into Resurrection Bay, in the
Vicinity of Seward, Alaska.
5 "l
Introduced by:
Date:
Action:
Vote:
KENAI PENINSULA BOROUGH
RESOLUTION 2009-044
Long, Mayor
05/19/09
Adopted as Amended
9 Yes, 0 No, 0 Absent
A RESOLUTION REQUESTING THAT THE STATE OF ALASKA EXEMPT FLOOD
MITIGATION PROJECTS IN THE SEWARD AREA FROM THE GRAVEL
EXTRACTION FEE, AS IT APPLIES TO ALL FLOWING WATERS INTO
RESURRECTION BAY, IN THE VICINITY OF SEWARD, ALASKA
WHEREAS, the Seward-Bear Creek Flood Service Area and the Kenai Peninsula Borough are
working to lessen impacts to flooding in the Seward area; and
WHEREAS, the State of Alaska Department of Natural Resources charges a mineral resources
extraction fee of $3.25 per cubic yard for gravel; and
WHEREAS, this extraction fee makes flood control proj ects more expensive and cost prohibitive;
and
WHEREAS, charging an extraction fee for gravel extracted for flood mitigation projects is
contrary to protecting public health and safety; and
WHEREAS, streambed loading due to sediment deposits increase the frequency of flooding in the
Seward area; and
WHEREAS, the Seward-Bear Creek Flood Service Area Board and the Kenai Peninsula Borough
are working toward streambed load removal and other flood control options in the
Seward area; and
WHEREAS, on April 1, 2009, the Flood Plain Task Force adopted a resolution recommending that
the State of Alaska exempt flood mitigation property from the gravel extraction fee;
and
WHEREAS, on May 18, 2009, the Seward-Bear Creek Flood Service Area considered this
resolution and recommended adoption by unanimous consent;
NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI
PENINSULA BOROUGH:
SECTION 1. That all flowing waters into Resurrection Bay in the vicinity of Seward, Alaska are
continually filling with sediment and debris that must be removed to lessen the flood
events in the Seward area.
Kenai Peninsula Borough, Alaska
Resolution 2009-044
Page 1 of 2
~~
SECTION 2. The gravel deposits in these streams need to be removed regularly to ensure the
economic viability of the community as well as ensure public health and safety.
SECTION 3. That the Kenai Peninsula Borough Assembly requests that the State exempt flood
mitigation projects in the Seward area from its gravel extraction fee.
SECTION 4. The Kenai Peninsula Borough Assembly requests that other concerned local boards
and commissions pass similar declarations in support of this resolution.
SECTION 5. That copies of this resolution shall be sent to the Honorable Governor Sarah Palin,
Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner,
Representatives Mike Chenault, Mike Hawker, Kurt Olson, Woodie Salmon, and
Paul Seaton, Commissioner of Alaska Department of Natural Resources Tom Irwin,
Kenai Peninsula Borough Road Service Area Board, Seward-Bear Creek Flood
Service Area Board, and the Kenai Peninsula Borough Planning Commission.
SECTION 6. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 19TH
DAY OF MAY 2009.
Milli Martin, Assembly President
ATTEST:
Johni Blankenship, Borough Clerk
Yes: Fischer, Knopp, Long, Pierce, Smalley, Smith, Sprague, Superman, Martin
No: None
Absent: None
Resolution 2009-044 Kenai Peninsula Borough, Alaska
Page 2 of 2 ~
:J
SECTION 2. The gravel deposits in these streams need to be removed regularly to ensure the
economic viability of the community as well as ensure public health and safety.
SECTION 3. That the Kenai Peninsula Borough Assembly requests that the State exempt flood
mitigation projects in the Seward area from its gravel extraction fee.
SECTION 4. The Kenai Peninsula Borough Assembly requests that other concerned local boards
and commissions pass similar declarations in support of this resolution.
SECTION 5. That copies of this resolution shall be sent to the Honorable Governor Sarah Palin,
Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner,
Representatives Mike Chenault, Mike Hawker, Kurt Olson, Woodie Salmon, and
Paul Seaton, Commissioner of Alaska Department of Natural Resources Tom Irwin,
Kenai Peninsula Borough Road Service Area Board, Seward-Bear Creek Flood
Service Area Board, and the Kenai Peninsula Borough Planning Commission.
SECTION 6. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 19TH
DAY OF MAY 2009.
ATTEST:
Johni Blankenship, Borough Clerk
Milli Martin, Assembly President
Yes: Fischer, Knopp, Long, Pierce, Smalley, Smith, Sprague, Superman, Martin
No: None
Absent: None
Resolution 2009-044
Page 2 of 2
o
Kenai Peninsula Borough, Alaska
Sponsored by : Administration
CITY OF SEWARD, ALASKA
RESOLUTION 2009-062
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA REQUESTING THAT THE STATE OF ALASKA REVOKE ITS
MARCH 20, 2006 NAVIGABILITY DETERMINATION AS TO SALMON
CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL
LOCATED IN THE VICINITY OF SEWARD, ALASKA
WHEREAS, the State of Alaska Department of Natural Resources has changed
positions on the issue of navigability on several occasions; and
WHEREAS, the Seward Bear Creek Flood Service Area, the Kenai Peninsula Borough
and the City of Seward are working to lessen impacts to flooding in the Seward area; and
WHEREAS, the State of Alaska Department of Natural Resources (DNR) charges a
royalty fee on all gravel materials removed from these areas; and
WHEREAS, this royalty fee makes flood control projects more expensive and cost
prohibitive; and
WHEREAS, the Bureau of Land Management recommends that all water bodies, with
the exception of Bear Lake, be considered administratively non-navigable in T.1N R. lE, T. 1N
R. 1 W, T.2N R.1 W, T.1 S R. 1 W, T. 1 S R.1 E; and
WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water
body to be usable as a highway for the transportation of people or goods; and
WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force voted unanimously on
April 1, 2009 in support of the State of Alaska revoking the navigability determination on
Salmon Creek, Fourth of July Creek and Sawmill Creek and requested other legislative bodies do
the same; and
WHEREAS, the Seward Port and Commerce Advisory Board, the Seward Planning and
Zoning Commission and the Seward Bear Creek Flood Service Area Board have all voted
unanimously in support of this request.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA, that:
Section 1. Council requests the State of Alaska revoking its March 20, 2006 navigability
determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the
vicinity of Seward, Alaska.
Section 2. Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as
defined by and in to the Daniel Ball test, best survey practices, and are not subject to the
submerged land act, which, according to State of Alaska policy on Navigability, on the website
~i
CITY OF SEWARD, ALASKA
RESOLUTION 2009-062
http://dnr.alaska.gov/mlw/nav/nav~olicy.htm, is the accepted and correct standard for
determining navigability.
Section 3. The March 20, 2006 Determination of Navigability refers to extreme gradients
as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks listed as
navigable in the 2006 determination contain reaches of these same "extreme" gradients as
expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections.
Section 4. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED by the City Council of the City of Seward, this 13`h day of
July, 2009.
THE CITY OF SEWARD, ALASKA
Clark Corbridge, Mayor
AYES:
NOES:
ABSENT:
ABSTAIN:
VACANT:
ATTEST:
Jean Lewis
City Clerk, CMC
(City Seal)
62
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor and Council
From: Community Development Director Christy Terry
Through: City Manager Phillip Oates
Agenda Item: Requesting that the State of Alaska Revoke its
March 20, 2006 Navigability Determination as to
Salmon Creek, Fourth of July Creek and Sawmill
Creek, Allocated in the Vicinity of Seward, Alaska
BACKGROUND & USTIFICATION•
The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly
on January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear
Creek Flood Service Area. The Task Force has made recommendations to address important flood
mitigation items and has requested legislative support from the local boards, commissions, the
Seward City Council and the Kenai Peninsula Borough Assembly.
The State of Alaska Department of Natural Resources has changed positions on the issue of
navigability on several occasions. The Seward Bear Creek Flood Service Area Board, the Kenai
Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward
area. Additionally, the State of Alaska Department of Natural Resources (DNR) charges a royalty
fee on all gravel materials removed from these areas which makes flood control projects more
expensive and cost prohibitive. If approved, this resolution will be sent to Natural Resource Manager
Scott Ogan in support of the letter sent by Borough Mayor David Carey on Apri17, 2009.
Currently, the Bureau of Land Management recommends that all water bodies, with the
exception of Bear Lake, be considered administratively non-navigable in T.1N R. lE, T. 1N R. 1 W,
T.2N R.1W, T.1SR. 1W, T. 1S R.lE. Also, Alaska DNR policy interprets the Daniel Ball test as
requiring the water body to be usable as a highway for the transportation of people or goods. There
are three creeks in our area that have been recently reclassified as navigable that should be taken off
the list.
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: N/A Approved by Finance Department:
RECOMMENDATION:
Approve Resolution 2009-062 Requesting that the State of Alaska Revoke Its march 20, 2006
Navigability Determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek.
63
Introduced by
Date:
Action:
Vote:
KENAI PENINSULA BOROUGH
RESOLUTION 2009-061
Long at the Request of the
Flood Plain Task Force
07/07/09
A RESOLUTION URGING THE STATE OF ALASKA RECOMMEND THAT SALMON
CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN
THE VICINITY OF SEWARD, ALASKA BE DEEMED NON-NAVIGABLE
WHEREAS, the State of Alaska Department of Natural Resources (DNR) has changed positions
on the issue of navigability on several occasions; and
WHEREAS, the Seward-Bear Creek Flood Service Area (SBCFSA) and the Kenai Peninsula
Borough are working to reduce impacts to flooding in the Seward area; and
WHEREAS, the DNR charges a royalty fee on all gravel materials removed from areas defined as
navigable; and
WHEREAS, this fee makes flood control projects more expensive and cost prohibitive; and
WHEREAS, the Bureau of Land Managernent recommends that all water bodies, with the
exception of Bear Lake, be considered administratively non-navigable in T1N R1E,
T1N R1 W, T2N R1 W, T 1 S Rl W, T 1 S R1 E, Seward Meridian, State_ of Alaska; and
WHEREAS, DNR policy interprets the Daniel Ball test as requiring the water body to be usable
as a highway for the transportation of people or goods as a test of navigability.
NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI
PENINSULA BOROUGH:
SECTION 1. That Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as
defined by and in the Daniel Ball test and best survey practices, and are not subject
to the Submerged Lands Act which, according to State of Alaska policy on
navigability on the website http://dnr.alaska.gov/mlw/nav/nav~olicy.htm, is the
accepted and correct standard for determining navigability.
Kenai Peninsula Borough, Alaska
Resolution ?009-061
Page 1 of 2
64
SECTION 2. The March 20, 2006 Recommendation of Navigability letter from DNR refers to
extreme gradients as conclusive evidence of non-navigability on Spruce Creek.
However, all of the creeks listed as navigable in the 2006 determination contain
reaches of these same "extreme" gradients as expressed in percent slope derived from
LIDAR dataset 2006 and pertinent cross sections.
SECTION 3. That based on the above information and findings established in a previous
determination the assembly respectfully urges the DNR to determine these streams
to be not navigable.
SECTION 4. Copies of this resolution shall be sent to Governor Sarah Palin, Commissioner Tom
Irwin, Senate President Gary Stevens, Senator Thomas Wagoner, House Speaker
Mike Chenault, Representative Kurt Olson, and Representative Paul Seaton.
SECTION 5. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH
DAY OF JULY, 2009.
Milli Martin, Assembly President
ATTEST:
Johni Blankenship, Borough Clerk
Yes:
No:
Absent:
Resolution 2009-061
Page 2 of 2
Kenai Peninsula Borough, Alaska
i
~~
SECTION 2. The March 20, 2006 Recommendation of Navigability letter from DNR refers to
extreme gradients as conclusive evidence of non-navigability on Spruce Creek.
However, all of the creeks listed as navigable in the 2006 determination contain
reaches of these same "extreme" gradients as expressed in percent slope derived from
LIDAR dataset 2006 and pertinent cross sections.
SECTION 3. That based on the above information and findings established in a previous
determination the assembly respectfully urges the DNR to determine these streams
to be not navigable.
SECTION 4. Copies of this resolution shall be sent to Governor Sarah Palin, Commissioner Tom
Irwin, Senate President Gary Stevens, Senator Thomas Wagoner, House Speaker
Mike Chenault, Representative Kurt Olson, and Representative Paul Seaton.
SECTION 5. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH
DAY OF JULY, 2009.
