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12142009 City Council Packet
Seward City Council Agenda Packet Happy Holidays Decemberl4, 2009 Council Chambers Beginning at 7. 00 p.m. 1963 1965 2005 The City of Seward, Alaska M-Am��,.�...� CITY COUNCIL MEETING AGENDA encac�m , 1 I I r {Please silence all cellular phones and pagers during the meeting} December 14, 2009 7:00 p.m. Council Chambers 1. CALL TO ORDER Willard E. Dunham 2. PLEDGE OF ALLEGIANCE Mayor 3. ROLL CALL Term Expires 2011 4. CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING. Jean Bardarson [Those who have signed in will be given the first opportunity to Vice Mayor speak. Time is limited to 2 minutes per speaker and 30 minutes total Term Expires 2010 time for this agenda item.] S. APPROVAL OF AGENDA AND CONSENT AGENDA Robert Valdatta [Approval of Consent Agenda passes all routine items indicated by Council Member asterisk (*). Consent Agenda items are not considered separately Term Expires 2011 unless a council member so requests. In the event of such a request, the item is returned to the Regular Agenda] Tom Smith Council Member 6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Term Expires 2011 A. Proclamations and Awards B. Borough Assembly Report Vanta Shafer C. City Manager's Report ,r Council Member D. Mayoral November Report ......................................Pg. 4 Term Expires 2011 E. Other Reports, Announcements and Presentation Marianna Keil 7. PUBLIC HEARINGS Council Member Term Expires 2010 A. Resolutions Requiring a Public Hearing Linda Amberg 1. Resolution 2009-134, Authorizing The City Manager To Enter Into Council Member A Special Contract With The Alaska Railroad For Discounted Electric Rates Term Expires 2010 For The Alaska Railroad Coal Facility................................................Pg. 13 2. Resolution 2009-135, Authorizing The City Manager To Enter Into Phillip Oates A Special Contract With Icicle Seafoods, Inc. For Discounted Electric Rates City Manager For Seward Fisheries.............................................................Pg. 20 Jean Lewis 3. Resolution 2009-136, Authorizing The City Manager To Enter Into City Clerk A Special Contract With The Seward Association For The Advancement Of Marine Science (SAAMS) For Adjusted Electric Rates.....................Pg. 27 Cheryl Brooking City Attorney 4. Resolution 2009-137, Authorizing The City Manager To Enter Into A "Second Amended And Restated Agreement For Lease Of Tract 2A, Waterfront Tracts, And The Lease, Operation And Maintenance Of The Alaska Sealife Center" With The Seward Association For The Advancement OfMarine Science.".............................................................Pg. 36 City of Seward, Alaska I Council Agenda December 14, 2009 Resolutions Requiring a Public Hearing Continued ... 5. Resolution 2009-138 Authorizing The City Manager To Enter Into A Lease Agreement With The Seward Association For The Advancement Of Marine Science (SAAMS) For The Tenancy Of The West And Central Office Spaces, Including Common Areas And Restrooms Of The Railroad Depot Annex Building Located At 501 Railway Avenue ...... Pg. 200 6. Resolution 2009-139, Authorizing Participation In The 2010 Community Development Block Grant Program For A Total Of $252,925 For An ADA Accessible Boardwalk Along The Southern Edge Of The Small Boat Harbor Connecting The New South Float System (Q,M,N,O,P) With S Float And The South Launch Ramp Areas, While Creating ADA Accessibility Throughout The Harbor.......................................................Pg. 205 8. UNFINISHED BUSINESS A. Item for Reconsideration Motion for Reconsideration of Resolution 2009-108. ('Must pass by 2/3)........ Pg. 210 1. Resolution 2009-108, Adopting The Parking Enterprise Fund Budget For Calendar Year2010 and 2011.................................................................. ...Pg. 213 9. NEW BUSINESS A. Resolutions *1. Resolution 2009-141, Adopting To Participate In The 2010 AMLJIA Loss Control Incentive Program For The City Of Seward .......................................... ..Pg. 215 *2. Resolution 2009-142, Authorizing A Contract Through December 31, 2010, With Alaska Newspapers, Inc. For Display Advertising In The Seward Phoenix Log At A Reduced Rate Of $335.50 Per Week And Establishes Other City Advertising Rates At $11.00 Per ColumnInch.......................................................................................Pg. 218 *3. Resolution 2009-143, Approving The Revised City Employee Drug And Alcohol Policies............. ..................................................................... ............ Pg. 224 B. Other New Business Items * 1. Approval Of The September 28, 2009, November 9, 2009, And The November 23, 2009 Regular City Council Meeting Minutes And The November 24, 2009 Special Meeting City Council Meeting Minutes..................................................................Pg. 277 *2. Non -Objection To The Beverage Dispensary Liquor License Renewal For Thorn's Showcase Lounge.............................................................................. .Pg. 311 10. INFORMATIONAL ITEMS AND REPORTS (No action required) City of Seward, Alaska December 14, 2009 19 Council Agenda 11. COUNCIL COMMENTS 12. CITIZENS' COMMENTS [5 minutes per individual - Each individual has one opportunity to speak.] 13. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS 14. ADJOURNMENT City of Seward, Alaska Council Agenda December 14, 2009 NOVEMBER MAYOR REPORT It has been busy with meetings both council and other sessions in and outside of Seward. I had my second meeting with local business folks. This one was with the local contractors. Attending were local builders, state construction engineers, project managers, and area contractors. These do business in Seward. City staff attending were the city manager, Christy Terry, Stephan, David Squires and Vice Mayor Bard arson. Items covered were our permitting process and how it could be Iimproved or speeded up. No major snags were identified except the various stops required to get a permit started and completed. Some questioned the recent re -arrangement of our office and if this would make the applicants have to travel all over to get the paperwork done. Smoothing out of the process was appreciated. The discourse was open and staff was very helpful. I thought it was productive. I was surprised to find almost all of the various building projects were being financed by outside sources. Not our banking community. I plan on meeting with them in the future, but it is strange that all such building funds are coming from credit unions, AHFC, etc. One contractor was down somewhat due to the slower tourist season. There was some concern as to what 2010 will bring. I raised the question of the 30 ft. lots. Only one contractor stated he could be interested in building on them to provide housing for retirees, first-time home buyers or couples and singles. The others were not interested in construction of smaller houses. We did have some lively discussion on state building contracts and engineering plans. These had some snags in the past but recently have been worked out. All projects locally were underway and all felt positive things are coming to Seward. In sum, it was a good session —• and very upbeat. I have more meetings planned with local businesses and will report whens they occur. Apparently this is the first time anyone has taken the time to meet with them and work together. It is kind of fun. I have a set of questions to put forward for each group: How does Seward look to you? How can we be of help to you? What are your thoughts on future needs and what improvements to the system do we need to make? Most of all we are opening some doors. I participated in a teleconference with Sen. Begich and several other mayors, environmental groups and fisherman lobbyists. The topic was the climate control bills moving around the Capital. There are two that are of major thought to Alaska at present. These will begin to show some movement in early or late spring after a world leaders meeting in Denmark, The Health Bill has to be finished and off the floor before anything of consequence happens on that. When it does start to move it will be centered around JOBS not emissions. Jobs for the Future will take center stage over all else. There is much concern over the carbon tax bills floating around. There are four out on that issue. There is much concern over what they could do to our economy. All would have a heavy effect on Alaska bussiness: fishing, air travel, etc. I did have an opportunity to tell him of our problems: coal terminal threats and the shipyard suit. I also mentioned that this represents millions of dollars to our community in wages, goods sold, and trade, The senator's caution to us was to be active and follow along as legislation begins to move next year. I spent five days at the AML Mayors Conference in Anchorage 11;16-11/20. The sessions started on Monday with a meeting of Kodiak,Valdez, Providence Hospital Group, and Seward. This was to talk about our Long -Term Care Center. Each was interested in something similar in their towns. (Yes, even Anchorage) Kris and I spoke of how ours came about and the process we wound up doing and the $27 million bonding. They all have care centers of some sort or another, Kodiak a 17- unit,Valdez 20, Anchorage 200+. They were very interested in the CO -Op agreement between the hospital/LCT, the Green House theory and how we came up with it. I would expect that we will have more coming to Seward to look at it .It seems several of the villages and corporations are interested also. They were very interested in how the changes which have come about with some of the residents also. The Mayor's conference began on Tuesday. It's thrust was to cover issues which effect our communities and develop a priority list of what we need or will help us the most. This list then moves to the AML body and the major listings of all to the lobbying efforts of AML and our various groups who travel to Juneau for meeting and lobbying legislators. I have attached the four item broad issues for your information. I did bring up our being targeted by various environmental groups on our coal export facility, shipyards and upland storage areas. There does not seem to be any industry in Alaska which is not under attack in some form or another. The feeling of most was we need to find some middle ground state-wide if Industry is to survive and grow. Delta is looking forward to the ARR expansion to their town, They have had the expansion to GVEA T/A line to the Pogo Mine. Now, with the military needing the railroad, this really improves the transportation system there. It will be a huge help to the agriculture industry also. Several have abandoned vessel problems as we do. Cordova has a possible million dollar one. It seems a company bought a 200' vessel at a Marshall's sale for a dollar! It sank in the harbor and the owner is in bankruptcy. Cordova has spent a half million amount to resolve the issue and all agencies are full of advice and fines are coming, but the vessel still sits on the harbor bottom. At least ours are on the ground I hope! It was heartening to hear of the progress being made around the state by the Stimulus Funds. Nome hospital, Sand Point new harbor & fish plant, Elim new water tank, Skagway new city bldg and hydro plant completion. Some spoke of energy costs: Healy 23 cents higher, Eggik 93, Bristol Bay 53. Gas prices have gone up as high as $5.75, $6. $6.50, $9, $ l 0.50. It is staggering when we think our prices are high. I was able to get a resolution approved to oppose a reduction of the M.A.P. agents around the state under the Marine Advisory Program. There are 10 sites and they are slated to be reduced by 6. These are very important offices which work on industry standards, in fisheries and many other industries. Seward has been on the list for years but never been able to get one assigned by the UAF or NOAA. I assume that is out forever now. Please read the attached resolution on smoking, which did not pass,but will continue to appear I'm sure. It will be presented by some to the legislature by our sister cities, several of which are in the process of curtailing smoking in their towns and villages. The final segment was that 17 Mayor's were invited to testify before the House Resources Energy Committee. In my testimony I spoke of the agreement that we had signed between Chugach Electric, MEA and and Seward in response to the GRETC Bill. We felt it was time to move on and they needed to move forward as well. I pointed out that a least three studies have been done in the last 10yrs.That the last four administrations have not allowed use of the Railbelt Intertie Funds which were appropriated some 25 + yrs ago to upgrade and improve our utilities. These funds have been pulled back, even the interest. Very little has been allowed to be used by the utilities and now the state is instructing the utilities to band together but are still not forthcoming in what the state will bring to the table. We now face a crisis in fuel supply and if the South Central faces a severe cold spell this winter or next, they will really see what it is like to sit in the dark, or suffer with rolling blackouts to keep customers from freezing up. In Seward we are better off than most as we have a backup system and can keep our heat and lights on along with some of our nearby neighbors. I did get several thankyou's from others and the Chairwoman Millet looked me up at the Anchorage reception to thank me for my remarks. AML 11/17-11/20. We we greeted by Gov. Parnell via teleconference The governor in his brief remarks 5 stated revenue sharing would stay the same. Some Capital projects will be in his budget request, and then he was gone. Attorney General Dan Sullivan spoke on a new emphasis by the Dept. of Law on domestic violence, rape and child abuse. The state administration will act to the maximum to combat .� lawsuits timed to shut down development of Industry, upgrade and push transportation issues. He was very concerned about the carbon reduction goals of 17% and targeted 20% reduction in one vehicle mile transport schedule being looked as in the present Carbon Tax legislation. NONE of taxes collected would go to the transportation funding, yet they would have a huge impact on the very costs of transportation of all goods and people movement. There were workshops of all kinds. I attended the Transportation and Economic Development ones. There were two on the various Gas Line propositions. I passed on them as I am waiting on some more meaty action than I have seen so far. There was one which was of some interest, It was a reverse of the ANGA one passed by the voters several years ago. This would bring LP or Propane by Barge from the North slope down to coastal Communities instead of out of Valdez as ANGA proposed. The issue of the new legislation does not bode well for Alaska. The issue of matching funds, no state transportation fund, governor wanting to hold back the 8 cent a gallon fuel tax, etc. We are in trouble. REPORT from Alaska Delegation. Rep. Young's office:They will have a Coast Guard ice breaker working additional time in the Arctic, tug boat changes, inspections coming and Northern passage traffic just a few of things to come. We are lacking in good Marine Science of our areas/coast. T-lu funding who knows when. Formula funds for Alaska way down. As is Hydro funding since not included in Stimulus schedules. Clean water and the navigability water issue is something we are going to have a huge fight over. Waxman/Marker bill may pass. Although there are five bills working around the capital, not all are transportation bills, but all affect it one way or another. Most put the tax funds into the general fund not highways. The National Trust Fund may get passed or not and funded or not. Sen Murkowski is very concerned about bills related to climate change, available science and the mix of the two. Bills directed at utilities on producing renewable energy by 2025 could be very expensive to accomplish. Inter -State plans utilities will face have many difficult problems and costly to make progress.. Begich had the same prognosis on these issues and until health care is finished and off the table not much will move forward. The AML Investment Pool is in good shape, as is the AMLJIA Trust. I was surprised that Seward was not in the top 10 cities who have done a good job on claims control. 