Milli Martin, Assembly President
ATTEST:
Johni Blankenship, Borough Clerk
Yes:
No:
Absent:
Resolution 2009-061
Page 2 of 2
~C
Kenai Peninsula Borough, Alaska
Sponsored btu : Administration
CITY' OF SEV4•`ARD, ALASKA
!'CANNING AND 7,ONING COA9iVIISSIUN
"'~ RESOLUTION 21149-12
A RESOLUTION SUPPORTING A CO[1NC:IL RECOMMENDATION
THAT THE STATE OF ALASKA REVOKE !TS MARCII 24, 21N16
NAVIGABILITY DE"I'ERM[NATIUNAS TU SALMON CREEK, FOURTH
OF JULY CREl~,K ANll SAWMILL C12EEK, ALL LUCATEll IN THE
t'IC1N[TY OF SEWAI2D, ALASKA
WHERII:AS, The State of Alaska l)epartrncnt of Natural Resources has changed
positions nn the issue of navigability on several occasions; and
WHF,REAS, The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula
Borough turd the City of Seward ar•e working to lessen impacts to flooding in the Seward area;
and
VVIIEREAS, The State of Alaska Department of~ Natural kesources (DNIZ) charges a
royalty 1'cc on all gravel materials removed tram these areas; and
WHEREAS, 'this royalty tee makes hood control projects nu.~re expensive and cost
prohibitive; and
W'fIEREAS, 'I'hc Bureau of Land Management recommends that all water bodies. with
the exception of Bear Lake, be considered administratively non-navigable in •1'.l N K. 1 [=, "C 1N
R. I W, T.2N R.1 W, T.I SR. l W, "T. ]S It.l I~:; and
WHERI~:AS, Alaska DNR policy interprets the Daniel Ball test as rcyuiring the water
body to be usable tts a highway for the transportation of people or goods; ttnd
WHEREAS, the Kenai Peninsula Borough Flood Plain "l ask Force voted unanimously
on April I, 2009 in support of the State of Alaska revoking the navigability determination on
Salmon Creek, i~ourth of•July Creek and Sawmill Crcck.
NOW THEREFORE, BE IT RESU[:VED BY THE PLANNING AN1) ZONING
C'UMNIlSSIUN that:
Section 1. Council support the State ol~Alttska's revoking its March 20. 2006 navigability
determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the
~ icinity of Seward, :'\laska.
Section 2. That Salmon Creek, Fourth of .lul,y Creek and Sawmill Creek arc not
navigable, as defined by and in to the Daniel Ball test, best survey practices, and arc not subject
to the submerged land act, which, accordin6 to State of Alaska policy un Navigability, on t6~
website http:;idnr.alaska.gov/mlw~'navr'nav policy.htttt, is the accepted attd cprr•ect standard for
..._ determining navigability.
Section 3. The March 20.2(.)06 Determination of Navigability rclcrs to extreme
•~~
Planning and Zoning C'ommiss~on
Resolution 2U(.)~~-l Z
rage ? of 2
gradients as conclusive evidence of non-navigability on Spruce Creek. Ho~~ever, all of the creeks
listed as navigable in the 20(}Fi determination contain reaches ~~(~thcse same "Lxtrerne' gradients
as expressed in percent s{ope derived t'rom L{ U.~1R d~itaset 20Ub and pertinent crass sections.
Section ~. 'T11is resolution Shall t:~ke etiect immediately upon its adoption.
PASSED AND ApPRUVED by the I'lannin~ and Zoning Commission this 19`'' da}'
of May, 2Q09.
Tf Ili; CITY 4T SI:WARD, ALASKA
.~
r
Sandie Nnach' Chair
AYF',S: Ecklund. I leinrich, McClure. Morgan, Roach', Stautl~er
NOF,S: None
ABSLN"I': ~ i~c
Aliti~ii\lN: None
VAC'AN ~I': Une
ATTEST:
~_~ ,,.._,, 's~,......~,~~rr
.Jean Lctivis ~•~~ -• .~ ~- ,.
City Clerk, C;MC ;~± _,. . ~ ~''; (.City Seal)
'''••qrE OF f-~p+•'~
Sponsored by : Adtniizistration
CITY OF SEWARD, ALASKA
POKT AND COMMERCE ADVISORY BOARD
RESOLUTION 2009-OS
A RESOLUTION SUPPORTING A COUNCIL 12ECOMMENDATION
THAT THF, STATE OF ALASKA REVOKE ITS MARCH 20, 20D6
NAVIGABILITY DETERMINATION AS TO SALMON CREEK, FOURTH
OF JULY CREEK AND SAWMILL CREI/K, ALL LOCATED IN TFIE
VICINITY OF SEWARD, ALASKA
WHEREAS, the State of Alaska Department of Natural Resources has changed
positions on the issue of navigability on several occasions; and
WHEREAS, the Seward Bear Creek Flood service area, the Kenai Peninsula Borough
and the City of Seward are working to lessen impacts to flooding in the Seward area; and
WHEREAS, the State of Alaska Department of Natural Resources (DNR) charges a
royalty fee on all gravel materials removed from these areas; and
WHEREAS, this royalty fee makes flood control projects more expensive and cost
prohibitive; and
WHEREAS, the Btveau of Land Management recommends that all water bodies, with
the exception of Bear Lake, be considered administratively non-navigable in T.1N R. 1 E, T. 1N
R 7 W T_2N R.1 W, "1'.1 SR. 1 W, T. 1 S R.1.E; and
WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water
body to be usable as a highway for the transportation of people or goods; and
WHEREAS, the Kenai Peninsula Borough Flood Plain Task Farce voted unanimously
on April 1, 2009 in support of the State of Alaska revoking the navigability determination on
Salmon Creek, Fourth of July Greek and Sawn>ill Creek.
1!'OW THEREFORE, BE IT RESOLVED BY THE PORT tL'~1D COMMERCE
ADVISORY BOARD:
Section 1. Recommends Council support the State of Alaska's revoking its March 20,
2006 navigability determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek,
all located in the vici~uty of Seward, Alaska.
Section 2. That Salmon Creek, Fourth of July Creek and Sawmill Creek aze not
navigable, as defined by and in to the Daniel Ball test, best survey practices, and are not subject
to the submerged land act, which, according to State of Alaska policy on Navigability, on the
website http;//dnr.alaska.gov/mlw/nav/nav_policy.htm, is the accepted and correct standard for
determining navigability.
Section 3. The March 20, 2006 Determination of Navigability refers to extreme
gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks
~}.
C'i!y of Sex:m•d, Alctskn Pori cmcl Co+nnrercre ~i~lrisorry $onrd eblinulca•
cbiur h ~UU9 tiolumc 3, Pnge 58
New Business- none
Resolution 2009-04, Recommending Council Approval of PACAB Priorities from Api-i12009 to
Apri12t110
Motion (SchaefermeyerlTougas)
Approve Resolution 2009-04
Oliver would Gke to see the AARV higher on the priorities list. Including that the
Chancellor ofthe University will be visititg Seward the 23'x' and 24`'+ of July to see SMIC
and SeaLife center.
A discussion nn the wording of the priorities list #6 and the infrastructure to support the
vessel. The job ~f the board is to describe how to avoid problems and present the best
case scenano.
Amendment to Resolution 2009-04 section 1. Priorities # 6 to read:
AARY'-Iderrtify,~necific tii.avs ro secure hame porting if2 Se~i~ctrd.
3lotion (Butts!()liver}
Motion Passed
Approve Resolution 2009-04
Unanimous Consent yes
Resolution 2009-05, Supporting a Council Recommendation that the State of Alaska revoke
it's March 2(I, 2006 Navigability Determination as to Salmon Creek, Fourth of July C;rcek and
Sa~t~mill Creek, All Located in the Vicinity of Seward, Alaska
Commwiity Development Director Ten~y spoke of the importance of the revocation of the creeks
mentioned due to the current gravel surcharge. The Flood Plane Task Force as well as the Mood
Board have both v~t~l in favor of this resolutic>n as well as 2009-Oh. PACAB's resolution is framed
in such away that it will go to City Council with PACAB's recommendation and then on to the State.
Long included that the Flood Plane Task Force is also and advisory body to the Kenai IIorough
Assembly. The idea was to bet as many bodies as possible signed onto adopting this resolution to get
the widest base o f support at the State level.
!n response to Butts, Chair Long discussed that there arc no real draw hacks to this Resolution.
itilotion (Tongas/Schacfcrmeyer)
Approve Resolution 2009-05
itlotion Passed Unanimous yes
~~ ~~
KENAI PENINSULA BOROUGIi FLOOD PLAllY TASI'; FORCE
RESOLUTION 2009-OY
A RESOLUTION RECOMMENDING THE THAT THE STATE OF ALASKA REVOKE
ITS MARCH 20, 2006 NAVIGABILITY DETERMINATION AS TO SALMON CREEK,
FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE
VICllVITY OF SEWARD, ALASKA
WHEREAS, The State of Alaska Department of Natural Resources has changed positions on the
issue of navigability on several occasions; and
WHEREAS, The Seward Bear Creek flood service area and the Kenai Peninsula Borough arc
working to lessen impacts to flooding in the Seward area; and
WHEREAS, The State of Alaska Department of Natural Resources (DNR) charges a [LBVV)
royalty fee on all gravel materials removed from these areas; and
WHEREAS, This [LEVY] royalty fee makes flood control projects more expensive and cost
prohibitive; and
WHEREAS, The Bureau of Land Management recommends that all water bodies, with the
exception of Bear Lake, be considered administratively non-navigable in T.1N R.
lE, T. ]N R. 1 W, T.2N R.1 W, T.1 SR. 1 W, T. 1S R.IE.
WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to be
usable as a highway for the transportation of people or goods.
NOW THEREFORE, BE IT RESOLVED BY THE KENAI PENINSULA BOROUGH
FLOOD PLAIN TASK FORCE:
SECTION ]. That Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as
defined by and in to the Daniel Ball test [ANDJI best survey practices, and are not
subject to the submerged land act, which, according to State of Alaska policy on
Navigability, on the website http://dnr.alaska.goy/mlw/nay/nav~olicy.htm, is the
accepted and correct standard for determining navigability.
SECTION 2. The March 20, 2006 Determination of Navigability refers to extreme gradients as
conclusive evidence ofnon-navigability on Spruce Creek. However, all of the creeks
listed as navigable in the 2006 determination contain reaches of these same
"extreme" gradients as expressed in percent slope derived from L1DAR dataset 2006
and pertinent cross sections.
SECTION 3 The Kenai Peninsula Boro~,h Task force requests that other concerned local boards
and commissions pass similar declarations in support of this resolution
ADOPTED BY THE KENAI PENINSULA BOROUGH FLOOD PLAIN TASK FORCE ON
THIS 2ST DAY OF APRIL 2009.
- 7 f .~.
KEN'A! PEl11lIVSULA BOROUGH
~~ 144 North Bintdey Street • Soldotna, Alaska 99669-7520
I ~~ \ Toti-free within the Borough: 1-SDd-478-4441
-Jr~tr PHONE: (907) 262-4441 • FAX: (907}262.1892
www.boraugh.kenai.ak.us
DAVE CAREY
~`~•.
°'"~• -«~` ~ BOROUGH MAYOR
Apri17, 2009
Mr. Scott Ogan
Natural Resource Manager II
Department of Naturat Resources
Division of Mining, Land & Water
Public Access Assertion & Defense Unit
550 W. 7`a Ave., Suite 1330
Anchorage, AK 99501-3 ~ 14
Re: State of Alaska Navigability Determination of March 20, 2006
Dear Mr. Ogan:
Based on the following facts, the Kenai Peninsula Borough administration respectfully requests
that the state revoke its Macch 20, 2006 Navigability Determination as to Salmon Creek, Fourth
of July Creek and Sawmill Creek, all located in the vicinity of Seward, Alaska. The Borough
does not dispute the determination that Resurrection River is navigable at this time. If there is an
applicable appeal process governing this request, please advise us as to that process. The
detemnnation notice contained no such information.
In 1999 Japp Creek was the only stream of those Isted in the 2006 determination that was
determined navigable. Kathy Atkinson, Division of Lands, subsequently revoked that
determination, with the result that in 1999 the state determined a[1 of the creeks listed in the 2006
letter were non-navigable. (Letter to Seward City Council I999).
The letter of March 20, 2006, overturning portions of the 1999 determination, provides only
cursory and anecdotal information supporting the conclusion that the above creeks should now
be classified as navigable. It does not provide enough information for the borough to determine
to what extent the state considered the relevant factors when it reversed its long-standing
determination that these e-reeks are not navigable.