1 would have expected our wellness program to have brought our claims down. But we were not in the poor listing either!.so that was very good too. The evening awards banquet brought a pleasant surprise Marianna and I accepted the Just a darn good idea award from AML for our Long term care center. It was a great thank you to out Staff who made it happen. It was Great Fun to present it at the council Meeting. Mr White Keys put on a fine program to end the evening. AML is a good group for all of us who serve the public, I wish more of our council would attend. It is the best cross-section of Alaskan communities large and small to meet and exchange ideas with. I never have come away from them without the feeling I have benefited by it. This winds up the Nov period. Dec. looks to be busy too: DecAth Supt. Steve Atwater Kenai Peninsula Borough Schools, Meeting atASLC; Dec,8"' Chugach Electric Legislator meeting Anchorage; 12/10 REGA-GRETC; .Anchorage. Dec. 15" Japan Consul; Jan. 17" EDD meeting in Kenai; Old Mill -+ owners comin to Seward to meet with city on mutual help for new use of site. ALASKA MUNICIPAL LEAGUE FY 2010 PRIORITY STATEMENT (DRAFT) • REVENUE SHARING The Alaska Municipal League supports full funding of $60 million into the Revenue Sharing Fund; and the appropriation of the full $60 million from the Revenue Sharing Fund into the FY 2011 budget, to the communities, allowing for inflation, while yet realizing our, ultimate long-term goal is 6% of state natural resource revenues. • ENERGY The Alaska Municipal League supports the development of a comprehensive energy plan and implementation strategy to meet the energy needs of citizens and communities throughout the state, in the most efficient and cost effective manner. • TRANSPORTATION The Alaska Municipal League supports the development of a long-term sustainable transportation funding mechanism for Alaska, especially important in the looming bankruptcy of the U. S. Federal Transportation Trust Fund. • EDUCATION The Alaska Municipal League supports long-term forward funding of an adequate and equitable education foundation program, school debt reimbursement and construction; and, opposes any change in. the Alaska Foundation Formula that would increase the burden to local government. ALASKA CONFERENCE OF MAYORS RESOLUTION NO. ACOM2009 * A RESOLUTION OF THE ALASKA CONFERENCE OF MAYORS, REQUESTING THE STATE OF ALASKA TO AMEND THE ALASKA STATUTES IN ORDER TO EXPAND AND BROADEN THE REGULATION ON SMOKING IN PLACES OF EMPLOYMENT. WHEREAS, the Alaska Statutes (AS 18.35.300-342) regulates smoking in public facilities, including state and local government public places of employment, but that regulation does not include regulation of smoking in most private places of employment; and, WHEREAS, AS 18.35.300-342 only regulates smoking in private places of employment for entities such as health care, public transportation, grocery stores and food service establishments serving over 50 persons; and, WHEREAS, the protections in AS 18,35.300-342 do not protect the majority of private employees from the proven dangers of secondhand smoke; and, WHEREAS, protecting private employees from the proven dangers of secondhand smoke should be done on a statewide basis rather than by individual municipalities; and, WHEREAS, the severe disease -causing and deadly harms of exposure to secondhand smoke have been documented by the U.S. Surgeon General and numerous other recognized scientific authorities; and, WHEREAS, exposure to secondhand smoke is recognized as a leading cause of preventable death and the U.S. Surgeon General has determined exposure to secondhand smoke causes approximately 50,000 non-smoker deaths from lung cancer and heart disease each year in the United States; and, WHEREAS, it has been determined by the U.S. Surgeon General air ventilation systems and filtration/cleaning systems cannot effectively protect health from secondhand smoke and only completely smoke -free environments can protect health; and, WHEREAS, workers and members of the public exposed to secondhand smoke for only a short period of time can experience adverse cardiovascular effects and there is no safe level of exposure to the many carcinogens in secondhand smoke; and, I ALASKA CONFERENCE OF MAYORS RESOLUTION NO. ACOM2009- PAGE 2 OF 2 WHEREAS, the Cities of Unalaska, Juneau, and Anchorage have passed ordinances regulating smoking in private places of employment; and, WHEREAS, twenty-three (23) states, as well as Puerto Rico and the District of Columbia have enacted statewide smoking bans in places of employment; and, WHEREAS, the Alaska Conference of Mayors hereby finds it is in the best interest of the public health, safety and welfare for the State of Alaska to supplement its regulation of smoking in places of employment; and, WHEREAS, the Alaska Municipal League Policy Statement includes Chapter B, entitled "Health" and where inclusion of a subparagraph related to encouraging the Alaska Legislature to amend AS 18.35.300-342 would be appropriate. NOW THEREFORE, BE IT RESOLVED BY THE ALASKA CONFERENCE OF MAYORS, ALASKA, the Alaska Legislature should amend AS 18.35.300-342 to expand and broaden the current regulation of smoking in places of employment. PASSED AND APPROVED by the Alaska Conference of Mayors, on this day of November, 2009. Signed: Attest: Shirley Marquardt, President, Alaska Conference of Mayors Kathie Wasserman, Executive Director, Alaska Municipal League Submitted by: Kenai City Council Date Submitted: October 8, 2009 Contact Name: Carol L. Freas, City Clerk Contact Phone #: (907) 283-8231 Implementation Recommendation: Agencies to Contact: Funding Required: Staff/Board/Membership Action: This resolution was approved for submission to the Alaska Conference of Mayors membership by the Kenai City Council on October 7, 2009, O DRAFT RESOLUTION FOR THE ALASKA CONFERENCE OF MAYORS A Resolution in Support of the Budget Request for the Marine Advisory Program in the University of Alaska's DRAFT FY11 Operating Budget Request to the Governor Whereas, The University of Alaska's Marine Advisory Program (MAP) has served coastal Alaskans for over 40 years as the state's marine extension program; and Whereas, the Marine Advisory Program works with coastal communities on issues of critical importance, including economic development of fisheries, seafood processing, tourism, shellfish farming, and other businesses with the intent of keeping our communities economically strong; and Whereas, the Marine Advisory Program works with the youth and adults of our coastal communities on expanding educational opportunities, building workforce capacity and enhancing participation by local residents in the public process; and Whereas, in many coastal communities, Marine Advisory Program agents are the face of the University of Alaska and link residents to University resources and relevant research; and Whereas, Marine Advisory Program agents are located in 10 coastal communities around the state, but offices in Nome, Dillingham, Unalaska, Cordova, Petersburg and Kodiak do not have University funds to sustain them and could be closed due to lack of funding; Therefore, the Alaska Conference of Mayors encourages Governor Parnell to support the budget request for the MAP positions that is currently in the University of Alaska's FY11 Operating Budget; and Therefore, the Alaska Conference of Mayors encourages the Alaska State Legislature to support this funding request of $641,000 to sustain these six Marine Advisory Program offices on a permanent basis. 10 IL Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-134 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A SPECIAL CONTRACT WITH THE ALASKA RAILROAD FOR DISCOUNTED ELECTRIC RATES FOR THE ALASKA RAILROAD COAL FACILITY. WHEREAS, the Alaska Railroad Corporation operates a coal -loading facility in Seward year-round and provides full-time employment and financial influx to the City; and WHEREAS, job creation, job retention, and promotion of coal exportation and economic development are important to residents of Seward; and WHEREAS, economic stability of operation of the Alaska Railroad Coal Facility is necessary to avoid moving the facility to a different city; and WHEREAS, except while actually loading coal, the actual demand for electric power is lower than 750 kW; and WHEREAS, the Utilities Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 750kW or that have unique power requirements that cannot be reasonably addressed by the large general service tariff. and WHEREAS, the Utilities Manager has recommended that the City Council recognize the unique power requirements of the Railroad for operating and maintaining the coal delivery system. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is authorized to enter into a Special Contract for Electric Rates ("Contract") with the Alaska Railroad Corporation for the Coal Facility in substantially the form presented at this meeting. Section 2. The Recitals stated above are incorporated herein by reference as findings of the City Council. We further find, in accordance with the City of Seward Electric Tariff and for the reasons stated above, that the Alaska Railroad's Coal Facility has unique power requirements that cannot be reasonably addressed by the large general service tariff. Section 3. This resolution shall be effective immediately. The contract shall be effective January 1, 2010. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of December 2009. 13 Council Agenda Statement Meeting Date: December 14, 2009 To: City Council Through: Phillip Oates, City Manager From: John Foutz, Electric Utility Manager Agenda Item: Special Contract with Alaska Railroad for Discounted Electrical Rates for the Coal Facility BACKGROUND & JUSTIFICATION: The electric tariff, as of January 1, 2010, will no longer have an industrial rate. There are three customers that are being charged the industrial rate when the tariff changes will go into effect. Asking these customers to increase from the industrial rate to the large general service rate in one year would be financially damaging for these businesses. The electric tariff allows, "special contracts to be negotiated by the utilities manager with a customer that have demand in excess of 750 kilowatts (kW) or that have unique power requirements that cannot be reasonably addressed by the large general service tariff." In the case of the Alaska Railroad these unique requirements include year round employment for Seward residents, economic influx for the Seward area, seasonal demand in excess of 750 kW, and the importance of keeping the Alaska Railroad in the community of Seward. Alaska Railroad claims that if they were to have to pay the large general service rate they could not maintain the facility profitably and would be forced to close the facility. if the facility were to close the impact would influence the community by higher unemployment rates and loss of revenues to the City of Seward and the surrounding Seward area. The Special contract applies only to the Coal Facility, and not other railroad property. INTENT: To sign a special contract with the Alaska Railroad for a special electric rate for the Coal Facility for two years, giving them time to become financially stable. 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 or Other Plans or Policies: Yes (List Below) Electric Rates & Charges: Page 2-2: 3. Special Contracts: Special contracts may be negotiated by the Utilities Manager with customer that have a demand in excess of 750 kW or that have a unique power requirements that cannot be reasonably addressed by the large general service tariff. Special contracts may include, but are not limited to, provisions for instantaneous demand charges, time of service, interruptible power, minimum and maximum demand, adjustment of demand level, ownership and payment of new distribution facilities, termination charges and power factor. Special contracts must be approved by the City Council. 14 FISCAL NOTE: In 2009 the Alaska Railroad Coal Facility was charged a rate of $0.00574 per Kilowatt-hour for an energy charge and $10.25 per Kilowatt for a demand charge. After negotiations with representatives for the Alaska Railroad an agreement was reached for rates higher than previously yet financially reasonable. The suggested rate for the Alaska Railroad Coal Facility in the year 2010 is $0.020 per kilowatt-hour for the energy charge and $11.19 per kilowatt for the demand charge. In the year 2011 the energy rate will increase to $0.040 per kilowatt-hour and the demand charge will remain the same. Any other charges or rates that may be applicable will follow the Large General Service rate class. The following table shows the 2009 rate as a basis per month, followed by the approximate amounts the Alaska Railroad Coal Facility will pay under the Large General Service or by Special Contract in 2010 and 2011. Also included is the estimated percentage increase over the 2009 rate. Signing the Alaska Railroad Coal Facility to a special contract will increase the electric department's revenues by approximately 15.71% in 2010 and 28.44% in 2011. The approximate dollar amount per month in 2010 is $2,545.32 and $4,609.32 in 2011. The yearly estimated increase is $30,543.84 for 2010 and $55,311.84 for 2011. If the Alaska Railroad Coal Facility pays the Large General Service rate the percentage increase would be 56.73% and an increase to annual revenue of $110,313.84. W �EWE .... Current Special Special 2009 Large General Service 2010 Contract 2010 Contract 2011 Average Monthly Bill Electric Operations & Infrastructure Fee $30.00 $31.50 $31.50 $31.50 Energy $0.0050 charge (rate) 3 $0.07413 $0.0200 $0.0400 Avg. cult kWh 103200 61920 103200 103200 2,064.0 4,128.0 518.58 1 4,590.13 0 0 $0.04263 41280 1,759.77 Energy charge 518.58 6,349.90 2,064.00 4,128.00 Fuel cost (rate = $0.057298 @ 9/09) 5,913.15 5,913.15 5,913.15 5,913.15 Demand Charge (per $10.15 $13.65 $11.19 $11.19 15 kW) Avg. Cust kW 960 960 960 960 13,104.0 10,742.4 1 ..r .4 9,744.00 0 0 0 Total 25,398.5 18,751.0 20,815.0 Electric 16,205.73 5 5 5 Increase per $9,192.8 $2,545.3 $4,609.3 month: 2 2 2 Percentage overall increase: 56.73% 15.71% 28.44% Approved by Finance Department: J-L &:: (� bhv� v Z) ATTORNEY REVIEW: Yes X No RECOMMENDATION: The City Council pass resolution 2009- �,�giving the city manager authorization to enter into a special contract with the Alaska Railroad for special electric rates for the coal facility. N RAILROAD 0 Current Special Special 2009 Large General Service 2010 Contract 2010 Contract 2011 Average Monthly Bill Electric Operations & Infrastructure Fee $30.00 $31.50 $31.50 $31.50 Energy charge (rate) $0.00503 $0.07413 $0.0200 $0.0400 Avg. cust kWh 103200 61920 103200 103200 518.58 4,590.13 2,064.00 4,128.00 $0.04263 41280 1,759.77 Energy charge 518.58 Fuel cost (rate = $0.057298 @ 9/09) 5,913.15 Demand Charge (per kW) $10.15 Avg. Cust kW 960 9,744.00 Total Electric 16,205.73 Increase per month: Percentage overall increase: $13.65 960 6,349.90 j 2,064.00 � 4,128.00 913.15 � 5,913.15 1 5,913.15 13,104.00 25,398.55 $9,192.82 56.73% $11.19 960 10,742.40 18,751.05 $2,545.32 15.71 % $11.19 960 10,742.40 20,815.05 $4,609.32 28.44% SPECIAL CONTRACT FOR ELECTRIC RATES This Special Contract for Electric Rates ("Contract") is between the City of Seward ("City") whose address is P.O. Box 167, Seward, Alaska 99664 and the Alaska Railroad Corporation whose address is P.O. Box 107500, Anchorage, Alaska 99510. WHEREAS, The Alaska Railroad Corporation operates a coal facility year-round and provides full-time employment and financial influx into the City; and WHEREAS, job creation, job retention, and promotion of coal exportation and economic development are important to residents of Seward; and WHEREAS, economic stability of operation of the Alaska Railroad Coal Facility is necessary to avoid moving the facility to a different city; and WHEREAS, except when actually unloading coal from trains and loading coal to ships, the actual demand for electric power is lower than 750 kW; and WHEREAS, the Utilities Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 7501kW or that have unique power requirements that cannot be reasonably addressed by the large general service tariff; and WHEREAS, the Utilities Manager has recommended that the City Council recognize the unique power requirements of the Alaska Railroad Coal Facility for operating and maintaining the coal delivery system. The parties hereby agree as follows: Section 1. Effective Date and Term. This Contract shall become effective January 1, 2010, upon approval by the City Council for the City and execution by each party. This Contract shall remain in effect until December 31, 2011. Upon termination or expiration, The Alaska Railroad shall resume paying electric service rates for the Coal Facility as a Large General Class of Service, as described in the City's Electric Tariff, without further action by the parties. Section 2. Rate Adiustment. Throughout the term of this Contract the Alaska Railroad shall be entitled to electrical rates and charges for the Coal Facility as described below: Rates stated in the City of Seward Electric Tariff applicable to Large General Service shall apply except as follows: Energy Charge: $0.020 per kilowatt hour (kWh). Effective January 1, 2011 the Energy charge shall increase to the amount of $0.040 per kWh. Demand Charge: $11.13 per kilowatt (kW). The minimum Monthly Billing Demand shall be 750 kW. Rate changes established by Chugach Electric Association (CEA) through the Regulatory Commission of Alaska (RCA) shall be passed directly through to the Alaska Railroad Corporation without any markup from the City. Section 3. Requirements. The Alaska Railroad Corporation represents that it currently faces financial difficulties and is looking for ways to reduce its costs while continuing to operate and maintain the Coal Facility to a standard that is comparable to other well -operated and well -maintained industrial facilities throughout the United States. It is expressly agreed and understood that the rate adjustments described in Section 2 of this agreement shall apply only to the Coal Facility and shall not apply to any other properties or operations of the Alaska Railroad. Electric service is subject to interruption by the City when peak demand is in excess of what the City can generate. Section 4. Assignment. This Contract shall not be assigned. Section 5. Amendments. Any amendments, including extension of term, rate adjustments, or other provisions of this Contract, shall be agreed to in writing and signed by both parties following approval by the Seward City Council. Executed this day of , 2009. ALAS A RAILROAD C RPORATION By. Ja es Kubitz Its.V. V.P. Real Estate & Facilities CITY OF SEWARD Recommended by: Phillip Oates City Manager ATTEST: John Foutz, Utility Manager 19 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-135 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A SPECIAL CONTRACT WITH ICICLE SEAFOODS, INC. FOR DISCOUNTED ELECTRIC RATES FOR SEWARD FISHERIES. WHEREAS, Icicle Seafoods operates Seward Fisheries year-round and provides full-time employment in the City; and, WHEREAS, job creation, job retention, and promotion of fishing and fish processing are important to residents and the City of Seward; and, WHEREAS, economic stability of operations of Seward Fisheries is necessary to the region and residents of Seward; and, WHEREAS, except during a peak season in the summer, the actual demand for electric power is lower than 750 kW; and, WHEREAS, the Utilities Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 750kW or that have unique power requirements that cannot be reasonably addressed by the Large General service tariff; and, WHEREAS, the Utilities Manager has recommended that the City Council recognize the unique power requirements of Seward Fisheries. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is authorized to enter into a Special Contract for Electric Rates ("Contract") in substantially the form presented at this meeting. Section 2. The Recitals stated above are incorporated herein by reference as findings of the City Council. We find, in accordance with the City of Seward Electric Tariffs and for the reasons stated above that Seward Fisheries has unique power requirements that cannot be reasonable addressed by the large general service tariff. Section 3. This resolution shall be effective immediately. The contract shall be effective January 1, 2010. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of December, 2009. 20 Council Agenda Statement Meeting Date: December 14, 2009 To: City Council Through: Phillip Oates, City Manager�.�2 From: John Foutz, Electric Utility Manager Agenda Item: Special Contract with Icicle Seafoods, Inc. for Discounted Electrical Rates for Seward Fisheries BACKGROUND & JUSTIFICATION: The electric tariff, as of January 1, 2010, will no longer have an industrial rate. There are three customers that are at the industrial rate when the tariff changes will go into effect. Asking these customers to increase from the industrial rate to the large general service rate in one year would be financially damaging for these businesses. The electric tariff allows, "special contracts to be negotiated by the utilities manager with a customer that have demand in excess of 750 kilowatts (kW) or that have unique power requirements that cannot be reasonably addressed by the large general service tariff." Seward Fisheries' unique requirements include; year round employment for Seward residents, economic influx to the Seward area, seasonal demand in excess of 750 kW, and the importance of retaining a business in the community. Seward Fisheries claims that if they pay the large `general service' rate they will not be able to maintain their facility profitably and would be forced to close it. If that were to happen the impact on Seward would be negative with the loss of jobs, tax revenue and revenue to the city owned utilities. INTENT: To sign a special contract with Icicle Seafoods, Inc. for Seward Fisheries for a special electric rate lasting two years. 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 or Other Plans or Policies: Yes X (List Below) No Electric Rates & CharLyes: Paste 2-2: 3 Special Contracts: Special contracts may be negotiated by the Utilities Manager with customers that have a demand in excess of 750 kW or that have a unique power requirements that cannot be reasonably addressed by the large general service tariff. Special contracts may include, but are not limited to, provisions for instantaneous demand charges, time of service, interruptible power, minimum and maximum demand, adjustment of demand level, ownership and payment of new distribution facilities, termination charges and power factor. Special contracts must be approved by the City Council. FISCAL NOTE: In 2009 Seward Fisheries was charged a rate of $0.00574 per Kilowatt-hour for an energy charge and $10.25 per Kilowatt for a demand charge. The proposed rates are based on the previous industrial rate schedule in the 2009 tariff. This rate was calculated by charging 25% above our wholesale cost from Chugach Electric. The city council added a five percent increase effective January 1, 2010. 21 The suggested rate in energy and demand for Seward Fisheries is $0.0081/kWh and $11.69/kW respectively. Any other charges or rates that may be applicable will follow the Large General Service rate class. The following table shows the 2009 rate as a basis per month, followed by the approximate amounts Seward Fisheries will pay in 2010 under the Large General Service or by Special Contract. Also included is the percentage over the 2009 rate. Signing Icicle Seafoods to a special contract will increase the electric department's revenues by approximately 8.18% and an approximate dollar amount of $2,154.59 per month and $25,855.08 per year. If Icicle Seafoods pays the Large General Service rate the percentage increase would be 72.84% and an increase to annual revenue of $230,307.43. ICICLE SEAFOODS Current Special 2009 Large General Service 2010 Contract Average Monthly Bill Electric Operations & Infrastructure Fee $30.00 Energy charge (rate) $0.00503 Avg. cust kWh 288900 1,451.72 $31.50 $0.07413 173340 12,849.69 $0 "^ql 2 ) 2,3� $0.04263 115560 4,926.32 Energy charge 1,451.72 17,776.02 Fuel Charge (rate = $0.057298 @ 9/09) 16,553.39 16,553.39 Demand Charge (per kW) $10.15 $13.65 $11.69 Avg. Cust kW 819 819 819 8,312.85 11,179.35 Total Electric per month 26,347.96 I 45,540.26 Increase per month: $19,192.29 _Percentage overall increase: 72.84% Approved by Finance Departmfent: °�' 2 ATTORNEY REVIEW: Yes X No RECOMMENDATION: The City Council pass resolution 2009- 135 , giving the City Manager authorization to enter into a special contract with Icicle Seafoods for special electric rates for the Seward Fisheries location. 22 � � f SEAFOODS Current Special 2009 Large General Service 2010 Contract 2010 Average Monthly Bill Electric Operations & Infrastructure Fee $30.00 $31.50 $31.50 Energy charge (rate) $0.00503 $0.07413 $0.0081 Avg. cult kWh 288900 173340 288900 1,451.72 12,849.69 2,343.56 $0.04263 115560 4,926.32 Energy charge 1,451.72 17,776.02 2,343.56 N Fuel Charge (rate = $0.057298 @ 9/09) 16,553.39 16,553.39 16,553.39 Demand Charge (per M $10.15 $13.65 $11.69 Avg. Cust kW 819 819 819 8,312.85 11,179.35 9,574.11 Total Electric per month 26,347.96 45,540.26 28,502.56 Increase per month: $19,192.29 $2,154.59 Percentage overall increase: 72.84% 8.18% SPECIAL CONTRACT FOR ELECTRIC RATES This Special Contract for Electric Rates ("Contract") is between the City of Seward ("City") whose address is P.O. Box 167, Seward, Alaska 99664 and Icicle Seafoods whose address is 4019 21stAve. W., Seattle, WA 98199. WHEREAS, Icicle Seafoods operates Seward Fisheries year-round and provides full-time employment in the City; and WHEREAS, job creation, job retention, and promotion of fishing and fish processing are important to residents of Seward; and WHEREAS, economic stability of operation of Seward Fisheries is necessary to the region and residents of Seward; and WHEREAS, except during a peak season in the summer, the actual demand for electric power is lower than 750 kW; and WHEREAS, the Utility Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 750kW or that have unique power requirements that cannot be reasonably addressed by the Large General service tariff; and WHEREAS, the Utility Manager has recommended that the City Council recognize the unique power requirements of Seward Fisheries. The parties hereby agree as follows: Section 1. Effective Date and Term. This Contract shall become effective January 1, 2010, upon approval by the City Council for the City and execution by each party. This Contract shall remain in effect until December 31, 2011. Upon expiration or termination, Icicle Seafoods shall resume a Large General Class of Service for Seward Fisheries, as described in the City's tariff, without further action by the parties. Section 2. Rate Adjustment. Throughout the term of this Contract Icicle Seafoods shall be entitled to electrical rates and charges as described below: Rates stated in the City of Seward Electric Tariff applicable to Large General Service shall apply except as follows: Energy Charge: $0,0081 per kilowatt hour (kWh). Demand Charge: $11.69 per kilowatt (kW) The minimum Monthly Billing Demand shall be 750 kW. 24 Monthly Customer Charge: $31.50 Rate changes established by Chugach Electric Association (CEA) through the Regulatory Commission of Alaska (RCA) shall be passed directly through to Icicle Seafoods without any markup from the City. Section 3. Requirements. Icicle Seafoods represents that it currently faces financial difficulties and is looking for ways to reduce its costs while continuing to operate and maintain a unique and vital facility to the residents of Seward. It is expressly agreed and understood that the rate adjustments described in Section 2 of this agreement shall apply only to Seward Fisheries in Seward, Alaska and shall not apply to any other properties or operations of Icicle Seafoods, Section 4. Assignment. This Contract shall not be assigned. Section 5. Amendments. Any amendments, including extension of term, rate adjustments, or other provisions of this Contract, shall be agreed to in writing and signed by both parties following approval by the Seward City Council. Executed this ICICLE SEAFOODS ( day of �' c 2009. y", J, R �"C� I - I I I �_ - 1: � By: Its: President CITY OF SEWARD Phillip Oates City Manager ATTEST: Jean Lewis, CIVIC City Clerk Recommended by: John Foutz, Utility Manager 25 12/09/2009 16:10 IFAX 3rd-Floor-Fax@IcicleSeafoods.com , Yona Russell Z001/001 December 9, 2009 City of Seward City Manager P.O. Box 167 Seward, AK 99664 Dear Mr. Oates: As Plant Manager of Icicle Seafoods, Inc., Seward Fisheries Facility, Charles McEldowney has been granted the authority to enter into a special rate agreement with the City of Seward for services such as electric, water, sewer and associated fees provided by the City of Seward. Regards, ICICLE SEAFOODS, INC. -John oodruff Vice President, Production ICICLE SEAFOODS, INC. 4019 — 21 st Avenue West • Seattle, WA 98199 P.O. Box 79003 • Seattle, WA 98119 • Tel: 206-282-0988 • Fax: 206-282-7222 N Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-136 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A SPECIAL CONTRACT WITH THE SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE (SAAMS) FOR ADJUSTED ELECTRIC RATES. WHEREAS, SAAMS and the City are parties to the Amended and Restated Agreement for Lease Of Tract 2a, Waterfront Tracts And Adjacent Tidelands, And The Lease, Operation And Maintenance Of The Alaska SeaLife Center; and WHEREAS, SAAMS operates the SeaLife Center year-round and provides full-time employment in the City; and WHEREAS, job creation, job retention, and promotion of marine research and economic development are important to residents of Seward; and WHEREAS, economic stability of operation of the SeaLife Center is necessary to avoid requiring the City to assume operation of the facility; and WHEREAS, after starting on the industrial rate, SAAMS actual demand for electric power for the SeaLife Center site is not lower than 750 kW; and WHEREAS, the Utilities Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 750kW or that have unique power requirements that cannot be reasonably addressed by the Large General service tariff; and WHEREAS, the Utilities Manager has recommended that the City Council recognize the unique power requirements of SAAMS for operating and maintaining the SeaLife Center for the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is authorized to enter into a Special Contract for Electric Rates ("Contract") in substantially the form presented at this meeting. Section 2. The Recitals stated above are incorporated herein by reference as findings of the City Council. We find, in accordance with the City of Seward Electric Tariffs and for the reasons stated above that the SeaLife Center has unique power requirements that cannot be reasonable addressed by �•• the large general service tariff. 27 CITY OF SEWARD, ALASKA RESOLUTION 2009-136 Page 2 of 2 Section 3. This resolution shall be effective immediately. The contract shall be effective January 1, 2010. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of December 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis City Clerk (City Seal) Council Agenda Statement i" Meeting Date: December 14, 2009 To: City Council Through: Phillip Oates, City Manager5- From: John Foutz, Electric Utility Manager / Agenda Item: Special Contract with Seward Association for the Advancement of Marine Science for Discounted Electrical Rates for the SeaLife Center BACKGROUND & JUSTIFICATION: As of January 1, 2010, the City of Seward electrical tariff will no longer have an `Industrial Rate.' For the three businesses that are currently being charged the Industrial Rate, changing to the higher `General Service' rate in a one year time period would be financially damaging. The electric tariff allows, "Special Contracts to be negotiated by the Utilities Manager with a customer that have demand in excess of 750 kilowatts (kW) or that have unique power requirements that cannot be reasonably addressed by the large general service tariff." In the case of Seward Association of the Advancement of Marine Science (SAAMS) these unique power requirements include a monthly demand in excess of 750 kW, full-time employment for Seward residents, economic stability for Seward, and the promotion of essential marine research. �•- SAAMS financial stability relies on an electric rate which is comparably less than the larger General Service rate. SAAMS claims that if they pay the higher rate they could not maintain the SeaLife Center profitably, and may be forced to close. If the facility closes the impact would be great and would include higher unemployment rates, loss of revenues to the Seward area, and the City of Seward would be forced to take over the facility. The special contract applies only to the SeaLife Center site, and not to any other operations of SAAMS. INTENT: To sign a special contract with SAAMS for a special electric rate for two years, giving them time to become more financially stable. 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 or Other Plans or Policies: Yes (List Below) Electric Rates & Charges: NOP. 2-2. 3 Special Contracts Special contracts maybe negotiated by the Utilities Manager with customer that have a demand in excess of 750 kW or that have a unique power requirements that cannot be reasonably addressed by the large general service tariff. Special contracts may include, but are not limited to, provisions for instantaneous demand charges, time of service, interruptible power, minimum and maximum demand, adjustment of demand level, ownership and payment of new distribution facilities, termination charges and power factor. Special contracts must be approved by the City Council. FISCAL NOTE: 29 In April 2009 SAAMS started being charged a rate of $0.00574 per Kilowatt-hour for an energy charge and $10.25 per Kilowatt for a demand charge. The proposed rates are based on the previous industrial rate schedule in the 2009 tariff. This rate was calculated by charging 25% above our wholesale cost from Chugach Electric. The city council added a five percent increase effective January 1, 2010. The suggested rate in energy and demand for SAAMS is $0.0081 /kWh and $11.69/kW respectively. Any other charges or rates that may be applicable will follow the Large General Service rate class. The following table shows the 2009 rate as a basis per month, followed by the approximate amounts SAAMS will pay in 2010 under the Large General Service or by Special Contract. Also included is the percentage over the 2009 rate. Signing SAAMS to a special contract will increase the electric department's revenues by approximately 7.68% and an approximate dollar amount of $2,728.19 per month and $32,738.28 per year. If the Sealife Center pays the Large General Service rate the percentage increase would be 75.62% and an increase to annual revenue of $322,524.60. Sealife Center Current Sealife Special 2009 Large General Service 2010 Contract Average Monthly Bill Electric Operations & Infrastructure Fee $30.00 $31.50 Energy charge (rate) S0.00503 $0.07413 $0.0081 Avg. cust kWh 417840 250704 417840 2,099.65 18,584.69 3,389.52 $0.04263 167136 7,125.01 Energy charge 2,099.65 25,709.70 3 Fuel Charge (rate = $0.057298 @ 9/09) 23,941.40 23,941.40 23 Demand Charge (per kW) $10.15 $13.65 $11.69 Avg. Cust kW 933 933 933 9,469.95 12,735.45 10 Average Electric per month 35,540.99 62,418.04 Increase per month: $26,877.05 Percentage overall increase: 75.62% Approved by Finance Department: --,�?f �e� n�`�� ATTORNEY REVIEW: Yes X N- 30 RECOMMENDATION• 1` The City Council pass resolution 2009- �� giving the City Manager authorization to enter into a special contract with Seward Association for the Advancement of Marine Science for special electric rates for the SeaLife Center facility. 31 ca N Electric Operations & Infrastructure Fee Energy charge (rate) $0.00503 Avg. cult kWh 417840 2,099.65 � n Seaiife D `7 - /,3& Center c Current Sealife Sealife Special 2009 Large General Service 2010 Contract 2010 Average Monthly Bill $30.00 $31.50 $31.50 $0.07413 $0.0081 250704 417840 18,584.69 3,389.52 $0.04263 167136 7.125.01 Energy charge 2,099.65 25,709.70 3,389.52 Fuel Charge (rate = $0.057298 @ 9/09) 23,941.40 23,941.40 23,941.40 Demand Charge (per kW) $10.15 $13.65 $11.69 Avg. Cust kW 933 933 933 9,469.95 12,735.45 10,906.77 Average Electric per month 35,540.99 62,418.04 38,269.18 Increase per month: $26,877.05 $2,728.19 Percentage overall increase: 75.62% 7.68% SPECIAL CONTRACT FOR ELECTRIC RATES This Special Contract for Electric Rates ("Contract") is between the City of Seward ("City") whose address is P.O. Box 167, Seward, Alaska 99664 and the Seward Association for the Advancement of Marine Science ("SAAMS") whose address is P.O. Box 1329, Seward, Alaska 99664. WHEREAS, SAAMS and the City are parties to the Amended and Restated Agreement for Lease Of Tract 2a, Waterfront Tracts And Adjacent Tidelands, And The Lease, Operation And Maintenance Of The Alaska SeaLife Center; and WHEREAS, SAAMS operates the Alaska SeaLife Center year-round and provides full-time employment in the City; and WHEREAS, job creation, job retention, and promotion of marine research and economic development are important to residents of Seward; and WHEREAS, economic stability of operation of the Alaska SeaLife Center is necessary to avoid requiring the City to assume operation of the facility; and WHEREAS, after starting the industrial rate, the actual demand for electric power is not lower than 750 kW; and WHEREAS, the Utilities Manager is authorized to negotiate a special contract, subject to approval by the City Council, for customers who have a demand in excess of 750kW or that have unique power requirements that cannot be reasonably addressed by the Large General service tariff; and WHEREAS, the Utilities Manager has recommended that the City Council recognize the unique power requirements of SAAMS for operating and maintaining the Alaska SeaLife Center for the City. The parties hereby agree as follows: Section 1. Effective Date and Term. This Contract shall become effective January 1, 2010, upon approval by the City Council for the City and execution by each party. This Contract shall remain in effect until December 31, 2011. Upon termination or expiration SAAMS shall resume a large general Class of Service, as described in the City's tariff, without further action by the parties. Section 2. Rate Adjustment. Throughout the term of this Contract SAAMS shall be entitled to electrical rates and charges as described below: 33 Rates stated in the City of Seward Electric Tariff applicable to Large General Service shall apply except as follows: Energy Charge: $0.0081 per kilowatt hour (kWh). Demand Charge:$11.69 per kilowatt (kW). The minimum Monthly Billing Demand shall be 750 kW. Monthly Customer Charge: $31.50 Rate changes established by Chugach Electric Association (CEA) through the Regulatory Commission of Alaska (RCA) shall be passed directly through to SAAMS without any markup from the City. Section 3. Requirements. SAAMS represents that it currently faces financial difficulties and is looking for ways to reduce its costs while continuing to operate and maintain the Alaska SeaLife Center to a standard that is comparable to other well -operated and well -maintained marine research facilities throughout the United States. It is expressly agreed and understood that the rate adjustments described in Section 2 of this agreement shall apply only to the Alaska SeaLife Center and shall not apply to any other properties or operations of SAAMS. Electric service is subject to interruption by the City when peak demand is in excess of what the City can generate. Section 4. Assignment. This Contract shall not be assigned. Section 5. Amendments. Any amendments, including extension of term, rate adjustments, or other provisions of this Contract, shall be agreed to in writing and signed by both parties following approval by the Seward City Council. Executed this day of 2009. SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE Ian M. Dutton, Ph.D. President and CEO CITY OF SEWARD Phillip Oates City Manager Recommended by: John Foutz, Utility Manager 34 ATTEST: Jean Lewis, CMC City Clerk 35 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-137 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A "SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS, AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER" WITH THE SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE WHEREAS, in 2006 the City of Seward (`City") and the Seward Association for the Advancement of Marine Science ("SAAMS") entered into an Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands, and the Lease, Operation and Maintenance of the Alaska SeaLife Center (the "SAAMS AGREEMENT"); and WHEREAS, the City and the State of Alaska Department of Fish and Game are parties to a Cooperative Agreement for the Construction, Operation, and Maintenance of Research Infrastructure Improvements at the Alaska SeaLife Center, in Seward, Alaska executed in April 1995, as amended (the "Cooperative Agreement"); and WHEREAS, the City and SAAMS intended to transfer all of the obligations of the City under the Cooperative Agreement and the EVOS Trustee Council Resolution adopted November 2, 1994 to SAAMS; and WHEREAS; the City has an obligation under the Cooperative Agreement to own, operate, and maintain the Alaska SeaLife Center for the practical life of the facility, and the practical life of the facility ends upon the occurrence of both of the following: (i) the City makes a reasonable determination, as verified by an independent financial consultant selected or approved by ADF&G, that the facility is not capable of generating revenues sufficient to cover the operating expenses and debt service of the facility, and (ii) while being operated in accordance with any recommendation from the independent financial consultant and in accordance with terms and conditions of the agreement during the two-year period following the City's determination, the facility does not generate revenues sufficient to cover the operating expenses and debt service of the facility, plus fund sufficient reserves for repairs and replacements in the facility; and WHEREAS, if the City elects not to operate the facility, either because it has reached the end of its useful life or for any other reason, the City is obligated to continue operating the SeaLife Center for one year while ADF&G determines whether to exercise its option to enter assume operation of the SeaLife Center; and 36 WHEREAS, with the understanding that SAAMS would continue to operate the SeaLife Center during the one-year period in which ADF&G may exercise its option, and based on representations by SAAMS that the amount needed to mothball the SeaLife Center for one (1) year was $700,000 for fiscal year 2006, the City and SAAMS agreed in the SAAMS AGREEMENT that SAAMS would maintain a Termination Fund in an amount of $700,000 for fiscal year ending September 30, 2006 and increasing 3% each year; and WHEREAS, in fall 2008, SAAMS experienced a temporary cash flow shortage and asked for a temporary reduction in the amount to be held in the Termination Fund; and WHEREAS, the City supports the mission of SAAMS and was willing to take on, for a limited period, the responsibility of funding the majority of the Termination Fund; and WHEREAS, at that time, SAAMS explained the need for the proposed changes and its plan to eliminate the cash flow shortage and to fully fund the Termination Fund by September 30, 2009; and WHEREAS, to assist SAAMS in managing its operating cash flow during the fall and winter months, a temporary amendment to the SAAMS AGREEMENT was approved in January 2009 by the City which granted the option to SAAMS to access up to a total of $500,000 from the Termination Fund from March 1, 2009 until September 30, 2009 and replenish the fund to the required level on that date; and WHEREAS, this summer and fall, SAAMS entered in a renegotiation of the SAAMS AGREEMENT with the City with four principal objectives which have been achieved in the new SAAMS AGREEMENT: 1) Eliminate the Tidelands lease and the accompanying $9,000 annual lease payment to the City; 2) Reduce the Termination Fund requirement; and 3) Eliminate the annual maintenance plan and remove certain language regarding facility maintenance; 4) Shift the burden of operations and maintenance to the City for the one year period required by the Cooperative Agreement following a decision to no longer operate the SeaLife Center, The City is obligated to operate the SeaLife Center to the standard of other well' maintained and well' operated marine research facilities throughout the United States. The SeaLife Center's obligation is limited to that of a mothballed facility; and WHEREAS, the City and SAAMS negotiated the following amendments: 1) Inserted "climate change and conservation" as use of the Improvements (Section 3.6.1); 2) Modified budget reporting requirements (Section 3.11); 3) Inserted the Bank Financial Statements requirement included in the January 2009 amendment (Section 3.11.3; 4) Changed the construction bonding requirement to projects where bonding is required by State Law or for construction requiring the City's approval under the Lease (Section 4.2.2); 5) Changed the Notice of Completion requirement to work exceeding $100,000 rather than for all construction regardless of price (Section 4.3.3); 6) Revised the definition of "major repairs and replacements" to mean a discrete repair expenditure greater than $50,000, or any repair or maintenance project that is outside the scope of the annual operating budget or annual maintenance plan. The current Lease restricts the use of the repair and replacement fund to projects costing more than $50,000 37 or outside the scope of the annual maintenance plan. The annual maintenance plan is deleted (Section 5.5); and 7) Changed SAAMS' obligation to operate the Center for one-year following SAAMS' election not to operate from the standards required of the City in the Cooperative Agreement to a standard of "closed to public access and to any research activity (Section 5.6); and WHEREAS, in addition to removing the ticfelands area from the SAAMS AGREEMENT which will reduce City revenues approximately $9K annually, the new Agreement allows SAAMS to access up to $500K of the Termination Fund as necessary for cash flow as long as the Termination Fund is fully restored on one day each year (September 30th); and WHEREAS, to the extent that SAAMS fails to maintain the Termination Fund and Renewal and Replacement Fund as required in the agreement, and in the event circumstances require the City to operate the Center until it is turned over to ADF&G, the City will be required to pay whatever costs are necessary to cover the costs of termination and to provide for major maintenance and repairs; and WHEREAS, the City Council has determined that it is in the public interest to enter into an amendment to the SAAMS AGREEMENT because of the public benefits provided by SAAMS to the Seward community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. For the reasons stated in the above recitals, which are incorporated herein by reference, it is in the public interest to enter into a "Second Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands and the Lease, Operation and Maintenance of the Alaska SeaLife Center". Section 2. The City Manager is hereby authorized to enter into a second amendment in substantial form as presented at this meeting and incorporated herein by reference. Section 3. This resolution shall take effect thirty (30) days after its adoption and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of December, 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) 39 Council Agenda Statement Meeting Date: Monday, December 14, 2009 To: City Council From: City Manager Phillip Oates, - Agenda Item: Resolution 2009- t3lAuthorizing the City Manager to enter into a "Second Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands and the Lease, Operation and Maintenance of the Alaska SeaLife Center" BACKGROUND & JUSTIFICATION: In 2006, the City of Seward ("City") and the Seward Association for the Advancement of Marine Science ("SAAMS") entered into an Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands, and the Lease, Operation and Maintenance ofthe Alaska SeaLife Center (the "SAAMS AGREEMENT"). The City and the State of Alaska Department of Fish and Game are parties to a Cooperative Agreement for the Construction, Operation, and Maintenance of Research Infrastructure Improvements at the Alaska SeaLife Center, in Seward, Alaska executed in April 1995, as amended (the "Cooperative Agreement"). The City and SAAMS intended to transfer all of the obligations of the City under the Cooperative Agreement and the EVOS Trustee Council Resolution adopted November 2, 1994 to SAAMS. The Cityhas an obligation under the Cooperative Agreement to own, operate, and maintain the Alaska SeaLife Center for the practical life of the facility, and the practical life of the facility ends upon the occurrence of both of the following: (i) The City makes a reasonable determination, as verified by an independent financial consultant selected or approved by ADF&G, that the facility is not capable of generating revenues sufficient to cover the operating expenses and debt service of the facility; and (ii) While being operated in accordance with any recommendation from the independent financial consultant and in accordance with terms and conditions of the agreement during the two-year period following the City's determination, the facility does not generate revenues sufficient to cover the operating expenses and debt service of the facility, plus fund sufficient reserves for repairs and replacements in the facility. If the City elects not to operate the facility, either because it has reached the end of its useful life or for any other reason, the City is obligated to continue operating the SeaLife Center for one year while ADF&G determines whether to exercise its option to assume operations ofthe SeaLife Center. With the understanding that SAAMS would continue to operate the SeaLife Center during the one-year period in which ADF&G may exercise its option, and based on representations by SAAMS that the amount needed to mothball the SeaLife Center for one (1) year was $700,000 for fiscalyear 2006, the City and SAAMS agreed in the SAAMS AGREEMENT that SAAMS would maintain aTermination Fund in an amount of $700,000 for fiscal year ending September 30, 2006 and increasing 3% each year. In the fall of 2008, SAAMS experienced a temporary cash flow shortage and asked for a temporary reduction in the amount to be held in the Termination Fund. The City supports the mission of SAAMS and was willing to take on, for a limited period of time, the responsibility of funding the majority of the Termination Fund. At that time, SAAMS explained the need for the proposed changes and its plan to eliminate the cash flow shortage and to fully fund the Termination Fund by September 30, 2009. To assist SAAMS in managing its operating cash flow during the fall and winter months, a temporary amendment to the SAAMS AGREEMENT was approved in January 2009 by the City which granted the option to SAAMS to access up to a total of $500,000 from the Termination Fund from March 1, 2009 until September 30, 2009 and replenish the fund to the required level on that date. This summer and fall, SAAMS entered into a renegotiation of the SAAMS AGREEMENT with the City with four principal objectives which have been achieved in the new SAAMS AGREEMENT(att ached): 1) Eliminate the Tidelands lease and the accompanying $9,000 annual lease payment to the City; 2) Reduce the Termination Fund requirement; 3) Eliminate the annual maintenance plan and remove certain language regarding facility maintenance; and 4) Shift the burden of operations and maintenance to the City for the one year period required by the Cooperative Agreement following a decision to no longer operate the SeaLife Center. The City is obligated to operate the SeaLife Center to the standard of other well maintained and well operated marine research facilities throughout the United States. The SeaLife Center's obligation is limited to that of a mothballed facility. The City and SAAMS negotiated the following amendments: 1) Inserted "climate change and conservation" as use of the Improvements (Section 3.6.1); 2) Modified budget reporting requirements (Section 3.11); 3) Inserted the Bank Financial Statements requirement included in the January 2009 amendment (Section 3.11.3); 4) Changed the construction bonding requirement to projects where bonding is required by State Law or for construction requiring the City's approval under the Lease (Section 4.2.2); 5) Changed the Notice of Completion requirement to work exceeding $100,000 rather than for all construction regardless of price (Section 4.3.3); 6) Revised the definition of "major repairs and replacements" to mean a discrete repair expenditure greater than $50,000, or any repair or maintenance project that is outside the scope of the annual operating budget or annual maintenance plan. The current Lease restricts the use of the repair and replacement fund to projects costing more than $50,000 41 or outside the scope of the annual maintenance plan. The annual maintenance plan is deleted (Section 5.5); and 7) Changed SHAMS' obligation to operate the Center for one-year following SAAMS' election not to operate from the standards required of the City in the Cooperative Agreement to a standard of "closed to public access and to any research activity (Section 5.6). In addition to removing the tidelands area from the SAAMS AGREEMENT which will reduce City revenues approximately $9K annually, the new Agreement allows SAAMS to access up to $500K of the Termination Fund as necessary for cash flow as long as the Termination Fund is fully restored on one day each year (September 30th). The extent that SAAMS fails to maintain the Termination Fund and Renewal and Replacement Fund as required in the agreement; and in the event circumstances require the City to operate the Center until it is turned over to ADF&G, the City will be required to pay whatever costs are necessary to cover the costs of termination and to provide for major maintenance and repairs. Eliminating the Tidelands lease will result in a loss of $9,000 annually for the City of Seward and an increase in liability for the continued erosion and damage to the sheet wall. There are financial risks and benefits associated with the SHMMS AGREEMENT. The amended Agreement has additional risks. Administration has determined that it is in the public's interest to enter into an amendment to the SAAMS AGREEMENT because of the public benefits provided by SAAMS to the Seward community INTENT: To sign the Second Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands and the Lease, Operation and Maintenance of the Alaska SeaLfe Center, giving them time to become more financially stable. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: This lease amendment assigns significantly greater financial risk to the taxpayers of Seward. Under the original agreement for operation of the Alaska Sealife Center, the City intended to transfer all of its obligations under the Cooperative Agreement with the State of Alaska, to SAAMS. This was done through the creation of three reserve accounts, all of which will have been nearly eliminated under the current agreement. The first reserve account required that "SAAMS shall at all times maintain an operating reserve of not less than ten percent of projected annual operating expenses." The purpose of these reserves was to ensure positive cash flow and hedge against unexpected declines in revenue or increases in costs. In 2006, the operating reserves were estimated at approximately $1.2 million. This reserve account requirement was eliminated by the City Council. The second reserve account was the Repair & Replacement Fund. The purpose of this Fund was to accumulate resources to cover major facility repairs and replacement to protect the physicalplant and 42 assets of the ASLC in order to ensure that SAAMS did not use resources solely to fund operations. This Fund would ensure that over the life of operating the ASLC, the facility was properly maintained to ensure that any operator would be able to walk into the facility and operate it without incurring significant costs to upgrade or repair infrastructure. Under the original agreement, the amount required to be placed in this Fund was defined by the following formula: 0.75 x replacement value x age / 1275, and would have required a balance of $211,764.71 in 2009. This reserve Fund was eliminated by the City Council. The third reserve account is the Termination Fund, and it is the sole remaining reserve which SA IS is required to maintain. The purpose of this fund is to prepare for the possibility that the City would need to find a new operator or transfer ownership of the ASLC. Under the Cooperative Agreement with the State of Alaska, the City is obligated to maintain in reserves, an amount required to maintain the facility for a year, until such time as a new operator can be put into place. The amount needed to fund the Termination Fund was originally established in excess of$2 million, based on estimates that SAAMS provided of what it cost to operate the Center for a full year. However, the City Council previously agreed to reduce the balance in this Fund to $700,000, and is now being asked to allow this fund to be used for cash flow, potentially depleting any reserves which could be needed in the event that SAAMS is unable to operate the Center. In short, the City's taxpayers are assuming significant financial risks through further depletion of required reserve accounts. While this amendment will assist SAAMS with short-term cash flow requirements, it has the potential to completely eliminate all reserves previously established to protect the City's assets, ensure the viability of operating reserves, and protect the City's commitments to the State of Alaska, requiring that the City operate the facility for up to a year. Approved by Finance Department:��y% ATTORNEY REVIEW: Yes X No RECOMMENDATION• Council approve Resolution 2009-L3q Authorizing the City Manager to enter into a "Second Amended and Restated Agreement for Lease of Tract 2A, Waterfront Tracts, and Adjacent Tidelands and the Lease, Operation and Maintenance of the Alaska SeaLife Center". 43 SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE Effective Date: Final Second Amended and Restated Agreement 2009 TABLE OF CONTENTS I . Definitions and General Provisions 1.1 Delmitions 4 1.2 General Definitions 4 2. Representations and Warranties 7 2.1 Representations and Warranties of City ................................ 7 2.2 Representations and Warranties of SAAMS 7 3. Lease of Site, Improvements, and Tidelands; Transfer of Improvements* t ........ 9 SAAMS........................................................................................................................ 3.1 Term ..................................................... 10 3.2 I .......... ......... Rental Payments 10 3.3 Quiet Enjoyment ................. ....... 11 3.4 Existing Improvements .............. 11 3.5 * Payment of Expenses ..................... * .......... 11 3.6 Use; Limitations on Use ................... 11 3.7 Inspection of Site and Improvements I ........................................................................ Utilities and Services 12 33.8 .9 ................................................................................................... Taxes, Assessments, and Other Charges ................................................................... 12 3.10 Public Access to Site and Improvements 12 3.11 ................................................................ Books; Financial Statements 13 3.12 ...... ....... * ..... * Destruction/Restoration ............................................................................................. 13 3.13 Condemnation ..... 14 4. ......... ,"", ....... ........ ........ * ..... Additional Construction 14 4.1 City Approval of Proposed Construction 15 4.2 .......................................................... Conditions of Construction... *.'*"*' 15 4.3 .............................................................................. Mechanics' Liens 15 5. ............................. ........................................................................... Cooperative Agreement Requirements 16 5.1 ...................................... Operation and Maintenance of Improvements 16 5.2 ......................... ...... Compliance with Cooperative Agreement 16 5.3 ................................... Space for EVOS Research 17 5.5 ................................... Renewal and Replacement Fund 17 5.6 ......................................................17 SAAMS Election Not to Operate the Improvements 6. ............................................... Insurance 17 6.1 ....... ........ Under the Cooperative Agreement ................... 18 6.2 ' If Not Required by the Cooperative Agreement, .... ......... *'..'.' 6.3 Notice to City 18 6.4 Additional Insurance Provisions 18 7. ............................................................................... Default and Remedies 18 7.1 ................................................................................................. Events of Default of SAAMS 19 7.2 ...................................................................................... Remedies of the City on SAAMS' Default 19 7.3 ................................................................ City Events of Default ................................................................................................. 20 7.4 Remedies of SAAMS on the City's Default 21 ............................................................... 22 SECOND -AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page I of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 45 7.5 Informal Dispute Resolution, Mediation ................................................................. �22 7.6 No Remedy �����m8�we —..~--.......~—~~--^.~^....—~.—~..-..—~. �� S. ' and 8tiwn.—...---^~~^..,,,_,_,,^.,_,~__._~,,,_ �] 8] ]�imitmtimnwf��ity '~--'~—,~_~,__,,,_,_,,_.__^,,,_,~,^. 7� 8.2 Indemnity ~—...----~--~---....—~—~.--..—.~.^....—..—^.—. �� 8.3 Site K�:nditim0m.---..—~^.....—~—~~^~.—.,.^^~...^...----.--. �� 8.4 Environmental Muttcre^.....-----.—.—^.......~.~--...~^^--^^. 2+ 4. Sublease or Assignment --.---~--^.^^~...--...—.--..—^--....—. �� Q] � ^~---.--~—..~—~—^~..—~...—..—.~--^..~....----� 25 0.2 ^~--~—^~—~~~^--^^----~^--^^--^^^^~—~~—~—~~^ 7� 10. - Miscellaneous ................................................ �� 10] Permitted Encumbrances ........................................................................................... 25 10.2 No Implied Waiver ...................................................................................................... 26 10.3 Successors imInterest .................................................................................................. }6 10.4 ��w�umw......--..-----~.--~.,~,_~~___,,,_~~,_,.,_^~,,,, �� 10.5 l�mrtimmimIxxtormmk--..—......----.—.'--~---..---^.,,,__~_,,_ 2� 10.6 Time wfEssence ........................................................................................................... 26 }U7 �� ..—~__,^,__^___^,,__,,,,,___~____,,_.,^,_^,_^_~. 27 10.8 Law Governing Construction of Agreement —~—.---..--........---..77 10.9 Exclusive Forum and Venue .......................... ........................................................... 27 }0]0 S—.---~—~...^—.....,.--~.~~^—.~..—.—'-....----'27 10.11 Integration and Modification .'.—^.`--~---....—'—......,.—..—..27 10]2 Additional Documents .................................................................................. ............. 27 [0]3 Relationship wfParties ................................................................................................ 27 10]4 Other Activities .—.-----.---~—^~,.---........---.---.....'27 10]5 Use of the Name "Alaska SmsLife Cemtex\................................................................ 28 Exhibit A Site Description Exhibit B Environmental Assessment Reports SECOND ----�� AMENDED AND RESTATED AGREEMENT FOR LEASE OFTRACT 2A, WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE 0FTHE AlA8DASEAlFECENTER Page 2 of 30 ���� SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS, AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER THIS AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS, AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER (this "Agreement"), entered into as of by and between the CITY OF SEWARD, ALASKA (the "City" ), and SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a ALASKA SEALIFE CENTER, an Alaska nonprofit corporation ("SAAMS"), amends and restates in its entirety that certain Amended and Restated Agreement For Lease of Tract 2A, Waterfront Tracts and Adjacent Tidelands, and the Lease, Operation and Maintenance of the Alaska SeaLife Center effective November 8, 2006 as amended to the date hereof (the "Amended and Restated Agreement") between the City and SAAMS. WHEREAS, SAAMS generated the concept and secured support for a marine research, education and rehabilitation institution in Seward, Alaska to be operated by SAAMS as an independent, nonprofit organization with a mission to understand and maintain the integrity of the marine ecosystem of Alaska; and WHEREAS, SAAMS secured funding for the improvements to house this institution through the Alaska Legislature, the City's issuance of non -recourse revenue bonds, solicitation of private donations and the Exxon Valdez Oil Spill Trustee Council, whose administrative arm was the Alaska Department of Fish and Game, in response to the overwhelming need for better marine research infrastructure in Alaska and a forum to educate the public about the marine ecosystem of Alaska; and WHEREAS, the City supported this concept by providing waterfront property for the site of the improvements under a long-term lease, acting as a conduit for grant funding for the construction of the improvements, including under the Cooperative Agreement (defined below), and issuing non -recourse revenue bonds secured by SAAMS to provide part of the financing for the construction of the improvements; and WHEREAS, the City is the owner of certain premises more fully described in Exhibit "A," attached hereto and made a part hereof (the "Site"), on which SAAMS has constructed and operates improvements owned by the City (the "Improvements") housing an institution for marine research, rehabilitation, husbandry and education, pursuant to the Prior Agreements; and WHEREAS, the City and the State of Alaska Department of Fish and Game are parties to a Cooperative Agreement for the Construction, Operation, and Maintenance of Research Infrastructure Improvements at the Alaska SeaLife Center, in Seward, Alaska executed in April SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 3 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 47 1995, as amended (the "Cooperative Agreement"), concerning the construction, operation and maintenance of the research and rehabilitation components of the Improvements described therein (the "EVOS Facility"); and WHEREAS, the parties under Prior Agreements transferred all of the obligations of the City under the Cooperative Agreement and the EVOS Trustee Council Resolution adopted November 2, 1994 to SAAMS, except to the extent that the Prior Agreements expressly provided otherwise; and WHEREAS, the City is legally authorized to enter into this Agreement, SAAMS is legally authorized to enter into this Agreement, and the City Council of the City has determined that it is in the public interest to enter into this Agreement for the lease of the Site and the Improvements by negotiation and without appraisal of the fair market value of the Site and the Improvements. NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES and of the mutual covenants herein set forth, the parties hereto agree and covenant as follows: Definitions and General Provisions 1.1 Definitions. The following terms shall, for all purposes of this Agreement, have the following meanings: 1.1.1 "ADF&G" means the Alaska Department of Fish and Game. 1.1.2 "Agreement" means this Second Amended And Restated Agreement For Lease Of Tract 2A, Waterfront Tracts, And The Lease, Operation And Maintenance Of The Alaska SeaLife Center as originally executed or as it may from time to time be amended by one or more amendments entered into pursuant to the applicable provisions hereof. 1.1.3 "Award" means all compensation, sums, or anything of value awarded, paid, or received on a total or partial condemnation. 1.1.4 "City" means the City of Seward, Alaska. 1.1.5 "Condemnation" means (a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a condemnor, and (b) a voluntary sale or transfer to any condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending. 1.1.6 "Condemnor" means any public or quasi -public authority, or private corporation or individual, having the power of eminent domain. SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 4 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 1.1.7 "Cooperative Agreement" means the Cooperative Agreement for the Construction, Operation, and Maintenance of Research Infrastructure Improvements at the Alaska SeaLife Center, in Seward, Alaska executed in April 1995, as amended, between ADF&G and the City. 1.1.8 "Date of Taking" means the date the condemnor has the right to Possession of the property being condemned. 1.19 "Environmental Laws" means all local, state, and federal laws, ordinances, regulations, and orders related to environmental protection; the use, storage, generation, production, treatment, emission, discharge, remediation, removal, disposal, or transport of any Hazardous Substance. 1.1.10 "Event of Default" means any of the events specified as an event of default of SAAMS in Section 6.1, of the City in Section 6.3, or elsewhere in this Agreement. 1.1.11 "EVOS Facility" means the research and rehabilitation components of the Improvements, described in the Institute of Marine Science Infrastructure Improvements Exxon Valdez Oil Spill Trustee Council Project #94199, Project Description and Supplemental Materials, dated September 26, 1994, Section 6, Schematic Design, as modified during their initial construction and by subsequent alterations and improvements. 1.1.12 "EVOS Requirements" means the obligations of the City described in the Resolution of the EVOS Trustee Council adopted November 2, 1994. Council. 1.1.13 "EVOS Trustee Council" means the Exxon Valdez Oil Spill Trustee 1.1.14 "Fiscal Year" means the fiscal year of SAAMS, presently the twelve- month period ending on September 30, or any other twelve-month period that SAAMS may designate from time to time as its fiscal year. 1.1.15 "Force Majeure" means, without limitation, the following: acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States or of the State of Alaska or any of their departments, agencies, subdivisions, or officials, or any civil or military authority (including any orders or restraints exercised pursuant to any agreement to which SAAMS or the City is a party); insurrection; riots; landslides; icebergs; typhoons; tornadoes; adverse weather conditions; tidal waves; earthquakes; tsunami; fires; storms; droughts; floods; explosions; breakage, malfunction, or accident to facilities, machinery, transmission pipes, or canals; or any other cause or event not reasonably within the control of the party whose performance is at issue. &t,a 1AI ED AGREEMENT FOR LEASE OF TRACT 2A, Page 5 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER .• 1.1.16 "Hazardous Substance" shall be defined as any substance or material defined or designated as hazardous or toxic waste; hazardous or toxic material; hazardous, toxic, or radioactive substance; or other similar term by any federal, state, or local statute, regulation, or ordinance or common law presently in effect or that may be promulgated in the future as such statutes, regulations, and ordinances may be amended from time to time. 1.1.17 "Improvements" means all improvements to real property located on the Site, including without limitation the EVOS Facility. 1.1.18 "Indemnified Parties" means ADF&G, EVOS Trustee Council and Executive Director of the EVOS Trustee Council, the State of Alaska, the United States of America, and their officers, agents, and employees, for so long as the City or SAAMS is required to indemnify such person or entity under the terms of the Cooperative Agreement. 1.1.19 "Prime Rate" means the interest rate published in the money rates column of the Wall Street Journal and identified as the prime rate, defined in the Wall Street Journal as the general level of the base rate on corporate loans at large U.S. money center commercial banks. 1.1.20 "Prior Agreements" means the Agreement for Financing, Lease, Construction, Operation, and Maintenance of the Alaska SeaLife Center dated as of April 28, 1995, as amended to the date hereof, between the City and SAAMS and Amended and Restated Agreement for Lease of Tract 2A, Tidelands, and the Lease, Operation and Maintenance of the Alaska SeaLife Center effective November 8, 2006, as amended to the date hereof, between the City and SAAMS. 