BLM recommends that all water bodies, with the exception of Bear Lake, be considered
administxatively non navigable in T.1N R. lE, T. 1N R. 1 W, T.2N Rl W, T.l SR. 1 W, T. 1 S
RIE. This was determined in accordance to the Daniel Ball test and best survey practices
which, according to State of Alaska policy on Navigability, on the website
http://dnr.alaska.gov/rnlw/nav/nav~olicv.htm. is the accepted and correct standard for
determining navigability.
33
The above-mentioned website also indicates on page 3, paragraphs 6 and 7, that Alaska policy
interprets the Daniel Ball test as requiring the water body to be usable as a highway for the
transportation of people or goods. Additional elaboration is found on page 4, paragraph 7, which
provides that waters that are only navigable at infrequent anal unpredictable periods of high water
are not normally considered navigable". Nona of these streams are capable of fulfilling this
requirement except at infrequent and unpredictable periods. Further, if the interpretation
according to State of Alaska policy includes recreational uses such as fishing, trapping, shooting
or transportation of personal goods, there is no evidence that the streams in question have ever
been capable of supporting such activities, anadromous or not. Albert Schaffer, Afogaak
Logging Co., in 1955 logged substantial portions of Fourth of July Creek and was unable to
"float logs" down this stream. (Verbal Communications 2009.) This lack of ability to float lags is
in concurrence of Alaska policy and interpretations of policy for anon-navigable determination.
The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive
evidence of non-navigability on Spruce Creek. However, all of the creeks listed as navigable in
the 2006 determination contain reaches of these same "extreme" gradients as expressed in
percent slope derived from LIDAR dataset 2006 and pertinent cross sections.
Moreover, on page 7 of the Navigability Policy, the first full paragraph indicates that when
information is lacking, the state is forced to rely on the physical characteristics shown on maps
and aerial photographs. In those cases, the state identifies as navigable all streams depicted on
the USGS maps with double lines (generally at least 70 feet wide) and having an average
gradient over the length of the stream of no more than 50 feet per mile. As the state reversed its
prior ruling without the benefrt of an on-site inspection, it seems appropriate to use these
guidelines.
Following is more information concerning the issue of navigability of the streams at issue:
Salmon Creek: In the 2006 determination, Salmon Creek headwaters are said to be derived fiom
Beaz Lake Glacier melt (page 4 paragraph 2), which is not wrrect. Beaz Creek/Sahxton Creek
confluence, also stated in the determination document, clearly supports this. In fact, Glacier
Creek (Kwechak), not Salmon Creek, flows from Bear Lake Glacier. Instead, Salmon Creek
flows from Lost Creek and runs approximately 5.6 miles to its confluence with Resurrection
River. Further, the determination notes that the creek is shown to have significant width along
most of its channel, in some places more than 400 feet. This width is attributable to the
meandering nature of this creek; only during floods would it possibly reach such a large width.
As indicated by 1VIr. Bardarson, Salmon Creek is often very shallow. Although he states it is
floatable inmost areas, there is nothuig provided to indicate what could float on it inmost areas.
Fourth of JuI Creek: The determination letter indicates that this creek runs approximately 1.14
miles into the Resurrection Bay, and that the lower reaches of this creek are anadromous anal
tidally influenced. 43 USC § 1301(a}(2) defines lands beneath navigable waters as
(2) alI lands permanently or periodically covered by tidal waters up to but not above the
line of mean high tide and seaward to a line three geographical miles distant from the
Page 2 of 3
'~ 3
coast line of each such State and to the boundary line of each such State where in any
case such boundary as it existed at the time such State became a member of the Union, or
as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico)
beyond three geographical miles .. .
However, this creek has not significantly changed since the 1980 determination. Please provide
information supporting the conclusion that the creek is now tidally influenced and therefore
subject to the Submerged Lands Act. Further, the Fourth of July Creek gradient exceeds the 50
feet in one mile standard.
Sawmill Creek: Please provide information supporting the conclusion that the creek is now
tidally influenced and therefore subject to the Submerged Lands Act and how this Creek has
changed from the 1980 determination. Also, Sawmill Creek gradient exceeds the SO feet in one
mile standard.
The determination document dated March 20, 2006, refers to NHD datasets at pages 2 and 4.
Please advise us what kind of data the referenced USGS dataset was used .in the previous
mentioned deternnation.
DVe would appreciate your reversing the determination of navigability dated March 20, 2006, or
providing us with additional information supporting the conclusions as to these three creeks.
Thank you for your consideration.
Sincerely,
~ ~ ~
David R. Carey
Borough Mayor
Page 3 of 3
'7 4
Alaska Department of Natural Resources
State Policy on Navigability
Table of'Contents:
• I. Identifyin~ and Protecting State Title to the Beds of Navi ability
• Riparian Rights and Statute of Limitations
• Navigability Criteria
• Navi ability Criteria Disputes
• Identification of Navigable Waters
• Navigable Waters within Pre-Statehood Federal Withdrawals
• Navigable Waters within ANILCA Conservation System Units
• II. Leal and Policy Guidelines Governing Management of
Submerged Lands and Pt.iblic Waters
• Public Trust Doctrine
• Public Waters
• Boundaries of Navigable Waters
• Conclusion
Policies and Procedures on Ownership And
Management of Navigable and Public Waters
June 18,1996 State ownership of the beds of navigable waters is an inherent attribute of state sovereignty protected by the
United States Constitution. Utah v. United States, 482 U.S. 193 (1987). Under the doctrine, all states enter the Union on an
equal footing with respect to sovereign rights and powers, title to the beds of navigable waters in Alaska vested in the newsy
formed State of Alaska in 1959. In addition, under the Alaska Constitution and the public trust doctrine, all waters in the
state are held and managed by the state in trust for the use of the people, regardless of navigability and ownership of the
submerged lands under the Equal Footing Doctrine.
The purpose of this paper is to describe the State of Alaska's policies and procedures for identifying and protecting the state's
title to the beds of navigable waters. In addition, this paper outlines the legal and policy considerations, which guide the
ownership and management of submerged lands and public waters.
I. IDENTIFYING AND PROTECTING STATE TITLE TO THE I3EDS OF NAVIGABLE WATERS
Identification and management of the beds of navigable waters is an important policy of the State of Alaska. In 1980, the
state established a comprehensive navigability program to respond to federal land conveyances and land management
State Policy on Navigability -1- 07/04/99
~~
activities under the Alaska Statehood act, the Alaska Native Claims Settlement Act (ANCSA), and the Alaska National
Interest Lands Conservation Act (ANILCA). Pursuant to the provisions of those acts, the federal government has issued
navigability determinations for thousands of lakes, rivers, and streams throughout the state in an effort to determine whether
the state or federal government owns the submerged lands. Navigability determinations are also made prior to many state
land disposals to insure that adequate public use easements are reserved.
The basic purpose of the state's program is to protect the public rights associated with navigable waters, including, in
particular, the state's title to the submerged lands. Because state and native land selections and federal conservation units
blanket the state, navigability questions have arisen for rivers, lakes, and streams throughout Alaska. The navigability of
many of those water bodies has already been established. There are hundreds of others, however, where navigability is not
yet determined.
To help resolve these navigability disputes, a major goal of the state's navigability program is to identify the proper criteria
for determining title navigability in Alaska and to gather sufficient information about the uses and physical characteristics of
individual water bodies so that accurate navigability determinations can be made as disputes arise. Other important aspects
of the program include monitoring federal land conveyance and management programs to identify particular navigability
disputes, seeking cooperative resolution of navigability problems through negotiations and legislation, and preparing for
statewide navigability Eitigation.
ItIPAR[AN RIGIiTS AND STATUTE OF LIMITATIONS
Disputes over ownership of submerged lands in Alaska have arisen under a variety of circumstances. The principal source of
the disputes in Alaska is the survey and acreage accounting system used by the federal government for conveying land to the
state and native corporations.
The standard procedures for surveying and conveying federal land are found in the Manual of Instructions for the Survey of
the Public Lands of the United States, generally known as the BLM Manual of Surveying Instructions- Under those
procedures, consistently used in every public land state except Alaska, only uplands are surveyed and conveyed in fulfillment
of acreage entitlements, not submerged lands. The survey rules require that all lakes 50 acres or larger, and rivers and
streams three chains (198 feet) in width or wider, regardless of navigability, be meandered and segregated (excluded) from
the surveyed public lands. Only the surveyed uplands are conveyed. The acreage of meandered rivers, lakes, and streams is
not included in computing the amount of land involved in the conveyance.
In Alaska, however, the federal government had not consistently followed these survey rules. Until 1983, the federal
government treated submerged lands the same as uplands. All bodies of water that were considered non-navigable by the
federal government, regardless of size, were surveyed as though they were uplands and the acreage of submerged lands was
charged against the total acreage entitlement.
Because of these conveyance procedures, the navigability of water bodies in Alaska has been an issue of contention since the
enactment of the Alaska Statehood Act and ANCSA. In addition to the problems caused by a lack of information about many
water bodies, the situation was exacerbated by the narrow definition ot'navigability used by the federal government.
Hundreds of rivers, lakes, and streams considered navigable by the state were determined non-navigable by the federal
government.
In 1983, following years of negotiations, lawsuits and legislative attempts to solve the navigability problems created by the
unusual survey and conveyance procedures in Alaska, the State of Alaska, the United States Department of the Interior and
the Alaska Federation of Natives (AFN) agreed that the standard rules of survey should be followed for land conveyances in
Alaska. The effect of that decision was to treat Alaska surveys and land conveyances like federal land surveys and
conveyances In other states. The recipients of conveyances from the federal government are charged only for the amount of
public land that is cala~lated by the survey, which does not include the areas of meandered rivers, lakes and streams.
The use of these survey procedures has eliminated many of the problems associated with the federal land conveyance
programs in Alaska. Submerged lands are no longer being conveyed to fulfill acreage entitlements. With the exception of
lakes smaller than 50 acres and s#reams narrower than 198 feet, navigability determinations are no longer being made prior to
federal land conveyances. Determinations of ownership of submerged lands can be put off until a natural resource use or
conflict requires resolution, such as issuance of an oil and gas lease, mining claim, or a gravel sale.
Through the joint efforts of the State of Alaska, AFN, and the Department of the Interior, the 1983 decision to use the
standard survey procedures for land conveyances in Alaska was legislatively approved in August 1988 when the United
States Congress passed legislation (94 Stat. ?430) amending Section 901 of the Alaska National Interest Lands Conservation
Act, codified at 43 U.S.C. 1631. The 1988 amendment, sometimes referred to as the Alaska Submerged Lands Act, requires
State Policy on Navigability -2- 07/04/99
~~
that the standard rules of survey in the BLM Manual of Surveying Instructions be used for ail federal surveys under the
Alaska Statehood Act and ANCSA. The 1988 amendment also repealed the Section 901 statute of limitations that would
have required the state to file a lawsuit within a very short period of time in order to preserve its title to the beds of navigable
waters conveyed to native corporations by the federal government as a result of erroneous navigability determinations, poor
maps, surveys or whatever.
Even with this legislation, a major problem concerning navigability decisions made by the federal government under the old
system remains unresolved. At issue are the hundreds o.f erroneous non-navigability decisions and the resulting submerged
land conveyances made to ANCSA corporations in previous years. In addition, to comply with the meandering requirements
of the BLM Survey Manual, the federal government is still required to make navigability determinations for lakes smaller
than 50 acres and rivers or streams narrower than 198 feet in width to determine if these waters must be meandered.
NAVIGABILITY CRITERIA
The greatest hurdle to overcome in the state's efforts to identify and manage navigable waters has been the long- standing
differences of opinion between the State of Alaska and the United States regarding the application of the test for determining
title navigability. Navigability is a question of fact, not a simple legal formula. Variations in water body use that result from
different physical characteristics and transportation methods and needs must be taken into account. There are many legal
precedents for determining navigability in other states based upon the particular facts presented in those cases. In Alaska,
though, we are just beginning to get the final court decisions that are necessary to provide legal guidance for accurate
navigability determinations.
The physical characteristics and uses of a water body used by the state for asserting navigability, commonly refen•ed to as
navigability "criteria", are based upon legal principles that have been established by the federal courts. These criteria are
applied to rivers, lakes, and streams throughout the state and take into account Alaska's geography, economy, customary
modes of water-based transportation, and the particular physical characteristics of the water body under consideration.
The federal test for determining navigability was established over a hundred years ago..[n the landmark decision of The
Daniel Ball, 77 U.S. (19 Wall.) 557, 563, (1870), the Supreme Court declared:
Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. And they are navigable
in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce,
over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
Although The Daniel Bal] test is accepted as the correct standard for deternining navigability, there has been a lot of
disagreement over application of many of the terms and phrases used in The Daniel Ball test to the specific uses of Alaska's
lakes, rivers and streams. The State of Alaska uses the following interpretation of that test as the basis for its navigability
program.
The Water. body Must Be Usable As a Highway For the Transportation of People or Goods. Interpreting the requirements
that navigable water bodies be used or usable as "highways of commerce", the courts have ruled that the central theme of title
navigability is that the water body be capable of use as a highway which people can use for transporting goods or for travel.
Neither the type of goods being transported nor the purpose of the travel is important in determining navigability.
Transportation on water associated with recognized commercial activities in Alaska, such as mining, timber harvesting, and
trapping is, evidence of navigability. The use of water bodies for transportation in connection with natural resources
exploration or development, government land management, management of fish and game resources, or scientific research is
also evidence of navigability. Travel by local residents or visitors for the purpose of hunting, fishing, and trapping or as a
means of access to an area can be used to establish navigability. The same holds for recreational transportation, including
personal travel and professionally guided trips.
Waters Which Are Capable of Being Used For Transporting Persons and Goods, Although Not Actually Used, Are
Navigable. It is not necessary that a water body be actually used for transportation to be found navigable. It is enough that it
is susceptible, or physically capable, of being used. Whether a water body is susceptible of use for transportation depends
upon.the physical characteristics of the watercourse such as length, width, depth, and, for a river, current and gradient. If
those physical characteristics demonstrate that a water body could be used for the transportation of persons or goods, it is
legally navigable.
The susceptibility element of title navigability is very important for the identification of navigable water bodies in Alaska.
Because of Alaska's sparse population and lack of development, there are I~undreds of remote rivers, lakes, and streams
where there is little or no evidence of actual use. Because of their physical characteristics, however, many of these remote
water bodies could be used for transporting people or goods if there was a need. Under these circumstances, they are
State Policy on Navigability -3- 07/04/99
~~
considered legally navigable.
Transportation Must Be Conducted in the Customary Modes of Trade and Travel On Water. A finding of navigability does
not require use or capability of use by any particular mode of transportation, only that the mode be customary. The courts
have held that customary modes of transportation on water inchide all recognized types and methods of water carriage.
Unusual or freak contrivances adapted for use only on a particular stream are excluded. Customary modes of trade and travel
on water in Alaska include, but are not limited to, barges, scows, tunnel boats, flat-bottom boats, poling boats, river boats,
boats propelled by jet units, inflatable boats, and canoes. In places suitable for harvesting timber, the flotation of logs is
considered a customary mode of transportation.
The mode of travel must also be primarily waterborne. Boats which may be taken for short, overland portages qualify. The
courts have ruled that the use of a lake for takeoffs and landings by floatplanes is insufficient, in and of itself, to establish
navigability.
Without expressly rejecting the claim, at least two court decisions in Alaska have suggested that winter travel on the surface
of a frozen river or lake is probably not evidence of navigability. The rivers involved in the two adjudicated cases were both
found navigable based upon summer use by boats, however, and it appears likely that most water bodies in Alaska that are
used as highways in winter can also be traveled by at least small boats in the summer. Because of this, the state need not rely
upon winter travel to support navigability.
Waters Must Be Navigable In Their Natural and Ordinary Condition. A water body, which can be used for transportation
only because of substantial man-made improvements to the condition of the watercourse, is not navigable for title purposes.
However, if transportation does or could occur on the water body even without the improvements and the improvements
would only make transportation easier or faster or possible for larger boats (e.g., dredging), it is still considered navigable for
title purposes.
The presence of physical obstructions to navigation (rapids, falls, log jams, etc.) does not render a waterway non- navigable
if the obstruction can be navigated despite the difficulties or if the obstruction can be avoided by other means, such as
portaging, lining, or poling. A water body is also navigable even if seasonal fluctuations do not allow it to be navigated at all
times of the year. However, a water body, which is only navigable at infrequent and unpredictable periods of high water, is
not normally considered navigable. The fact that a water body may be frozen for several months of the year does not render
it non-navigable if it is navigable in its unfrozen condition.
Title Navigability Is Determined As Of The Date Of Statehood. To be considered navigable for title purposes, the water
body must have been navigable in 1959 (when Alaska became a state). 'T'his element of the navigability test focuses on the
physical characteristics of the water body and whether those characteristics have changed significantly since statehood. Most
water bodies have not physically changed enough since statehood to alter Lheir navigability. Assuming there have been no
signif cant changes in the physical characteristics of the water body, a water body that is navigable today would be
considered legally navigable in 1959 as well. Exceptions might include the creation, by natural or man-made causes after
statehood, of a totally new lake, river, or canal now used for navigation. Such a water body would not be considered
navigable for title purposes. Conversely, a water body which was navigable in 1959 but, because of nariiral or man-made
physical changes, is no longer navigable in fact would still be considered navigable for title purposes.
NAVIGABILITY CRITERIA DISPUTES
Because of differing legal interpretations of court navigability decisions, several aspects of the criteria used by the state to
determine navigability have been disputed by the federal government. As a direct resu-t of these criteria disputes, many water
bodies considered navigable by the state have been determined non-navigable by the federal government.
The major criteria dispute has been over the type or purpose of the transportation required to establish navigability. The
federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered
navigable. Other, "noncommercial" transportation uses are not considered sufficient to establish navigability. In this context,
the federal government has claimed that the only relevant "commercial" transportation is the distribution of goods for sale or
barter, or the transportation for hire of people or things. The federal govemment has admitted that professionally guided
transportation on Alaska's rivers, lakes aid streams constitutes commerce, but nevertheless has argued that the waters are not
being used as a navigable "highway" when recreation is involved, but rather more as an amusement park. The federal
government has therefore claimed that waters used only for commercial recreation are legally nonnavigable even though they
may be navigable in fact_
Through the work of the state's navigability program, this definition has been repeatedly rejected by the courts, most recently
in the Gulkana River case. Alaska v. United States, 662 F.Supp.4S5 (D.Alaska 1986), affirmed sub nom. Alaska v. Ahtna,
State Policy on Navigability -4-
07/04/99
!p
Inc., 891 F.2d 1401 {9th Cir. ] 489). Applying the correct definition of navigability, many of the submerged lands that the
federal government attempted to convey to ANCAA corporations should have been recognized as belonging to the state. The
state appealed many conveyances to protect its title. As occurred in the Kandik-Nation Rivers appeal, Appeal of Doyon, 86
I.D. 692 (ANCAB 1979), Alaska Native Corporations also found it necessary to challenge erroneous federal determinations
ofnon-navigability to insure they would not be deprived of any portion of their entitlement by being charged for submerged
land owned by the slate.
The federal govemment has also argued that aluminum boats, boats propelled by jet units, inflatable boats, and canoes are not
customary modes of travel for the purpose of determining navigability in Alaska. As a result, many water bodies navigated
by these types of watercraft have been found legally non-navigable by the federal government. The claim is that these boats
represent post-statehood technological advances, are too small to be considered "commercial", or that most "commercial" use
of the watercraft developed after statehood.
Another navigability dispute involves remote, isolated lakes. The federal government has found many of these lakes legally
non-navigable, even though they are physically capable of being navigated. The federal government's contention is that a
navigable connection to another area is necessary to make trave[ on a remote lake worthwhile. Otherwise, the federal
government views the lack of development in the area around the isolated lake as an indication that the lake will never be
used for commercial transportation.
To resolve these navigability criteria disputes, the state has actively pursued a limited number of court cases challenging
particular findings of noa-navigability by the federal govemment. With the sole exception of floatplanes, the courts have
agreed with the navigability criteria presented by the State of Alaska and have rejected the limitations suggested by the
federal govemment. These cases include:
Gulkana River. In this case, both in the U.S. District Court and on appeal to the U.S. Court of Appeals, the federal courts
rejected the federal government's restrictive interpretation of the phrase "highway of commerce" in the title navigability test.
The federal district court stated that to demonstrate navigability, it is only necessary to show that the water body is physically
capable of "the most basic form of commercial use: the transportation of people or goods." Because the Gulkana River can
be used for the transportation of people or goods, the Gulkana River was found navigable. Alaska v. United States, 662
F.Supp.455 (D.Alaska 1987). On appeal, the court of appeals affirmed the district court's finding of navigability. Alaska v.
Ahtna, Inc., 892 F.2d 1401 (9th Cir. 1989). The court of appeals found that the modem use of the Gulkana River for guided
hunting, fishing, and sightseeing trips is a commercial use and, since the physical characteristics of the river have not
significantly changed since 1959, provides conclusive evidence that the river was susceptible of commercial use at statehood.
The court also found that modem inflatable rafts can be used to establish navigability. In April 1990, the United States
Supreme court denied a request by Ahtna, Inc. to reconsider and overturn the court of appeals decision. The Gulkana River
precedent is now binding on al] future navigability determinations in Alaska.
Kandik and Nation Rivers. In this administrative appeal, the State of Alaska and Doyon Limited, an ANCSA regional
corporation, successfully established that the use or susceptibility of use of a river or stream by an 18-24 foot wooden
riverboat capable of carrying at least 1,000 pounds of gear or supplies is sufficient to establish navigability. Based upon the
use of these types of boats for the transportation of goods and supplies by fur trappers, as well as extensive historic and
contemporary canoe use, the court found the Kandik and Nation rivers, in Interior Alaska, navigable. Appeal of Doyon, 86
LD.692 (ANCAB 1979).
Alagnak River. in this federal district court case, the Alagnak River, the Nonvianuk River, Kukaklek .Lake and Nonvianuk
Lake were all found navigable. These interconnected waterbodies are located in the Bristol Bay region of Alaska, south of
Lake I[iamna. Their primary transportation use is for commercially guided hunting, fishing, and sightseeing and for
government research and management. They also serve as a means of access for local residents to their homes and to the
surrounding areas for subsistence hunting and fishing. After several years of litigation, the federal government conceded that
these rivers and lakes are navigable. Alaska v. United States, No. 82-201 (D.Alaska :Feb. 2, 1985).
Matanuska River. The recommended decision in this administrative appeal agreed with the State of Alaska's position that
post-statehood commercial river rafting operations are sufficient to establish navigability. Based upon that type of use, the
administrative law judge who heard the case recommended that the Matanuska River, in Southcentra] Alaska, be found
navigable. The Secretary of Interior, over the state's objections, assumed jurisdiction over the case and stayed
implementation of the recommended decision, No action has been taken in the case since that time. Appeal of Alaska, No.
82-1133 (IBLA Rec. Decision Aug. 18, 1983)
Slopbucket Lake. The state claimed that the extensive use of floatplanes on Slopbucket bake, a twenty acre lake adjacent to
Lake Iliamna, was sufficient to establish navigability. The federal courts rejected this view. The courts reasoned that
floatplanes do not use the lake as a navigable highway; they just take off and land there. Alaska v. United States, 754 F.2d
851 (9th Cir.) cert denied, 106 S. Ct. 333 (1985).
State Policy on Navigability -5- 07/04/99
tf
IDENTIFICATION OF NAVIGABLE WATERS
Even if the criteria for determining navigability in Alaska were totally agreed upon, it still would be difficult to prepare a
complete list of all of the navigable lakes, rivers, and streams in the state. Much of Alaska has not yet been surveyed and
many maps are inaccurate and out-of--date. It is an immense and complex task simply to identify and locate all of the
thousands of named and unnamed lakes, rivers, and streams in the state which might be considered navigable. Furthermore,
once a potentially navigable lake, river, or stream has been identified, detailed information about its size and uses is
necessary far an accurate navigability determination. Because of Alaska's undeveloped and remote character, gathering
navigability information is both time consuming and expensive. Finally, administrative navigability determinations made by
the state or the federal government are always subject to legal challenge, since only the courts can authoritatively determine
title to submerged lands.
Despite these difficulties, both the state and the federal govemment are frequently called upon to issue navigability
determinations. Although the requirement that BLM adhere to the meandering requirements of the BLM Survey Manual has
eliminated the need for navigability determinations on the larger rivers, lakes, and streams, which must now be meandered
regardless of navigability, navigability determinations are still required for the smaller rivers, lakes, and streams to determine
if they are to be meandered at the time of survey. Because of this, some navigability determinations are still made for nearly
every federal land conveyance under ANCSA or the Alaska Statehood Act. The management plan 'for nearly every federal
Conservation System Unit (CSLJ) also addresses the navigability issue.