1.1.21 "Renewal and Replacement Fund Requirement" means (i) $500,000 for the Fiscal Year ending September 30, 2007, and (ii) for each subsequent Fiscal Year, the amount determined by multiplying the Renewal and Replacement Fund Requirement for the immediately preceding Fiscal Year by 1.030. 1.1.22 "SAAMS" means the Seward Association for the Advancement of Marine Science d/b/a Alaska SeaLife Center, a nonprofit corporation organized under the laws of the State of Alaska and recognized by the Internal Revenue Service under 26 USC 501(c)(3). 1.1.23 "Site" means the real property owned by the City and described on the attached Exhibit "A." 1.1.24 "State" means the State of Alaska. 1.1.25 "Termination Fund Requirement' means the amount required to maintain the Site and Improvements while closed to public access and to any research activity SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 6 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 50 for a period of one year pursuant to SAAMS' election not to operate the Improvements under Subsection 3.1.1, and determined to be (i) $700.000 for the Fiscal Year ending September 30, Termination Fund Requirement for the immediately preceding Fiscal Year by 1.030. 2006, and (ii) for each subsequent Fiscal Year, the amount determined by multiplying the 1.1.26 "Term" means the term of this Agreement, which shall be the duration of the lease of the Site, Improvements, by the City to SAAMS as set forth in Section 3.1. 1.2 General Definitions. 1.2.1 Sections. All references in this Agreement to designated "Sections" and other subdivisions are to designated sections and other subdivisions of this Agreement. 1.2.2 General Words of Reference. The words "herein," "hereof," "hereto," "hereby," and "hereunder" and other words of similar import refer to this Agreement as a whole and not any particular section or other subdivisions. 1.2.3 Singular/Plural. The terms specifically defined in Section 1.1 have the meanings assigned to them in that Section and include the plural as well as the singular. 1.2.4 GAAP. All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with applicable generally accepted accounting practices, consistently applied, in effect from time to time. 1.2.5 Authority. Every "approval," "request," "order," "demand," "application," "appointment," "notice," "statement," "certificate," "consent," or similar action hereunder shall, unless the form thereof is specifically provided, be in writing, signed by a duly authorized officer or agent of the party or other person with a duly authorized signature. 2. Representations and Warranties. 2.1 Representations and Warranties of Citv. As of the date hereof, the City hereby represents and warrants as follows: 2.1.1 Good Standing. The City is a home rule city duly organized and existing under the constitution and laws of the State of Alaska. 2.1.2 Authorization. The City has the full power and authority to enter into this Agreement and to carry out its terms and provisions. 2.1.3 Consent, Approval. Except as may have already been obtained, no consent or approval of any trustee or holder of any indebtedness or obligation of the City, and no consent, approval, permission, authorization, order, or license of any governmental authority, is aa�.vi�u F1rv1r-ivLlr-L A-Nli F-USIA-1 E;D AGREEMENT FOR LEASE OF TRACT 2A, Page 7 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 51 required to be obtained by the City for the execution and delivery of this Agreement or any other instrument or agreement required of the City under this Agreement. 2.1.4 No Restrictions on Agreement. The City is not subject to any charter, ordinance, contractual limitation, or provision of any nature whatsoever which in any way limits, restricts, or prevents the City from entering into this Agreement or from performing any of its obligations hereunder. 2.1.5 No Conflicts with Other Agreements. Neither the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the provisions hereof, materially conflicts with, violates, or breaches any of the material terms, conditions, or provisions of any indenture, instrument, or agreement to which the City is a party or by which the City is bound, any statute, rule, or regulation, or any judgment, decree, or order of any court or agency binding on the City, or constitutes a default under any of the foregoing which has not been waived or consented to in writing by the appropriate party or parties, or results in the creation or imposition of any lien, charge, security interest, or encumbrance of any nature whatsoever upon any of the Site or Improvements not permitted under the terms of any restriction, agreement, instrument, statute, governmental rule or regulation, court order, judgment, or decree. 2.1.6 Litigation. To the knowledge of the City, there is no action, suit, proceeding, inquiry, or investigation by or before any court, governmental agency, or public board or body pending or threatened against the City which (i) affects or seeks to prohibit, restrain, or enjoin the execution and delivery of this Agreement, (ii) affects or questions the validity or enforceability of this Agreement, or (iii) questions the power or authority of the City to carry out the transactions contemplated by, or to perform its obligations under, this Agreement. 2.1.7 Enforceability. When duly executed, this Agreement will be enforceable against the City according to its terms, except as may be limited by bankruptcy, insolvency, reorganization, or other laws affecting creditors' rights generally as amended from time to time. 2.1.8 Effect of Certificate. Any certificate signed by an official of the City duly authorized to execute such certificate and delivered pursuant to this Agreement shall be deemed to be a representation and warranty by the City as to the statements made therein. 2.2 Representations and Warranties of SAAMS. As of the date hereof, and as to Subsection 2.2.10 for the Term of this Agreement, SAAMS hereby represents and warrants as follows: 2.2.1 Good Standing: 501(c) (3) Recognition. SAAMS is a nonprofit corporation in good standing under the laws of the State of Alaska and has been determined by the Internal Revenue Service to be an organization described in 26 U.S.C. 501(c)(3). SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 8 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 52 2.2.2 Authorization. SAAMS has full corporate power and authority to carry on its business as now conducted and to enter into this Agreement. The execution and delivery of this Agreement has been authorized by proper corporate action, and this Agreement constitutes a valid and legally binding obligation of SAAMS. 2.2.3 Consent, Annroval. Except as may have already been obtained, no consent or approval of any trustee or holder of any indebtedness or obligation of SAAMS, and no consent, approval, permission, authorization, order, or license of any governmental authority, is required to be obtained by SAAMS for the execution and delivery of this Agreement or any other instrument or agreement required of SAAMS under this Agreement. 2.2.4 No Restrictions on A reement. Except as has been waived in writing by the City, SHAMS is not subject to any charter, bylaw, or contractual limitation or provision of any nature whatsoever which in any way limits, restricts, or prevents SAAMS from entering into this Agreement or from performing any of its obligations hereunder. 2.2.5 No Defaults. SAAMS is not in default of any promissory note, loan agreement, lease agreement, rental agreement, grant agreement, or any other contract or obligation. 2.2.6 No Conflicts with Other A reements. Neither the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the provisions hereto, materially conflicts with, violates, or breaches any charter, bylaw, or stock provision of SAAMS, any of the material terms, conditions, or provisions of any indenture, instrument, or agreement to which SAAMS is a party or by which SAAMS is bound, any statute, rule or regulation, or any judgment, decree, or order of any court or agency binding on SHAMS, or constitutes a default under any of the foregoing which has not been waived or consented to in writing by the appropriate party or parties, or results in the creation or imposition of any lien, charge, security interest, or encumbrance of any nature whatsoever upon any of the property or assets of SAAMS not permitted under the terms of any restriction, agreement, instrument, statute, governmental rule or regulation, court order, judgment, or decree. 2.2.7 Litigation. To the knowledge of SAAMS, there is no action, suit, proceeding, inquiry, or investigation by or before any court, governmental agency, or public board or body pending or threatened against SAAMS which (i) affects or seeks to prohibit, restrain, or enjoin the execution and delivery of this Agreement, (ii) affects or questions the validity or enforceability of this Agreement, or (iii) questions the power or authority of SAAMS to carry out the transactions contemplated by, or to perform its obligations under, this Agreement. SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 9 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASICA SEALIFE CENTER 53 2.2.8 Enforceability. When duly executed, this Agreement will be enforceable against SAAMS according to its terms, except as may be limited by bankruptcy, insolvency, reorganization, or other laws affecting creditors' rights generally as amended from time to time. 2.2.9 Effect of Certificate. Any certificate signed by an officer of SAAMS duly authorized to execute such certificate and delivered pursuant to this Agreement shall be deemed to be a representation and warranty by SAAMS as to the statements made therein. 2.2.10 Mission. The primary corporate purpose and mission of SAAMS is, and will remain for the duration of the Term of this Agreement, the operation and maintenance of the Improvements as a marine research, rehabilitation and education facility and to a standard that is comparable to that of other well -operated and maintained marine research facilities throughout the United States. SAAMS will apply all donations and appropriations of public funds that are made to or for the Alaska SeaLife Center to carry out this corporate purpose and mission. 3. Lease of Site, and Improvements. The City leases to SAAMS and SAAMS leases from the City the Site and Improvements subject to the terms and conditions of this Agreement. 3.1 Term. The Term of the lease by the City to SAAMS and SAAMS agreement to operate and maintain the Site and Improvements shall commence on April 28, 1995. The Term of this Agreement shall terminate at the end of the practical life of the Improvements or as provided in Section 3.1.2. 3.1.1 Practical Life of Improvements. The practical life of the Improvements shall: 3.1.1.1 For so long as the Cooperative Agreement remains in effect, end upon the occurrence of both of the following: (i) SAAMS makes a reasonable determination, as verified by an independent financial consultant selected or approved by the City, that the Improvements are not capable of generating revenues sufficient to cover the operating expenses and debt service of the Improvements, plus fund the renewal and replacement fund for the Improvements as required in Section 5.4; and (ii) while being operated in accordance with any recommendation from the independent financial consultant and in accordance with terms and conditions of this Agreement during the two-year period following SAAMS' determination, the Improvements do not generate revenues sufficient to cover the operating expenses and debt service of the Improvements, plus fund the renewal and replacement fund for the Improvements as required in Section 5.4; or 3.1.1.2 If the Cooperative Agreement has terminated, end upon the date that SAAMS makes a reasonable determination that the Improvements are not capable of generating revenues sufficient to cover the operating and proactive maintenance expenses of the Improvements, plus fund the renewal and replacement fund as required in Section 5.4. SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 10 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 54 3.1.2 Limitation of Term. In no event shall the Term of this Agreement extend beyond the earlier of (i) April 28, 2048, and (ii) any event causing damage to, or destruction of, the Improvements, where the cost of repairing or restoring the Improvements, net of any available reserves and insurance proceeds not reduced for applicable deductibles and coinsurance, exceeds ten percent (10%) of the replacement cost of the Improvements. 3.2 Rental Payments. 3.2.1 Site and Improvements. With regard to the Site and Improvements, SAAMS shall pay to the City a yearly rental of One Dollar ($1.00), payable on the first day of the Term, and thereafter on the first day of each calendar year during the Term. SAAMS has prepaid such rent for the entire Term. 3.3 Quiet Enioyment. The City covenants and agrees that SAAMS shall have quiet enjoyment of the Site, Improvements during the Term. 3.4 Existing Improvements. The City and SAAMS acknowledge that there are certain improvements currently located in, on, or around the Site that existed before the date of the Previous Agreements. Such improvements now owned by the City shall remain the property of the City. Subject to Sections 3.4.1 and 3.4.2 of this Agreement, SAAMS may use, sell, demolish, remove, or otherwise dispose of any such improvements located on the Site. The City shall receive no compensation for such improvements other than the performance of SAAMS' covenants under this Agreement. 3.4.1 Utilities. SAAMS may, at its own expense and subject to the written approval of the City relocate, sell, demolish, remove, or otherwise dispose of City utilities on the Site. 3.4.2 Fourth Avenue Dock. The parties acknowledge that the Fourth Avenue Dock was decommissioned. SAAMS may not make the Fourth Avenue Dock available for the docking of vessels without the written permission of the City. SAAMS may, at its own expense, (i) remove parts of the Fourth Avenue Dock as necessary to render the dock unusable by vessels, including without limitation bollards, fender poles, and bumpers: and (ii) either render the dock safe for public access or prevent such access by constructing a fence or other equivalent means to block access. Except as permitted by this paragraph, SAAMS shall not sell, demolish, remove, or otherwise dispose of the Fourth Avenue Dock without the written permission of the City. 3.5 Pavment of Expenses. SAAMS shall be responsible for the payment of all expenses relating to the management and operation of the Site and Improvements. 3.6 Use; Limitations on Use. �n� vrvL vrvirivLrL fuvll K S I A I ED AGREEMENT FOR LEASE OF TRACT 2A, Page 11 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 55 3.6.1 Use. The Improvements shall be available for use by the general public and shall be used as a facility dedicated to understanding and maintaining the integrity of the marine ecosystem of Alaska through research; with specialized capabilities for studies on marine mammals, marine birds, fish, climate change; conservation, rehabilitation, public education, and public visitation. 3.6.2 Cancellation of Insurance. SAAMS shall not do, bring, or keep anything in or about the Site and Improvements that will cause a cancellation of any insurance covering the Site and Improvements. 3.6.3 Compliance with Laws. SAAMS shall comply at all times with any and all Federal, State, Kenai Peninsula Borough, and City statutes, ordinances, rules, regulations and judicial and administrative decisions governing the use and operation of the Site, Improvements, including without limitation the terms and provisions of the conditional use permit for the Alaska Seal-ife Center, as such term is defined in the Cooperative Agreement, issued by the City Planning and Zoning Commission. 3.6.4 Waste; Nuisance. SAAMS shall not use the Site and Improvements in any manner that will constitute waste, nuisance, or unreasonable annoyance. 3.7 Inspection of Site and Improvements. The City may periodically inspect the Site and Improvements in order to ascertain the condition of each, but the exercise of this right -Or shall not imply any obligation to do so nor any obligation to do so in any particular way. 3.8 Utilities and Services. SAAMS shall make all arrangements for and pay for all utilities and services furnished to or used by SAAMS at the Site and Improvements, during the Term. 3.9 Taxes, Assessments, and Other Charges. SAAMS shall pay all real and personal property taxes, sales taxes, special assessments, and other charges of every description levied on or assessed against the Site, improvements on the Site, personal property located on the Site, the leasehold estate, or SAAMS' business operations located on the Site, to the full extent of installments falling due during the Term. SAAMS shall make all such payments before delinquency and before any fine, interest, or penalty shall become due or be imposed by operation of law for their nonpayment; provided that SAAMS may pay any such payment in installments where permitted by law, but shall pay any installment with interest before delinquency. SAAMS may contest the legal validity or amount of any tax, assessment, or charge for which SAAMS is responsible under this Agreement. If SAAMS contests any such tax, assessment, or charge, SAAMS may withhold or defer payment or pay under protest, but shall protect the City and the Site from any lien by surety bond or other appropriate security. 3.9.1 Taxation. To the extent that sales by SAAMS and rents paid to SAAMS related to the visitor and educational parts of the Improvements are exempt from City sales tax SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 12 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER OT-1 only because SAAMS is a nonprofit corporation, SAAMS will collect on all such sales and rents and remit to the City an amount equal to the City sales tax that would be due on such sales and rents if such sales and rents were not exempt. 