Federal navigability determinations are reviewed by the state to insure that available information sources were used and
interpreted correctly. Where the federal government deteranines non-navigable a water body which is considered navigable
by the state, the state may provide the government with supplemental information about the uses and characteristics of the
water body to obtain a re-determination of navigability. Under some circumstances the state needs to make its own
navigability determinations, such as for a oil and gas lease sale, land disposal, material sale, mining claim, or another use of
state land or resources requiring a determination of ownership of submerged lands within the affected area.
For large, undeveloped regions of Alaska there may be little or no accurate water body use or physical characteristics
information available for making navigability determinations. When information is lacking, and it must make a navigability
determination, the state is forced to rely solely upon the physical characteristics shown on maps and aerial photographs. In
these cases, the state identifies as navigable all streams depicted on the U.S.G.S. maps with double lines (generally at least 70
feet wide) and having an average gradient over the length of the stream of no more than 50 feet per mile. With rare
exceptions, the state's experience has been that streams of this type are deep enough and wide enough to be navigable by
boats carrying persons or goods and must, therefore, be considered legally navigable. Streams depicted with single lines,
although nan•ower in width, may also be listed as potentially navigable if they have gradients of substantially less than 50 feet
per mile and are at least 10 miles.
If there is no public use or physical characteristics information readily available for lakes, those takes which are shown on
maps and aerial photographs as having a navigable water connection with other navigable waters, or which are accessible by
short overland portages, are considered navigable regardless of the size of the lake. These lakes are part of a system of
interconnected navigable waters. If a lake is totally isolated, it will be included on the state's navigability maps if it is at least
1 I/2 miles long. That length insures that the lake can be used as a "highway". Future judicial decisions interpreting the
"highway" requirement for isolated lakes could shorten or lengthen this 1 1/2 mile "rule of thumb."
The state recognizes that, under some circumstances, lakes smaller than 1 1/2 miles long can be and are used as navigable
highways. In those cases, when known, these smaller lakes are also depicted on the slate's navigability map. Moreover, as a
matter of administrative policy and convenience only, the state may sometimes make an exception to the 1 1/2 mile standard
in the extremely wet regions of the state, including some areas in the Yukon- Kuskokwim Delta, Yukon Flats, and on the
North Slope. In these areas, an isolated lake might need to be 2-3 miles long to be included on the state's navigability maps.
Although smaller lakes in these areas are capable of being used for transportation and should be found navigable by the
courts, the state has decided to concentrate its limited resources in protecting the larger water bodies first.
NAVIGABLE WATERS WITHIN PRE-STATEHOOD FEDERAL WITHDRAWALS
Although disputes over which waters in Alaska are navigable are the most frequent cause of submerged land ownership
disputes, there is another major legal issue which poses a threat to Alaska's sovereign claim to the beds of navigable waters.
Even where navigability is conceded, the federal government often contends that title to the submerged lands did not vest in
the state if the area was withdrawn or reserved by the federal government on the date of statehood. Within native conveyance
areas, the federal government has used this claim of "reserved submerged lands" to justify its attempts to convey the beds of
navigable waters in fulfillment of the native entitlements. Within state selections, the federal govemment has used the same
State Policy on Navigability -6- ~® 07/04/99
claim to charge the acreage of submerged lands against the state's entitlement
The state strongly disagrees with this federal claim and has actively pursued a number of court challenges to resolve the
issue. In addition to numerous appeals from federal decisions to convey or charge for the beds of navigable waters, the state
was actively involved as a friend of the court in one case before the United States Supreme Court and continues to be
involved in another Supreme Court case which presents this issue. The pending case is United States v. Alaska, U.S.
Supreme Court 84 Original (fled June, 1979).
On June 8, 1987 the Court issued its decision in Utah v. United States, No. 85-1772 (filed Oct. 14, 1986). In this case the
federal government, in 1976, issued oil and gas leases for (and underlying Utah Lake, a navigable water body located in Utah.
The suit sought a declaratory judgement that Utah, rather than the United States, holds the lands under navigable waters in
the territories in trust for future states, and, absent a prior conveyance by the federal government to third parties, a state
acquires title to such land upon entering the Union on an "equal footing" with the original 13 states.
The Supreme Court held that title did pass to the state upon Utah's admission to the Union. They held that there is a strong
presumption against .finding congressional intent to defeat a state's title, and, that in fight of the }ongstanding policy of the
federal government's holding land under navigable waters for the ultimate benefit of fiiture state absent exceptional
circumstances, an intent to defeat a state's equal footing entitlement could not be inferred from the mere act of the reservation
itself. The United States would not merely be required to establish that Congress clearly intended to include land under
navigable waters within the federal reservation, but would additionally have to establish that Congress affirmatively intended
to defeat the future state's title to such land.
This decision has significant ramifications within Alaska, since over 95 million acres -more than 25
of the total area of the state -was enclosed within various federal withdrawals and reservations at the time Alaska became a
state.
NAVIGABLE WATERS WLTHIN ANILCA CONSERVATION SYSTEM UNITS
On December 2, 1980, the Alaska National l.nterest Lands Conservation Act became law. This act created or added 104.3
million acres to various federal conservation system units. Because these "withdrawals" occurred after the date of statehood,
there is no disagreement between the state and federal governments that navigable waters within the various CSU's are owned
by the state. However, there is some disagreement on the amount of authority the federal land managers may have to regulate
these state owned submerged lands.
The U.S. Constitution gives Congress certain Limited powers to control uses on state owned submerged land. These are
known as the Property Clause, Navigational Servitude and the Commerce Clause. The extent of these powers involves
complex legal questions. However, even assuming that Congress has the power to regulate state-owned submerged lands in
Alaska, the United States Supreme Court has ruled that Congress may choose not to exercise that power, thus leaving
regulation totally up to the state. Escanaba Co. v. Chicago, 107 U.S. (17 Otto.) 678 (1883}. V/hether Congress has done that
can only be determined by examining the federal laws passed by Congress dealing with Alaska lands. Another possibility is
that the state and federal governments have concurrent jurisdiction, sharing the authority to regulate submerged lands.
In ANILCA, Congress did not take away the state's power to regulate state-owned submerged lands within federal CSU's in
Alaska. Numerous provisions in ANILCA recognize and respect the state's authority over state-owned land- In some cases,
however, Congress may have attempted to give the federal land managers some concurrent authority to regulate navigable
waters within CSU's.
The state, where possible, cooperates with rather than confronts the federal land managers. This cooperation often takes the
form of a memorandum ofunderstanding that discusses management issues and how they will be resolved. Differences do
occur, however, over issues such as column management and restrictions on mining.
II. LEGAL AND POLICY GUIDELINES GOVERNING MANAGEMENT OF SUBMERGED LANDS AND
PUBLIC WATERS
PUBLIC TRUST DOCTRINE
The state has special duties and management constraints with respect to state-owned land underlying navigable waters.
These special duties and management constraints arise from the Alaska Constitution. The Alaska Constitution contains
State Policy on Navigability -7- 07/04/99
~1
numerous provisions embracing the principles commonly known as the public trust doctrine. The public trust doctrine is
remarkable both for its age and for its vigor. Rooted in the customs of the seafaring Greeks and Romans, it has evolved to
become one of the most effective safeguards of public rights. Basically, the trust reflects an understanding of the ancient
concept that navigable waters, their beds and their banks, should be enjoyed by a!1 the people because they are too important
to be reserved for private use.
In America, the concept of public rights to public waters was recognized since the early days of the Massachusetts Bay
Colony where the great Pond Ordinance of 1641 guaranteed the right to fish and fowl in ponds greater than 10 acres, along
with the freedom to pass through private property to do so.
By 1821, American courts were pronouncing the law of public trust as we know it today. This does not mean that no water-
related development can take place. The public trust doctrine permits states to improve waterways by constructing ports,
docks and wharves, thus furthering the purposes of the trust. Generally speaking, the people's trust rights may be alienated
only in ways that further overall trust uses, and in relatively small parcels.
Illinois Central Railroad Company v. Illinois, 146 U.S. 387,452 (1982}, involved a grant by the State of Illinois of one
thousand acres of the bed of Lake Michigan, constituting the entire harbor of the City of Chicago, to the Illinois Central
Railroad. 1'he U.S. Supreme Court held that the grant was revocable, that the state held the land intrust for the public, and
that it was powerless to relinquish its rights as trustee.
The court went on to say that land underlying navigable waters is much more than a simple property right.
[I]t is a title different in character from that which the state holds in lands intended for sale. It is different from the
title which the United States holds in the public lands which are open to preemption and sale. It is a title held in
trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and
have liberty of fishing therein freed from the obstruction or interference of private parties... The trust devolving
upon the state for the public, and which can only be discharged by the management and control of property in which
the public has an interest, cannot be relinquished by a transfer of the property.
In the 19th century the purposes of the trust were generally described as "commerce, navigation and .fishery." 'This was
logical because the major waterways were essential highways of commerce. But as other values became increasingly
important, courts began to recognize recreation and environmental protection among the purposes for which the trust exists.
As a California court said in 1971, "with our ever increasing leisure time...and the ever increasing need for recreational areas
it is extremely important that the public need not be denied use of recreational water...the rule is that a navigable stream may
be used by the public for boating, swimming, fishing, hunting and all recreational purposes." People ex rel. Baker v. Mack,
19 Cal. App. 3d 1040, 1044 (1971).
The Alaska constitution provides protections similar to the public trust doctrine protections that cannot be disregarded by the
legislature or overruled by the courts. Article VIII, Sec. 3 provides; "Wherever occurring in their natural state, fish, wildlife
and waters are reserved to the people for common use." After reviewing the public trust doctrine in Owsichek v. State, Guide
Licensing, 763 P.2d 488 (Alaska 1988), the Alaska Supreme Court explained that "the common use clause was intended to
engraft in our constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state."
In CWC Fisheries, .[nc. v. Bunker, 755 P2.d I 1 I S (Alaska 1988), the Alaska Supreme Court applied the public trust doctrine
to tidelands, holding that, even after conveyance, the title remains subject to continuing public easements for purposes of
navigation, commerce and fishery.
The 1985 Alaska legislature recognized the constitution application of public trust doctrine principles in Alaska. In an Act
relating to the public or navigable waters of the state, the legislature found that "the people of the state have a constitutional
right to free access to the navigable or public waters ofthe state" and that the state "holds and controls all navigable or public
waters intrust for the use of the people of the state". 85 SLA Ch. 82. In the same act, the legislature ruled that submerged
lands are "subject to the rights of the people of the state to use and have access to the water for recreational purposes or any
other public purpose for which the water is used or capable of being used consistent with the public trust."
Courts in other states over the years have defined in somewhat different ways the public uses that are permitted and protected
by the public trust as it applies to submerged lands. In reviewing these other cases, it can clearly be seen that through time an
ever-expanding definition of the public uses protected by the public trust doctrine is being adopted. The California Supreme
Court recently held that:
Although early cases had expressed the scope of the public's right in (lands subject to the public trust) as
encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the
right to hunt, bathe or swim, and the right to preserve the (public trust) lands in their natural state as ecological units
for scientific study. City of Berkeley v. Superior Court of Alameda, 606 P.2d 362, 365 (Cal. 1980)
State Policy on Navigability -8- 07/04/99
~~
It is clear under the Alaska Constitution that the State of Alaska has the responsibilities of a trustee with respect to
management of land underlying navigable waters. Moreover, the Alaska legislature has adopted a broad view of the public
uses protected or permitted by the public trust. Accordingly, the Alaska Attorney General's Office has determined that, until
the Alaska Supreme Court rules on the question, the state should assume that a broad definition of public rights protected by
the Alaska Constitution and the public trust doctrine applies in Alaska, similar to the one adopted by the California Supreme
Court. ] 982 Atty. Gen. Op. No. 3 (June 10, 1982).
:PUBLIC WATERS
It is not only the beds of navigable waters in Alaska that are reserved in public ownership for public use. Under article VIII,
Section 3 of the Alaska Constitution, all waters occurring in their natural state are reserved to the people for common use.
Article VIII, Section 14 of the Alaska Constitution also provides for the broadest possible access to and use of state waters by
the general public.
Section 14. Access to Navigable Waters. Free access to the navigable or public waters of the state, as defined by
the legislature, shall not be denied any citizen of the United States or resident of the state, except that the legislature
may by general law regulate and limit such access for other beneficial uses or public purposes.