3.10 Public Access to Site and Improvements SAAMS acknowledges that public use of, and access to, the Site and Improvements are material factors in the determination by the City that this Agreement is in the public interest. SAAMS shall permit public use of, and access to, the Site and Improvements as provided in this Section, in addition to all other public use of the Site and Improvements. 3.10.1 Public Use of Site and Improvements Subject to fees and regulations that SAAMS may adopt, SHAMS shall permit the general public to use the grounds of the Site and the interior of the visitor and education portion of the Improvements at tunes outside the regular business hours of the visitor and education portion of the Improvements. 3.10.2 Public Access to Plaza and Bike Path. Subject to regulations adopted by SAAMS, SAAMS shall make the plaza on the Site accessible to the general public at all times, and shall design, construct, and maintain the Site and Improvements so that the general public shall have reasonable pedestrian access between the Site and the bike path on adjacent City property. 3.10.3 Public Restrooms. SAAMS shall maintain restrooms on the Site that are available to the general public without paying for admission to the visitor and education portion of the Improvements during the regular business hours of the visitor and education portion of the Improvements. 3.11 Books; Financial Statements. 3.11.1 Books of Record and Account. SAAMS shall keep proper books of record and account in which complete and correct entries shall be made of all transactions relating to the Site and Improvements. Such books of record and account shall at all times during business hours be subject to the inspection of the City or its authorized representatives. 3.11.2 Detailed Budzet Report. Each quarter, beginning, January, 2009, SAAMS will provide the City with an updated detailed budget report including budgeted grant revenues and estimated revenues from all other sources. The budget reports will be provided as per normal SAAMS Board reports. 3.11.3 Bank Financial Statements. On a monthly basis SAAMS will provide the City with copies of third party bank or financial institution statements detailing the balances of the Renewal and Replacement Fund and Termination Fund held by SAAMS. JLk-UIN J fuviEN"h" AND KEN] AIED AGREEMENT FOR LEASE OF TRACT 2A, Page 13 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 57 3.11.4 Financial Statements. SAAMS shall cause to be prepared and filed with the City annually, within one hundred eighty (180) days after the close of each Fiscal Year during the Term, its annual audited financial statements, accompanied by an opinion in writing of an independent certified public accountant. For the purpose of any provision of this Agreement that requires SAAMS to maintain a specified balance in a special fund, the balance in the fund shall be determined as of the last day of the Fiscal Year, in accordance with the audited financial statements for that Fiscal Year. 3.11.5 Nonprofit Status. SAAMS shall promptly notify the City upon receipt of any notice from the Internal Revenue Service questioning or revoking recognition of SAAMS as an organization recognized under 26 USC 501(c)(3). The notice to the City shall describe any material adverse change to the financial condition of SAAMS that would result from SAAMS ceasing to be recognized as a 501(c) (3) organization. 3.12 Destruction/Restoration 3.12.1 Total or Partial Destruction, Obligation to Restore. If, during the Term, the Improvements are totally or partially destroyed, rendering the Improvements totally or partially inaccessible or unusable, SAAMS shall restore the Improvements to substantially the same condition as they were in immediately before destruction, except as provided in Sections 3.13.1.1 and 3.13.1.2. 3.12.1.1 If the cost of repairing or restoring the Improvements, net of any available repair and replacement reserves and insurance proceeds not reduced by applicable deductibles and coinsurance, exceeds ten percent (10%) of the then replacement cost of the Improvements, SAAMS can elect to terminate this Agreement by giving notice to the City within fifteen (15) days after determining the restoration cost and replacement value, and this Agreement shall terminate. 3.12.1.2 If the existing laws do not permit the restoration, either party can terminate this Agreement immediately by giving notice to the other party. 3.12.2 City Not Obligated to Restore Improvements. The City shall be under no obligation to use or advance any of its own funds to restore any damage to, or destruction of, the Improvements. 3.13 Condemnation. 3.13.1 Rights and Obligations of Parties Governed by this Agreement. If, during the Term, there is any taking of all or any part of the Site and Improvements, or any interest in this Agreement (collectively the "Premises") by condemnation, the rights and obligations of the parties shall be determined pursuant to this Section 3.14. SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 14 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 11 3.13.2 Total Taking. If the Premises are totally taken by condemnation, this Agreement shall terminate on the Date of Taking. 3.13.3 Partial Taking. If any portion of the Premises is taken by condemnation, this Agreement shall remain in effect, except that SAAMS can elect to terminate this Agreement if the remaining portion of the Premises is rendered unsuitable for SAAMS' continued use of the Premises. 3.13.4 Payment of Award. The Award shall be payable first, to ADF&G, to the extent required under the Cooperative Agreement, and second, to SAAMS; except that the City shall receive from the Award the amount attributable to the value of the Site without Improvements. 4. Additional Construction. The following conditions govern all construction on the Site on and after the date of this Agreement, including alterations, additions to, and reconstruction of, the Improvements. 4.1 City Approval of Proposed Construction 4.1.1 Construction on the Site. Construction (i) having a value not exceeding five hundred thousand dollars ($500,000), or (ii) related to exhibits or renewals or 14- replacements shall not be subject to approval by the City. Before commencing any construction that is not described in the preceding sentence, SAAMS shall deliver to the City, for the City's approval, a set of plans and specifications for the construction prepared by an architect or engineer licensed to practice as such in the State of Alaska. The City shall approve the proposed construction if it will not (i) reduce the value of the Site or Improvements, and (ii) be inconsistent with the mission of the Improvements, and which approval shall not be unreasonably withheld. The City shall be deemed to have approved the proposed construction if it does not notify SAAMS within sixty (60) days after receipt of the plans and specifications that it disapproves. 4.2 Conditions of Construction. All construction shall be subject to the following conditions: 4.2.1 SAAMS shall have obtained all permits required by federal, state, municipal, or borough governmental agencies as a condition to commencing construction. SAAMS, at its sole cost, shall obtain all permits or approvals required by applicable law or regulation, necessary to the construction. 4.2.2 All contractors for the construction on the Site shall furnish performance and payment bonds. to the extent required by A.S. 36.25.010 in the amount of the contract price, SECOND AMENDF,D AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 15 o£30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 59 and in the customary form. For all construction requiring the City's approval under Section 4.1.1 copies of all such bonds shall be furnished to the City at least ten (10) working days prior to commencement of construction. 4.3 Mechanics' Liens. SAAMS shall not permit to be enforced against the Site or the Improvements, or any part of them, any mechanic's or materialman's lien arising from any work of improvement, however such lien may arise. However, SAAMS may in good faith and at SAAMS' own expense contest the validity of any such asserted lien, claim, or demand, provided SAAMS has furnished the bond required in A.S. 34.35.072 (or any comparable statute hereafter enacted providing for a bond freeing the Property from the effect of such a lien claim). SAAMS shall defend and indemnify the City against all liability and loss of any type arising out of work performed on the Site or Improvements by SAAMS, together with reasonable attorneys' fees and all costs and expenses incurred by the City in negotiating, settling, defending, or otherwise protecting against such claims. 4.3.1 Reimbursement of City. If SAAMS does not cause to be recorded the bond described in A.S. 34.35.072 or otherwise protect the Site and Improvements under any alternative or successor statute, and a final judgment has been rendered against SAAMS by a court of competent jurisdiction for the foreclosure of a mechanic's or materialman's lien claim, and if SAAMS fails to stay the execution of the judgment by lawful means or to pay the judgment, the City shall have the right, but not the duty, to pay or otherwise discharge, stay, or prevent the execution of any such judgment or lien or both. SAAMS shall reimburse the City for all sums paid by the City under this section, together with all the City's reasonable attorneys' fees and costs, plus interest on those sums, fees, and costs at the Prime Rate plus three percent (3%) per year from the date of payment until the date of reimbursement. 4.3.2 Notice of Non -Responsibility. The City may give notice of non - responsibility for any work performed by SAAMS on the Site or the Improvements. 4.3.3 Notice of Completion. On completion of any work exceeding $100,000, SAAMS shall file or cause to be filed a notice of completion. SAAMS hereby appoints the City as SAAMS' attorney -in -fact to file the notice of completion on SAAMS failure to do so after the work of improvement has been substantially completed. 5. Cooperative Agreement Requirements. Under the Cooperative Agreement, the City is responsible for the operation and maintenance of the Improvements as a marine research, rehabilitation and education facility. By this Agreement, SAAMS agrees to perform all of the obligations of the City under the Cooperative Agreement, including without limitation the obligations described in this Section 5. 5.1 Operation and Maintenance of Improvements. SAAMS shall provide the personnel, subcontractors, equipment, and facilities to perform all things necessary to operate and maintain the Improvements during the practical life of the Improvements. SAAMS shall SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 16 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER .1 operate and maintain the Improvements to a standard that is comparable to that of other well - operated and maintained marine research facilities throughout the United States. SAAMS shall develop and implement a maintenance plan and schedule to ensure that the Improvements are operated and maintained to the standard set forth in this subsection. 5.2 Compliance with Cooperative Agreement. SHAMS shall use and maintain the Improvements in accordance with all requirements of the Cooperative Agreement then in effect with respect to such use and maintenance. SAAMS shall not use the Improvements in any manner that would cause the City to be in breach of, or to incur any liability under, any provision of the Cooperative Agreement then in effect. 5.3 Space for EVOS Research. SAAMS shall comply with the terms of the Cooperative Agreement then in effect concerning giving priority to research related to the Exxon Valdez Oil Spill restoration mission, rent for space to conduct research funded with joint Exxon Valdez Oil Spill civil settlement funds, allocation of laboratory and office space to ADF&G for research projects at the EVOS Facility, and use of Research Equipment & Restoration Exhibitry as described in the Cooperative Agreement. 5. 5 Renewal and Replacement Fund. SAAMS has accumulated and shall maintain an amount equal to the Renewal and Replacement Fund Requirement in a special fund dedicated to pay the cost of major repairs and replacements to and within the Improvements, that otherwise would be the obligation of the City under the Cooperative Agreement. For purposes of this Agreement, "major repairs and replacements" means a discrete repair expenditure greater than S50,000, or any repair or maintenance project that is outside the scope of the annual operating budget or annual maintenance plan. Amounts may be withdrawn from the fund to pay the cost of major repairs and replacements within the Improvements, to the extent that insurance or other moneys recoverable as the result of damage or loss to the Improvements are not available to pay such cost. If a withdrawal from the fund to pay the cost of major repair or replacements within the Improvements causes the amount remaining in the fund to be less than the Renewal and Replacement Fund Requirement, SAAMS shall restore the amount in the fund to not less than the Renewal and Replacement Fund Requirement by making not more than five equal annual deposits to the fund. Nothing in this subsection limits SAAMS' responsibility to maintain and repair the Improvements in a timely manner even if the costs exceed the amount in the fund. 5.5 SAAMS Election Not to Operate the Improvements. SAAMS shall notify the City if SAAMS elects not to operate the Improvements, either because the Improvements have reached the end of their practical life as defined in Subsection 3.1.1, or if for any other reason permitted under this Agreement, SAAMS elects not to operate the Improvements. The City shall provide the same notice to ADF&G under the Cooperative Agreement within thirty (30) business days after receiving the notice from SHAMS. If the City elects not to operate the Improvements, the latter notice commences the one-year period during which ADF&G shall have the option to enter and assume the operation of the Alaska SeaLife Center, as provided in the Cooperative Agreement. For a period of one year after giving notice to ADF&G under this subsection, `r--N"ZLJ Euvu tcc6 I A I hD AGREEMENT FOR LEASE OF TRACT 2A, Page 17 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 61 SAAMS shall continue to operate and maintain the Site and Improvements as defined in Subsection 1.1.25. SAAMS shall maintain an amount equal to the Termination Fund Requirement in a special fund dedicated to pay the cost of performing this obligation. SAAMS may access up to $500,000 annually from the Termination Fund between October 1 and September 29, but shall provide evidence to the City that on September 30 that this fund is fully replenished. Nothing in this subsection is intended to limit SAAMS' responsibility if the costs exceed the amount in the special fund. Any amount remaining in the fund at the end of the one- year period shall be released to the party that has assumed the operation of the Improvements. 6. Insurance. Commencing not later than the effective date of this Agreement and throughout the Term, SAAMS shall procure and maintain at its expense the insurance required under this section. All such policies shall be written by insurance companies legally authorized or licensed to' do business in the State of Alaska and acceptable to the City. SAAMS shall provide to the City from time to time certificates that it has procured and is maintaining the insurance required under this Agreement. 6.1 Under the Cooperative Agreement. For so long as the Cooperative Agreement requires the City to insure the Site or Improvements, the minimum insurance for the Site and Improvements shall be that required of the City under the Cooperative Agreement; provided that such insurance requirements maybe modified as provided in this Section 6.1. If one or more of the required insurance coverages are not available under reasonable terms and conditions, SAAMS shall, under the guidance and direction of the State of Alaska, Division of Risk Management, use its best efforts to obtain reasonably equivalent coverage acceptable to ADF&G. If, after utilizing its best efforts, SAAMS is unable to obtain adequate insurance at a cost effective rate as reasonably determined by SAAMS, SAAMS may request a waiver of the relevant insurance requirement. The request shall outline the steps taken by SAAMS to obtain such insurance and shall disclose quotations received for coverage. Upon the written determination of the State of Alaska, Division of Risk Management that a reasonable basis exists to believe that a waiver of such insurance will not materially affect the State's risk with regard to the Improvements or any activities in, on, or around the Improvements, and approval of the requested waiver by ADF&G, the City will approve the requested waiver. 6.2 If Not Required by the Cooperative Agreement. If the Cooperative Agreement does not require the City to insure the Site or Improvements, the insurance for the Site and Improvements shall be that which the City then requires generally under leases of City property to private parties. 6.3 Notice to City. All insurance policies shall provide for thirty (30) days' notice to the City and ADF&G of cancellation and/or material change in policy terms. 6.4 Additional Insurance Provisions. The City and Indemnified Parties shall be named as additional insureds under all insurance policies maintained by SAAMS as required under Section 6.1, or SAAMS shall obtain an appropriate waiver of subrogation in favor of the SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 18 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER m City and the Indemnified Parties with respect to all insurance policies to effect the same purpose. The City, ADF&G, and State of Alaska shall be named under casualty insurance required under Section 6.1 as loss payees on any property loss settlement. The City shall be named as an additional insured under all policies maintained by SAAMS as required under Section 6.2, or SAAMS shall obtain an appropriate waiver of subrogation in favor of the City with respect to all insurance policies to effect the same purpose. The City shall be named under casualty insurance required under Section 6.2 as loss payee on any property loss settlement. 