Pursuant to this grant of authority, the Alaska State Legislature, in AS 38.05.365(12), defined "navigable waters" as follows:
"navigable waters" means any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound,
estuary, inlet, strait, passage, canal sea or ocean, or any other body of water or waterway within the ten•itorial limits
of the state or subject to its jurisdiction, that is navigable in fact for any useful public purpose, including but not
limited to water suitable for commercial navigation, floating of logs, landing and takeoff of aircraft, and public
boating, trapping, hunting waterfowl and aquatic animals, fishing, or other public recreational purposes.
This definition of navigable waters does not define state ownership of submerged land in Alaska. The definition of
navigability for ownership purposes was discussed earlier in this paper. This definition, however, does define what types of
water bodies in Alaska are available for public use under the Alaska statutes.
The Alaska State Legislature has broadly construed the constitutional protections for public use of the waters of the state. In
an Act (8S SLA chap. 82, codified as AS 38.05.128) relating to the navigable or public waters of the state, the state
legislature found:
(a)The people of the state have a constitutional right to free access to the navigable or public waters of the state.
(b) Subject to the federal navigational servitude, the state has full power and control of alf of the navigable or public
waters of the state, both meandered and un-meandered, and it holds and controls all navigable or public waters in
trust for the use of the people of the state.
(c) Ownership of land bordering navigable or public waters does not grant an exclusive right to the use of the water
and any rights of title to the land below the ordinary high water mark or subject to the rights of the people of the
state to use and have access to the water for recreational purposes or any other public purposes for which the water
is used or capable of being used consistent with the public trust.
(d) This Act may not be construed to affect or abridge valid existing rights or create any right or privilege of the
public to cross or enter private land.
AS 38.05.128 provides:
OBSTRUCTIONS TO NAVIGABLE WA'CER
(a) A person may not obstruct or interfere with the free passage by a member of the public on any navigable water as
defined in AS 38.05.965 unless the obstruction or interference is:
(1) authorized by a federal or state agency;
(2) authorized under a federal or state law or permit;
(3) exempt under 33 U.S.C. 1344(f) (Clean Water Act);
(4) caused by the normal operation of freight barging that is otherwise consistent with law; or
State Policy on Navigability -9- 07/04/99
83
(5) authorized by the commissioner after reasonable public notice.
(b) A violation of (a} of this section is a class B misdemeanor.
(c) An unauthorized obstruction or interference is a public nuisance and is subject to abatement. The cost of
abatement shall be borne by the violator and is in addition to any penalty imposed by the court.
(d) This section may not be construed to affect or abridge valid existing rights.
Thus, under the Alaska Constitution and this statute, any surface waters capable of use by the public defined in AS
38.05.365(12) are available to the public, irrespective of streambed ownership. Further, such public use is not considered a
taking and is not subject to inverse condemnation action. Private ownership is subject to the public rights that are protected
by the public trust.
1n two Montana Supreme Court cases involving the nature of public rights where the submerged lands are privately owned,
the court rules that public portaging, anchoring, and other uses incidents[ to the use of the water are allowed. The court also
found that iftravel on the water or streambed is obstructed, the public is allowed to use the adjacent private land to portage
around the barrier in the least intrusive way possible, avoiding damage to the property holder's rights. However, the public
does not have the right to enter into or trespass across private property in order to enjoy the recreational use of state-owned
waters. The State of Alaska agrees with this ruling and believes a similar ruling would be made by our state courts.
BOUNDARIES OF NAVIGABLE WATERS
The state is often asked where public ownership of water bodies ends and private ownership begins. There are two types of
water body boundaries to address: 1) non-tidal water boundaries and 2) tidal water boundaries. Non-tidal boundaries are
boundaries of lakes, rivers, and streams. Tidal boundaries are the boundaries along any body of water which is influenced by
the rise and fall of the tides.
1. Non-tidal Water Boundaries The boundary between public and private ownership is the "Ordinary High Water Mark"
which is defined in l .l AAC 53.900(23) as being -The mark along the bank or shore up to which the presence and action of
the non-tidal water are so common and usual, and so long continued in all ordinary years, as to leave a natural line impressed
on the bank or shore and indicated by erosion, shelving, vegetation, or other distinctive physical characteristics. Also see the
Alaska State Supreme Court definition in Department of Natural Resources v. Pankrantz 538 P.2d 984, 988-89 (Alaska
1975). The ordinary high water line can usually be observed by the laymen simply by noting the vegetation line or well
defined stream banks.
2. Tidal Water Boundaries The boundary between tidal water bodies and private/public owned uplands is the Mean High
Water Line. Mean high water line as defined by 11 AAC 53.900(15) is: The tidal datum plane of the average of all the high
tides, as would be established by the National Geodetic Survey, at any place subject to tidal influence.
This line is not readily observable because it is a line of known elevation which intersects the land surface. The mean high
water line can be a considerable distance below the vegetation line because extreme high water will denude the beach above
the line of mean high water. The only way that the location of mean high water line can be accurately determined is by
differentia] leveling from known bench marks or by operating a tide gauge for a sufficient period of time to determine the
mean high water elevation. The line of mean high water line can be approximated by time coordinated observations of the
daily predictions for high and ]ow waters, predicted by NOAA, as they relate to the published mean high water elevation.
This method can be highly unreliable because small errors in the predictions or observations can transform into large errors in
the horizontal location; this is especially true in areas where the beach gradient is very flat.
[t is important to note that in some areas, such as Prince William Sound, the mean high water line boundary is considerably
higher than the current mean high water line because the boundary became fixed at the 1964 pre-quake location. In this
instance the boundary between state-owned tidelands and the uplands would be established at an elevation which equals the
sum of the mean high water elevation plus the published amount of uplift or, in some cases, submergence.
CONCLUSIO~t
This paper describes the state's policies and procedures for managing and protecting state submerged lands and public waters.
As further legal and practical developments occur in this area, these policies and procedures will be reexamined by the state
and, if necessary, appropriate changes will be made.
State Policy opt Navigability -10- 07/04/99
~4
Sponsored by: Administration
CITY OF SEWARD, ALASKA
RESOLUTION 2009-063
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, REQUESTING THE USDA NATURAL RESOURCES
CONSERVATION SERVICES EXPEDITIOUSLY COMPLETE SOILS
SURVEYS IN THE SEWARD AREA
WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area
(SBCFSA) repeatedly; and
WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since
1986; and
WHEREAS, there are currently no accurate soils maps available for the lands within the
SBCFSA; and
WHEREAS, accurate soil mapping is necessary to help define historic flood zones and
to predict effects of future flooding events; and
WHEREAS, to provide the best possible management for flooding issues within the
SBCFSA accurate soils mapping is necessary; and
WHEREAS, the KPB Flood Plain Task Force and the SBCFSA are taking every
reasonable action to minimize future flood damage; and
WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils
maps to allow analysis of historic flood events and for use in designing flood prevention
structures and flood reduction planning; and
WHEREAS, the City of Seward Planning and Zoning Commission supported this
resolution at its July 7, 2009 meeting and recommended Council's approval; and
WHEREAS, the SBCFSA Board supported this resolution at its July 6, 2009 meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF SEWARD, ALASKA, that:
Section 1. The City of Seward officially request that the USDA Natural Resources
Conservation Service prioritize the SBCFSA for completion of soils survey as soon as possible.
Section 2. Copies of this resolution shall be sent to USDA Natural Resources
Conservation Service, Environmental Protection Agency (EPA) and the Kenai Peninsula
Borough.
Section 3. This resolution takes effect immediately upon its adoption.
~5
Council Agenda Statement
Meeting Date: July 13, 2009
To: Mayor and Council
From: Community Development Director Christy Terry
Through: City Manager Phillip Oates
Agenda Item: Requesting the USDA Natural Resources Conservation Services
Expeditiously Complete Soils Surveys in the Seward Area
BACKGROUND & JUSTIFICATION:
The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on
January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear
Creek Flood Service Area. The Task Force has made recommendations to address important flood
mitigation items and has requested legislative support from the local boards, commissions, the
Seward City Council and the Kenai Peninsula Borough Assembly.
The Seward Bear Creek Flood Service Area Board, Kenai Peninsula Borough and the City of Seward
are working to lessen impacts to flooding in the Seward area. Accurate soil mapping is necessary to
help define historic flood zones and to predict effects of future flooding events. The Kenai Peninsula
Flood Plain Task Force has identified the need for accurate soils maps to allow analysis of historic
flood events and for use in designing flood prevention structures and flood reduction planning.
At the request of the Kenai Peninsula Borough Assembly, copies of this resolution shall be sent to
the USDA Natural Resources Conservation Service and the Environmental Protection Agency.
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: N/A Approved by Finance Department:
RECOMl~~NDATION: 33
Approve Resolution 2009-~ Requesting the USDA Natural Resources Conservation Services
Expeditiously Complete Soils Surveys in the Seward Area.
~6
Introduced by:
Date:
Action:
Vote:
KENAI PENINSULA BOROUGH
RESOLUTION 2009-058
Long at the Request of the
Flood Plain Task Force
07/07/09
A RESOLUTION REQUESTING THE USDA NATURAL RESOURCES
CONSERVATION SERVICE EXPEDITIOUSLY COMPLETE SOILS SURVEYS IN
THE SEWARD AREA
WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area (SBCFSA)
repeatedly; and
WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since 1986; and
WHEREAS, there are currently no accurate soils maps available for the lands within the SBCFSA;
and
WHEREAS, accurate soil mapping is necessary to help define historic flood zones and to predict
effects of future flooding events; and
WHEREAS, to provide the best possible management for flooding issues within the SBCFSA
accurate soils mapping is necessary; and
WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force and the SBCFSA are taking
every reasonable action to minimize future flood damage; and
WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils maps to
allow analysis of historic flood events and for use in designing flood prevention
structures and flood reduction planning; and
WHEREAS, the KPB Flood Plain Task Force passed a resolution recommending that the assembly
request the USDA Natural Resources Conservation Service to expeditiously
complete soils surveys in the Seward area for the purposes described above; and
WHEREAS, the planning commission reviewed this resolution at its June 22, 2009, meeting and
recommended adoption by unanimous consent; and
WHEREAS, the City of Seward Advisory Planning Commission reviewed this resolution at its
meeting and recommended ;and
Kenai Peninsula Borough, Alaska
Resolution 2009-0~8
Page 1 of 2
WHEREAS, the SBCFSA board reviewed this resolution at its meeting and
recommended ;
NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI
PENINSULA BOROUGH:
SECTION 1. That the Kenai Peninsula Borough Assembly requests that the USDA Natural
Resources Conservation Service prioritize the SBCFSA for completion of a soils
survey as soon as possible.
SECTION 2. That copies of this resolution shall be sent to USDANatural Resources Conservation
Service, Environmental Protection Agency (EPA), and
SECTION 3. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH
DAY OF ,IDLY, 2009.
Milli Martin, Assembly President
ATTEST:
Johni Blankenship, Borough Clerk
Yes:
No:
Absent:
Resolution 2009-058
Page 2 of 2
C7 O
Kenai Peninsula Borough, Alaska
WHEREAS, the SBCFSA board reviewed this resolution at its meeting and
recommended
NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI
PENINSULA BOROUGH:
SECTION 1. That the Kenai Peninsula Borough Assembly requests that the USDA Natural
Resources Conservation Service prioritize the SBCFSA for completion of a soils
survey as soon as possible.
SECTION 2. That copies of this resolution shall be sent to USDA Natural Resources Conservation
Service, Environmental Protection Agency (EPA), and
SECTION 3. That this resolution takes effect immediately upon its adoption.
ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH
DAY OF JULY, 2009.
ATTEST:
Johni Blankenship, Borough Clerk
Yes:
No:
Absent:
Milli Martin, Assembly President
Resolution 2009-058 Kenai Peninsula Borough, Alaska
Page 2 oft
~9
Sponsored by: Administration
CITY OF SEWARD, ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION 2009-19
A RESOLUTION SUPPORTING COUNCIL REQUESTING THE USDA
NATURAL RESOURCES CONSERVATION SERVICES
EXPEDITIOUSLY COMPLETE SOILS SURVEYS IN THE SEWARD
AREA
WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area
(SBCFSA) repeatedly; and
WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since
1986; and
WHEREAS, there are currently no accurate soils maps available for the lands within the
SBCFSA; and
WHEREAS, accurate soil mapping is necessary to help define historic flood zones and
to predict effects of future flooding events; and
WHEREAS, to provide the best possible management for flooding issues within the
SBCFSA accurate soils mapping is necessary; and
WHEREAS, the KPB Flood Plain Task Force and the SBCFSA are taking every
reasonable action to minimize future flood damage; and
WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils
maps to allow analysis of historic flood events and for use in designing flood prevention
structures and flood reduction planning; and
WHEREAS, the SBCFSA Board supported this resolution at its July 6, 2009 meeting;
and
WHEREAS, the Kenai Peninsula Borough Assembly will review this resolution at its
July 7, 2009 meeting; and
WHEREAS, the Seward City Council will review this resolution at its July 13, 2009
meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING AND ZONING
COMMISSION, that:
Section 1. Council officially requests that the USDA Natural Resources Conservation
Service prioritize the SBCFSA for completion of soils survey as soon as possible.
Section 2. Copies of this resolution shall be sent to USDA Natural Resources
Conservation Service, Environmental Protection Agency (EPA) and the Kenai Peninsula
Borough.
~®
CITY OF SEWARD, ALASKA
Resolution 2009-19
Section 3. This resolution takes effect immediately upon its adoption.
PASSED AND APPROVED by the Planning and Zoning Commission of the City of
Seward, this 7~' day of July, 2009.
THE CITY OF SEWARD, ALASKA
Sandie Roach', Chair
AYES: Ecklund, McClure, Morgan, Roach', Stauffer
NOES: None
ABSENT: Heinrich
ABSTAIN: None
VACANT: One
ATTEST:
Jean Lewis
City Clerk, CMC
(City Seal)
~~
City of Seward, Alaska City Council Minutes
June 22, 2009 Volume 38, Pa e
CALL TO ORDER
The June 22, 2009 regular meeting of the Seward City Council was called to order at 7:00
p.m. by Mayor Clark Corbridge.
OPENING CEREMONY
Police Lieutenant Louis Tiner led the pledge of allegiance to the flag.
ROLL CALL
There were present:
Clark Corbridge presiding and Willard Dunham
Jean Bardarson Betsy Kellar
Bob Valdatta Marianna Keil
Tom Smith
comprising a quorum of the Council; and
Phillip Oates. City Manager
Jean~Lewis, City Clerk
Cheryl .Brooking, City Attorney
'ABSENT -None
CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED
FOR PUBLIC HEARING
Keith Campbell requested council support and approval for Resolution 2009-053 for the
issuance of GO bonds_on the Library/Museum Project, and also for Resolution 2009-054 which
would pay for the bonds with a half cent sales tax increase. Campbell stated that if these issues were
put before the voters, the Seward Library/Museum Building Committee would help to sell the project
to the community.
Monica Hinders had submitted paperwork to be on the Historic Preservation Commission.
She introduced herself and stated she would make them proud for their appointment of her.
David Squires, received a late fireworks permit request for the McDonald property on Mile 2
of Nash Rd for Saturday night at 5 pm. He requested an addition to the agenda to schedule a special
meeting for this and hoped it would be approved.
APPROVAL OF AGENDA AND CONSENT AGENDA
Motion (Bardarson/Dunham) Approval of Agenda. and Consent Agenda
~2
City of Seward, Alaska City Council Minutes
June 22, 2009 Volume 38, Pa e
The following was added to the agenda:
Scheduling of a special meeting for a Carlile Fireworks on city land request.
The following was removed from the consent agenda:
Resolution 2009-051, Accepting A Grant From The State Homeland Security Grant Program
In The Amount Of $350,000 For. The Purpose Of Expanding And Updating Infrastructure
Security Cameras.
Motion Passed Unanimous
The clerk read the following approved consent agenda items:
The June 8, 2009 Regular City Council Meeting Minutes Were Approved
Monica Hinders Was Appointed To The Historic Preservation Commission With A Term To
Expire May 2012.
Resolution 20.09..-050, Authorizing The Discharge Of Fireworks By The Chamber Of
Commerce During The 2009 Independence Day Celebration.
Resolution 2009-052, Authorizing A One Year Contract For $449,472.00 With The State Of
Alaska, Department Of Corrections, To Provide For Operating The Seward Community Jail
And Housing Prisoners Charged And/Or Sentenced Under Alaska Statutes.
SPECIAL ORDERS, PRESENTATIONS AND REPORTS
Proclamations and Awards
Mayor Corbridge highlighted the displayed award trophies sent by Mayor Sunagawa from
Obihiro Japan that were gifted annually to the Mt. Marathon Race for the 1St 2"d and 3rd place
winners and the Silver Salmon Derby Trophy gifted by Toshio Otomo, Chairman of the
Obihiro Committee for International Friendship.
A proclamation was read for Parks and Recreation Month.
Alaska Flag Day was recognized with a proclamation.
City Manager's Report. City Manager Phillip Oates stated there were no expenditures
between $10,000-$50,000. He informed that the city was requesting sealed competitive proposals
for the Evan Casey Skate Park upgrade and had attached and provided the criteria for the selection
process for the council to see. He notified that as of June 18, 2009, the Alaska Department of Health
and Social Services had confirmed 23 cases of H1N1 (Swine Flu) in Alaska.
~~
City of Seward, Alaska City Council Minutes
June 22 2009 Volume 38, Page
• Library/Museum Project. The Library Museum Building Committee thanked those who
attended the site dedication on June 18, 2009. Dot Bardarson, Kyle Schneider, and Seward
Singers providing the tunes and the Seward Ministerial Association blessed the project.
• Harbor/SMIC. The harbor had taken steps to permit an improved fish-cleaning station in the
NE area. The Alaska Department of Fish & Game had committed $100,000 for this project,
but approximately $300,000 in additional funds would be needed to reach completion.
PACAB held a work session to outline capital improvement priorities and funding
possibilities for the Seward Marine Industrial Center Storage and Maintenance Yard. The
prioritized improvements with grant applications already completed for the top two are:
o Vessel Washdown Pad & Water Treatment Facility
o Electrical Infrastructure Improvements
o Drainage, Culverts, D-1 Gravel Layer, and Water Infrastructure
o Fence surrounding Block 4 of SMIC
o Public Restrooms
New fish hanging racks would be installed on Q float, along with new life rings being
installed at travel lift docks in accordance with OSHA requirements.
• Community Development. A 'volunteer appreciation picnic was scheduled at the Branson
Pavilion for Friday June 26"' beginning at S p.m. On June 2, 2009, Community Development
partnered with the Alaska Small Business "Development Center and the Procurement
Technical Assistance Center (PTAC) to provide a free Government Contract Seminar titled
10 Steps to Successful Government Contracting. Oates informed that the Planning & Zoning
Commission had begun examination of theTitle 15 code revisions. These revisions had been
distributed to the Port and Commerce Advisory Board, Historic Preservation Commission,
City Council, were posted on Seward City News and were made available to the public.
Additional work sessions would be scheduled. Oates also presented information and
.photographs of the progress at Seward Mountain Haven.
Oates extended his thanks to the fire department volunteers that responded to sixteen emergency
calls while the Fire Chief and the Deputy-Fire Chief were away in Michigan purchasing the new
firetruck.
Other Reports, Special Presentations
An Overall Audit Presentation Was Given By Michelle Drew of Mikunda, Cottrell &
Co.
A Wellness-For-All Presentation Was Given By Patty Beals. This groups mission was to
establish Seward as a city of wellness. They had focused on five areas for improvement; reducing
tobacco use, fostering fitness, oral health, awareness and access group to resources, and choosing
healthy behaviors.
94
City of Seward, Alaska
June 22, 2009 City Council Minutes
Volume 38, Pa e
NEW BUSINESS
Resolution 2009-049, Authorizing The City .Manager To Amend And Extend The
Maintenance And Operating Agreement With Seward Ship's Drydock, Inc. Through
September 30, 2010.
Motion (Keil/Kellar) Approve Resolution 2009-049
Oates wished to summarize the background and- justification of the long pursued
development of the Seward Marine Industrial Center for the public. The city had extended over $40
million dollars for improvements 'and infrastructure to this area. An initial maintenance and
operating (M&O) agreement was signed on 4/25/95 between the city and' he operator, Seward Ships
Drydock. A second M&O agreement was signed on 3130/2000, and extended in 2005. The current
M&O agreement now expires 6/30/2009.' The Seward City Council went into executive session on
3/10/2009 to discuss possible litigatioriwith Seward Ships Drydock (SSD) in regards to their
maintenance and operating agreement, and approved a unanimous motion which found them in
default of the M&O agreement and authorized the_city manager to discuss defects and conditions
with SSD in whatevex detail deemed appropriate'. If addressed defects were corrected, the council
was willing to discuss negotiations for a successor M&O agreement. If conditions and timelines set
by the citymanager-failed to be islet, the council would proceed to terminate the M&O agreement
because of default.If the council terminated the M&O agreement, the city would act to terminate
Seward Ship's'Drydock'sgrouisd lease within 30 days thereafter. At another executive session held
on 6/1/2009, the city council again gave direction to the city manager on how to proceed with SSD
on the M&O agreement.
..Oates had discussions with SSD on the cofferdam cells and the importance of having the
splash zone coated to avoid further corrosion. He felt a 15-month extension gave SSD the time
needed to determine the best course of action in accordance with the M&O agreement. Coating
needed to be applied and. completed by SSD before 9/30/2010. If completed the M&O agreement
may be extended beyond that date, subject to council approval. This 6t" amendment would extend
the term period for the purposes of allowing the operator to cure all defaults and to amend Section
3.04 changing the inspection agency from NEI Syncrolift, Inc to Pearlson Shiplift Corporation for
certain annual inspections, all subject for attorney review. Passage of this resolution today was
important because it would supersede the council motion passed on 3/10/2009 which finds SSD in
default of the M&O agreement on 6/30/2009.
Oates indicated the maintenance of the shiplift was a primary concern for the city, and with
three areas of the M&O agreement needing attention:
The cathotic protection system, which the consensus from council and independent
inspectors was it had not been maintained properly. Arbitration found this would be a capital
improvement but did not address whether the facility had been properly maintained. There
95
Ciry of Seward, Alaska City Council Minutes
June 22 2009 volume 38, Pale
was still an issue on how much damage was done and if this system had been properly
maintained.
2. The flash zone area, which needed coating to protect the metal from the salt water. The
city's position was that if this coating had been applied, it was not applied properly and not
maintained over the years. SSD argued this was a capital improvement.
3. Maintenance of the Synchrolift, which was a lessor'concern and had some issues because of
changes in manufacturers.
Oates concluded that this resolution protectedthe city's position that SSD is in default with
the M&O agreement but allowed additional time for SSD to have the facility properly maintained.
He pointed out that Seward Ship's Drydock disagreed that they were in default. Oates clarified it
was not the city's intent to kick out the operator, but to insist the facility be properly maintained.
City Attorney Cheryl Brooking stated the alternative for not approving this sixth
amendment was that the existing agreement would expire in eight days. At that point, the city would
take over the lift and either shut it down or run it themselves. Seward Ships Drydock was in default
now and they could either agree with the extension or walk away. She emphasized there were two
agreements which were somewhat linked. together. The agreement for the maintenance and
operation of the facility and an upland lease, that the city had paid $400,000 in lease credits to make
sure the splash zone coatings were .replaced, which the city contended weren't done. Brooking
stressed the sheet pile and cofferdam cells were actively corroding at an aggressive rate. If the M&O
agreement was terminated he city could terminate the upland lease with a 30-day notice.
Valdatta wanteda definite completion date set for the maintenance.
Dunham thought this was in the best interest for both parties even though it was not
completely palatable for either side. He understood Whitman disagreed and was not pleased but
noted this needed to be worked out for the parties to co-exist in the future. He stated this agreement
gave crock-solid date for the repairs to be fixed.
In response to questions by Keil, Oates stated only the lease could go to arbitration. He had
informed D.J. Whitman that depending on all the factors, Oates was prepared to consider an
extension of the lease'as a capital improvement and take that to the council if the particulars were
made known during this extension.
Brooking stated all indications were a refusal to do the work.
Amendment (SmithBardarson) On the 6`h WHEREAS, remove the words
"will use its best efforts to improve the
condition of the City's Shiplift Facility" and
replace it with "will provide the city with its
recommended procedure which complies
with NACE standards for correcting the
splash zone maintenance problem. The City
will review the recommended procedures and
g~
City of Seward, Alaska City Council Minutes
June 22, 2009 Volume 38, Page
if accepted by the City, Seward Ship's
Drydock will complete the corrected
maintenance by September 30, 2010.
Amendment Passed Yes: Dunham, Bardarson, Valdatta, Smith,
Corbridge
No: Kellar, Keil
The rules were suspended by unanimous consent to allow D.J. Whitman to speak and answer
questions fora 15 minute period.
In response to questions by council, D.J. Whitman stated he disagreed on being in default
and also disagreed with the terms of this amendment. His suggestion was to extend the current
agreement for 90 days until both parties could come to an understanding. He thought this agreement
was more like a demand and he also bought the NACE standards language was too vague. He
didn't disagree that there was a problem.. Whitman announced the problem started in 1983 not 1995.
He acknowledged the sheetpiles absolutely'n~ededto be re-coated. He felt it was now a major
capital improvement and could not be band-aided. If SSD was going to spend $500,000 they would
want their lease extended and credits for it.
Whitman thought he agreement was a writtendemand and too open-ended and didn't state
that anv .capital credit vUOUld be ahowed. He also felt he didn't get a fair chance to go over this
agreement beforehand:
In response to questions by Council member Smith, Whitman had agreed to perform all the
routine, annual and `regular maintenance. He noted there was also a specific list of deferred
maintenance that was a hit list from NEI Synchrolift which he thought was all tied together.
Whitman stated after reading NEI Synchrolift and Lloyd's reports you would find the cell structure
and piling mentioned in them. He agreed one of the major items of contention was whether this
maintenance was a capital improvement or general maintenance item. Whitman felt it was a capital
improvement because the coating system had outlived its useful life and was put on in 1983 prior to
the driving of the sheetpiles.
Smith felt paint coating was preventive maintenance, not a capital improvement.
Whitman stated the coating was designed to last 15-20 years, and had ten years of failure on
it when they accepted it.
Dunham saw this as a way to get this accomplished between the two parties. He didn't see it
as a do or die situation, but a workable situation for the next 15 months and thought there shouldn't
be anymore side-stepping.
Bardarson concurred this was not a capital improvement, but both parties needed to share
responsibility and noted Section 3 stated both parties must agree.
~~
City Council Minutes
Ciry of Seward, Alaska Volume 38, Page
June 22 2009
Whitman stated their attorneys had advised them not to sign this agreement as written.
Suspension of rules ended.
Harbormaster Kari Anderson stated they had contacted SSD about the problem with the
protective coatings in 2008, so this was not a newly addressed issue.
Oates stated this was not the partnership.. he would hope for. Every step had been a struggle.
Oates reiterated he was not trying to nul them out of tlxe shiplift, but wanted the City's facility
maintained. It was his contention that SSD was in default of the M&O agreement for not
maintaining the cathotic protection s~~stezn and the maintenance of the coating on the splash zone.
He reminded that the city had 3rd. party independent decisions that supported the city's claim. Oates
had no objection to consider this as a capital improvement but needed the system in place to protect
it from this point forward. 90 days will not resolve this issue and would only result in more of the
same.
Smith stated the cty,_owned the facility and had a vested right to agree to how it was
maintained. He felt this 1 Smonth extension and the requirement to fix it was reasonable. If SSD
felt they received it that way in 1995, they shouldn't have accepted it. He also felt this was a
maintenance issue...:
lu response to questions by Keil,City Attorney Cheryl Brooking clarified that arbitration was
a provision in the lease itself. The lease was also scheduled to expire the end of June 2009. The
lease pro~~ision allowed extensions forcapital improvements done on either the leased area or the
shiplift facility which ilzcluded the synchrolift and the dock. The reason this went to arbitration was
:because the capital improvement suggestion was replacement of the electrical cathotic protection
system which council felt was already a required obligation under the M&O agreement. It was not a
new mprovementthat would qualify for a lease extension. The arbitrators felt the lease did not
define improvement and authorized the extension of the lease to 2013. Brooking stated the
arbitrators specifically did not address any obligations under the M&O agreement or whether it was
already required.
City Council took a ten minute recess at 8:50 p.m.
City Council resumed at 9:00 p.m.
Amendment (KeiUBardarson) Add a new "WHEREAS, upon completion of
the coating the city may consider the cost of
the coating as a capital improvement.
Keil hoped this amendment would get the parties where they needed to go because she
couldn't stand litigation.
Amendment Passed Unanimous
Amendment (Bardarson/Keil) Add the word "substantially" to Section 1
~~
City of Seward, Alaska City Council Minutes
June 22, 2009 Volume 38, Page
Amendment Passed Unanimous
Main Motion Passed as Amended Unanimous
Resolution 2009-051, Accepting A Grant From Ttie State Homeland Security Grant Program
In The Amount Of $350,000 For The Purpose Of Expanding And Updating Infrastructure
Security Cameras.
Motion (Kellar/Bardarson) _~pprai~e Resolution 2009-051
Oates stated the city had recently completed a security vulnerability assessment to protect city
of Seward infrastructure. Acceptance of this grant would better enable Seward to protect critical and
expensive infrastructure. It was his position to make the positioning of these cameras a council
matter. He reminded this resolution was only for accepting the grant. Oates said these cameras were
monitored occasionally by dispatchers and were used'to solve crime and as evidentiary evidence.
Some members wanted a policy developed on how these cameras would be installed, where
located, how controlled, and'approved finally bythe city council.
Council requested aid Oates had. no objection bringing a written surveillance policy for the
securih~ cameras back=to`the council.
1la~~of- Corbridgc dcclar-ed .Council member Keil's comments out of order.
Kellar wanted the cameras used for security vulnerability assessment issues only. She did not
think it was the role ofgovernment to follow citizens.
Keil apologized. She just objected to having cameras on the streets and wanted people to be
aware when they were under surveillance.
Oates mentioned having cameras in the harbor had been extremely valuable for deterring
crime in that area.
Amendment (Kellar/Keil) In the 2"d WHEREAS, delete the words "and
expansion of
Oates stressed it would kill the grant without that wording in the resolution.
Amendment Failed Unanimous
Motion Passed Yes: Smith, Valdatta, Bardarson,
Dunham, Corbridge
No: Kellar, Keil
~9
City of Seward, Alaska City Council Minutes
June 22 2009 Volume 38, Page
Resolution 2009-053, Providing For The Submission To The Qualified Voters Of The City Of
Seward The Question Of The Issuance Of Not To Exceed $5,000,000 In General Obligation
Bonds Of The City To Finance All Or A Portion Of The Construction Of A Combined
Library/Museum Capital Improvement Project.
Motion (KeiVSmith) Approve Resolution 2009-053
Oates stated this resolution put the question on the~ballot this fall. He stated if the vote of the
people was successful, it would come back to couneiP only after all other funding was available and
binding. A revenue source would have to.be decided.
Valdatta was concerned and wondered if the people could afford it in this economy.
Dunham understood if the'match money wasn't there, it wouldn't happen. There would have
to be a commitment by the community far a portion of this to be paid. 'He also mentioned that in this
market there was a chance the bonds wouldn't sell.
Oates stated the community would need to put in matching funds and have this project at
35% design to address funds from the legislature.'
Motion Fussed - Unanimous
Resolution 2009-054, Providing For The Submission To The Qualified Voters Of The City Of
~~ Seward,~An ~~~d~~isc-ry Question OnWhether To Increase The Sales Tax Rate By 0.5% As
Needed To Fund Operating And Capital Costs Of A New Library/Museum, Understanding
That Sales Tax Revcnues'Canuot Be Dedicated For A Specific Purpose.
Motion (Bardarson/Dunham) Approve Resolution 2009-054
Oates stated this was an advisory vote because the city council had the authority to establish a
sales tax regardless of the vote of the people. All revenue sources were considered but sales tax was
picked because it want across all demographics. A half cent increase would put total sales tax at
7.5% and would g~r~erate $500,000 a year. Oates reported this would fund the cost of the debt
service of the $5 million dollar bond plus the full cost of operation (possible addition of 3 people)
and maintenance of the new facility. Council could repeal the tax once repaid but could not dedicate
it as a revenue source for repayment of the GO bonds. The building committee thought this was the
fairest way to re-pay the bonds.
City Attorney Cheryl Brooking stated the payoff period would be 25-years and clarified a
sales tax was an operating tax. A future council could get rid of it. The amount would have to be
appropriated every year to pay the bonds. This would provide the sufficient funds for the additional
costs. Libraries were not typically a money making venture.
Motion Passed Unanimous
OTHER NEW BUSINESS
~. ~ Q
City of Seward, Alaska
June 22, 2009 City Council Minutes
Volume 38, Pa e
A work session on the evaluation process was scheduled for July 13, 2009 at 6:00 p.m.
A special meeting was scheduled by Mayor Corbridge for Wednesday, June 24, 2009 at
5:15 p.m. to address a resolution allowing Carlile Transportation Systems to shoot off
fireworks on their land within the city limits.
INFORMATIONAL ITEMS AND REPORTS (r'1'o crctionrequirec~
COUNCIL COMMENTS
Keil wanted to make sure Obihiro, Japan was properly thanked for the beautiful trophies they
traditionally sent each year.
Smith after a long meeting, was quoted as saying; "if we wrote the constitution we would
still be a colony."
Dunham spoke of the letter Senator Stwens sent about Wyndam. He asked for clarification
on the difference between bids for the' lift station, ..and congratulated the Chamber of Commerce
ahead of time on their 4''' of July festivities they always put on. He was sorry to hear of the passing
of Frank Dieckgraeff. Dui~llam said Dieckgraeff was a real friend and a huge booster of the
community and he sent-his sincere ympathy to his family.
.CITIZENS' COMMENTS
Jerry Woods said the council was welcome to tax him for the new library/museum project.
He was on the committee and stated they had put in many hours into this project. He wanted it noted
that this was the day this facility got off the ground and started. He thanked the city council for their
support.
COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS
Oates mentioned that around $11,000 was involved in supporting the Senator Stevens letter
on Wyndam and he would possibly bring it back to the council. He said the lift station needed
workable parts and he would see that council got their answer soon.
Keil thanked the library/museum committee for all their hard work.
ADJOURNMENT
The meeting was adjourned at 10:00 p.m.
~~~
City of Seward, Alaska City Council Minutes
June 22 2009 Volume 38, Page
Jean Lewis Clark Corbridge
City Clerk Mayor
(City Seal)
~~~
Ciry of Seward, Alaska Ciry Council Minutes
June 24, 2009 Volume 38, Pa e
CALL TO ORDER
The June 24, 2009 special meeting of the Seward City Council was called to order at 5:23
p.m. by Vice Mayor Willard Dunham
OPENING CEREMONY
Fire Chief David Squires led the pledge of allegiance to the flag.
ROLL CALL
There were present:
Willard Dunham presiding and Jean Bardarson
Betsy Kellar Tom Smith
comprising a quorum of the Council; and
Kirsten Vesel, Assistant City Manager
Jean Lewis, City Clerk
David Squires, Fire Chief
ABSENT -Clark Corbridge, Marianna Keil, Bob Valdatta
CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED
FOR PUBLIC HEARING -None
APPROVAL OF AGENDA
Motion (Bardarson/Kellar) Approval of Agenda
Motion Passed Unanimous
NEW BUSINESS
Resolution 2009-055, Authorizing The Discharge Of Fireworks For Carlile Transportation
Systems During The 2009 Independence Day Celebration.
Motion (Kellar/Bardarson) Approve Resolution 2009-055
Assistant City Manager Kirsten Vesel stated Carlile Transportation systems had requested
a permit from the city to conduct a fireworks display in conjunction with the 4`h of July festivities for
a family event on their property on Mile 2 of Nash Road, which was inside the city limits and needed
council approval. The site was approved by the Fire Chief, insurance was produced and Vesel
recommended the approval of this resolution.
1~3
City of Seward, Alaska City Council Minutes
June 24 2009 Volume 38, Page
Motion Passed Unanimous
COUNCIL COMMENTS -None
CITIZENS' COMMENTS -None
COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS -None
ADJOURNMENT
The meeting was adjourned at 5:29 p.m.
Jean Lewis, CMC
City Clerk
(City Seal)
Willard Dunham
-:Vice Manor
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13
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1
7:OOpm City Council -
11:30arr, Seward ~~
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_
Meeting
Community
Ubrary & Museum
Building
Committee
_ _ _ 17
18
19 --- -
20 --
_ _ _
6:30pm P&Z W4t'k Session
12:OOpm PACAB Work
9:OOam Social Security , _ _ 2
Session Rep
6;30pm Historic
Preservation
Meeting
_ 24 ----- _ 25 26
- 27
- 2
7:OOpm Ciry Council ~ - - -
Meeting
~
I
-
31
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l
T
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nip.,..: n:.-~.,... _ _ _ - - - - - _ _~ -
7/8/2009 2:59 PM
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