7. Default and Remedies 7.1 Events of Default of SAAMS. The following events shall constitute a "SHAMS Event of Default" under this Agreement: 7.1.1 Failure to Pay. The failure of SAAMS to pay to the City any rental or other sum of money due under this Agreement within ten (10) days after the same is due hereunder. 7.1.2 Default of Covenants or Conditions. Default by SAAMS in the performance or observance of any covenant or condition of this Agreement (other than a default involving the payment of money or under Section 7.1.1), which default is not cured within thirty (30) days after the giving of notice thereof by the City, unless such default is of a nature that it cannot be cured within such thirty (30) day period, in which case no Event of Default shall be declared so long as SAAMS shall commence the curing of the default within such thirty (30) day period and shall thereafter diligently prosecute the curing of same. 7.1.3 Compliance with Health and Life/Safety Codes. Failure by SAAMS to maintain the Site and Improvements in strict compliance with health and life/safety codes as required by this Agreement. 7.1.4 Representations or Warranties. If any representation or warranty by SAAMS contained in this Agreement is false in any material respect as of the date of the making or furnishing thereof and which would have a material adverse effect on the Site or Improvements. 7.1.5 Execution, Insolvency. The sale of SAAMS' interest in the. Site or Improvements under attachment, execution, or similar legal process; or if SAAMS is adjudicated as bankrupt or insolvent under any state bankruptcy or insolvency law or an order for relief is entered against SAAMS under the federal Bankruptcy Code and such adjudication or order is not vacated within ninety (90) days. 7.1.6 Filing of Bankruptcy Petition. The commencement of a case under any chapter of the federal Bankruptcy Code by or against SAAMS, or the filing of a voluntary or �rwivt� A ILNur.0 AND RES 1'AFED AGREEMENT FOR LEASE OF TRACT 2A, Page 19 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 63 involuntary petition proposing the adjudication of SAAMS as bankrupt or insolvent, or the reorganization of SAAMS, or an arrangement by SAAMS with its creditors, unless the petition is filed or case commenced by a party other than SAAMS and is withdrawn or dismissed within ninety (90) days after the date of its filing. 7.1.7 Admission of Inability to Pav Debts. The admission in writing by SAAMS of its inability to pay its debts when due. 7.1.9 Appointment of Receiver or Trustee. The appointment of a receiver or trustee for the business or property of SAAMS, unless such appointment shall be vacated within ten (10) days of its entry. 7.1.9 Assignment for Benefit of Creditors. The making by SAAMS of an assignment for the benefit of its creditors, or if in any other manner SAAMS' interest in this Agreement shall pass to another by operation of law. 7.1.10 Dissolution. The voluntary or involuntary dissolution of SAAMS. 7.1.11 Other Events of Default. The occurrence of any other event described as constituting an "Event of Default" of SAAMS elsewhere in this Agreement. 7.2 Remedies of the City on SAAMS' Default. Subject to Section 7.5, upon the occurrence and continuation of a SAAMS Event of Default, the City, without notice to SAAMS in any instance (except where expressly provided for below), in addition to all remedies available at law, may do any one or more of the following with respect to SAAMS: 7.2.1 Termination. Terminate this Agreement and the rights created herein by giving notice of such election to SAAMS 7.2.2 Enter Site and Improvements; Take Possession. With or without judicial process, enter the Site and Improvements and take possession of any and all goods, inventory, equipment, fixtures, accounts, general intangibles, and all other personal property of SAAMS used in connection with the Site and Improvements without liability for trespass or conversion, and may sell all or any part thereof at public or private sale. 7.2.3 Perform Oblieations. Without assuming any obligation to do so, perform, on behalf of and at the expense of SAAMS, any obligation of SAAMS under this Agreement which SAAMS has failed to perform and of which the City shall have given SAAMS notice, the cost of which performance by the City shall be payable by SAAMS to the City upon demand, and such sums shall bear interest until paid at an annual rate equal to the Prime Rate plus three percent (3%). SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 20 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 7.2.4 Specific Performance. provision of this Agreement. Seek specific performance of any term or 7.2.5 Use of Site and Improvements. If this Agreement is terminated, the City may enter into other agreements providing for use of the Site or the Improvements for such term or terms (which may be greater or less than the period which otherwise would have constituted the balance of the Term) and on such terms and conditions (which may include concessions or free use and alterations of the Improvements) as the City, in its absolute discretion, may determine, but the City shall not be liable for, nor shall SHAMS' obligations hereunder be diminished by reason of, any failure by the City to enter into such leases or any failure by the City to collect any rental due upon such agreements. 7.2.6 Force Maieure. If by reason of force majeure, SAAMS is unable in whole or in part to perform its obligations under this Agreement, SAAMS shall not be in default under this Agreement during the continuance of such inability. SAAMS agrees, however, to use all reasonable efforts to remedy with all reasonable dispatch the cause or causes of its failure to carry out its obligations under this Agreement; provided that the settlement of strikes, lockouts, and other industrial disturbances shall be entirely within the discretion of SAAMS or its contractors, as the case may be, and SAAMS and its contractors shall not be required to make settlement of strikes, lockouts, or other industrial disturbances by acceding to demands of opposing parties when such course is in the judgment of SAAMS unfavorable to SAAMS. No event which is reasonably in the control of SAAMS or which SAAMS, through the exercise of reasonable maintenance or management, could have reasonably prevented from occurring, shall be considered "force majeure." 7.3 City Events of Default. The following events shall constitute a "City Event of Default" under this Agreement: 7.3.1 Default of Covenants or Conditions. Default by the City in the performance or observance of any covenant or condition of this Agreement, which default is not cured within thirty (30) days after the giving of notice thereof by SAAMS, unless such default is of a nature that it cannot be cured within such thirty (30) day period, in which case no Event of Default shall be declared so long as the City shall commence the curing of the default within such thirty (30) day period and shall thereafter diligently prosecute the curing of same. 7.3.2 Representations or Warranties. If any representation or warranty by the City contained in this Agreement is false in any material respect as of the date of the making or furnishing thereof and which would have a material adverse effect on the Site and Improvements. 7.3.3 Execution. Insolvency. The sale of the City's interest in the Site or Improvements under attachment, execution, or similar legal process; or if the City is adjudicated SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 21 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 65 as bankrupt or insolvent under any state bankruptcy or insolvency law or an order for relief is entered against the City under the federal Bankruptcy Code and such adjudication or order is not vacated within ninety (90) days. 7.3.4 FWmp- of Bankruptcy Petition. The commencement of a case under any chapter of the federal Bankruptcy Code by or against the City, or the filing of a voluntary or involuntary petition proposing the adjudication of the City as bankrupt or insolvent, or the reorganization of the City, or an arrangement by the City with its creditors, unless the petition is filed or case commenced by a party other than the City and is withdrawn or dismissed within ninety (90) days after the date of its filing. 7.3.5 Force Majeure. If by reason of Force Majeure, the City is unable in whole or in part to perform its obligations under this Agreement, the City shall not be in default under this Agreement during the continuance of such inability. The City agrees, however, to use all reasonable efforts to remedy with all reasonable dispatch the cause or causes of its failure to carry out its obligations under this Agreement; provided that the settlement of strikes, lockouts, and other industrial disturbances shall be entirely within the discretion of the City or its contractors, as the case may be, and the City and its contractors shall not be required to make settlement of strikes, lockouts, or other industrial disturbances by acceding to demands of opposing parties when such course is in the judgment of the City unfavorable to the City. 7.4 Remedies of SAAMS on the City's Default. Subject to Section 7.5, upon the occurrence and continuation of a City Event of Default, SAAMS may do any one or more of the following: 7.4.1 Terminate Agreement. SAAMS may elect to terminate this Agreement. 7.5 Informal Dispute Resolution, Mediation. The exercise by the City and SAAMS of the remedies provided in Sections 7.2 and 7.4, respectively, shall be subject to prior informal dispute resolution and mediation as provided in this Section. 7.5.1 Nesotiation. Within 10 days after either party gives notice of the other party's default under this Agreement, SAAMS and the City meet to discuss the issue and attempt to negotiate its resolution. When SAAMS and the City agree upon the resolution of such an issue, such agreement shall be effective immediately and shall be recorded by the preparation and execution of an amendment to this Agreement. 7.5.2 Mediation. Any notice of default that was not resolved by negotiation under subsection 7.5.1 of this Section shall be submitted to mediation in accordance this subsection. 7.5.2.1 A party shall file notice of demand for mediation in writing with the other party. Demand for mediation may not be filed until the tenth day after the parties have met to SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 22 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER negotiate under subsection 7.5.1 of this section. Failure to demand mediation within thirty (30) days after the earliest date on which mediation may be demanded under this paragraph shall result in waiver of the default. In no event may demand for mediation be made after the date when institution of litigation based on the default would be barred by the applicable statute of limitations. 7.5.2.2 After the filing of a timely demand for mediation, the parties shall use good faith efforts to resolve the issue that is the subject of the demand through non -binding mediation. If the parties cannot agree upon mediation or a mediator within fifteen (15) days from the date of the demand for mediation, either party may request the Superior Court for the State of Alaska, Third Judicial District at Kenai, to select the mediator and the court -selected mediator shall determine what rules shall govern the mediation. 7.6 No Remedy Exclusive. No remedy herein conferred upon or reserved to the City or SAAMS is intended to be exclusive of any other available remedy or remedies but each and every such remedy shall be cumulative and shall be in addition to every other remedy herein or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon an Event of Default shall impair any such right or power or shall be construed to be a waiver thereof (unless expressly waived by the City or SAAMS), but any such right or power may be exercised from time to time and as often as may be deemed expedient. 8. Indemnity and Exculpation 8.1 Limitation of City Liability. Except as provided in Section 8.4, the Indemnified Parties and the City, its officers, agents, and employees shall not be liable to SAAMS for any damage to the Site and Improvements, or for death or injury of any person or damage to any property, from any cause; however, this provision shall not affect the liability of any Indemnified Parties or the City, its officers, agents, and employees on any claim to the extent the claim arises from the negligence or willful misconduct of that person or entity. 8.2 Indemnity. Except as provided in Section 8.4, SAAMS shall indemnify, defend, and hold harmless the Indemnified Parties and the City, its officers, agents, and employees from all claims arising from death or injury of any person or damage to any property occurring in or about the Site and Improvements; however, this provision shall not apply to any claim to the extent the claim arises from the negligence or willful misconduct of the person being indemnified. SAAMS' obligation to hold the Indemnified Parties and the City, its officers, agents, and employees harmless shall be limited to the sum that exceeds the amount of insurance proceeds, if any, received by the person being indemnified. 8.3 Site Conditions. Except as provided in Section 8.4, SAAMS agrees to accept the Site as it is at the commencement of the Term of the Original Agreement. The City shall not be responsible for the property of any third party that may be on the Site at the commencement of the Term of the Original Agreement. Except as provided in Section 8.4, the City makes no 3nw1N1J tuvirIN"LL) AND XE; i IAI'ED AGREEMENT FOR LEASE OF TRACT 2A, Page 23 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 67 covenants, representations, or warranties respecting the condition of the Improvements, or of the soil or subsoil or any other condition of the Site. 8.4 Environmental Matters. SAAMS certifies to the City and agrees as follows: 8.4.1 Knowledge of Hazardous Substances. SAAMS has no knowledge, based upon SAAMS' operations on the site and upon the Phase I Environmental Assessments attached hereto and incorporated herein as Exhibit "B," of (i) the presence of any Hazardous Substances on the Site, or (ii) any spills, releases, discharges, or disposal of Hazardous Substances that have occurred or are presently occurring on or on to the Site except as disclosed on the environmental assessments and reports attached hereto as Exhibit "B." 8.4.2 Prevention of Future Releases. SAAMS will not cause or permit the Site and Improvements to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce, or process any Hazardous Substances except in compliance with all applicable Environmental Laws, nor shall SAAMS cause or permit as a result of any intentional or unintentional act or omission on the part of SAAMS the release of any Hazardous Substances on the Site. 8.4.3 Compliance with Environmental Laws. SAAMS will at all times and in all respects use its best efforts to comply with all Environmental Laws. 8.4.4 Notice. SAAMS agrees to immediately notify the City if SAAMS becomes aware of (i) any Hazardous Substances or other environmental problem or liability with respect to the Site, or (ii) any lien, action, or notice resulting from violation of any of the laws, regulations, ordinances, or orders defined as Environmental Laws. Subject to the provisions of Section 8.4.7 of this Agreement, at SAAMS' own cost, SAAMS shall take all actions which are necessary or desirable to clean up any and all Hazardous Substances affecting the Site. . 8.4.5 Indemnification. Subject to Subsection 8.4.7, SAAMS shall indemnify, defend, and hold the City harmless from and against any and all claims, demands, damages, losses, liens, costs, and expenses (including attorney's fees and disbursements) which accrue to or are incurred by the City arising directly or indirectly from or out of or in anyway connected with (i) the inaccuracy of the certifications contained in this Agreement; (ii) any activities on the Site during SAAMS' past, present or future possession or control of the Site which directly or indirectly resulted in the Site being contaminated with Hazardous Substances; (iii) the discovery of Hazardous Substances on the Site whose presence was caused during the possession or control of the Site by SAAMS; and (iv) the clean-up of Hazardous Substances on the Site. 8.4.6 Survival of Representations and Warranties. The representations, warranties, and covenants of SAAMS set forth in this Agreement, including without limitation the indemnity provided for in Section 8.4.5 above, are separate and distinct obligations from SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 24 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER SAAMS' obligations otherwise provided for herein and shall continue in effect after the expiration of this Agreement. 8.4.7 Pre -Existing Conditions. Nothing in this Agreement shall cause SAAMS to have any obligation or liability arising from Hazardous Substances whose presence on the Site occurred prior to the effective date of the Prior Agreements,. 9. _Sublease or Assignment. SAAMS shall not sublease or assign all or any part of the Site or the Improvements or any of its interest under this Agreement, except as provided in this section. However, SAAMS may permit others to occupy the interior of the Improvements for purposes consistent with use of the Site and Improvements for a marine research, rehabilitation and education facility, including without limitation conducting research and operating concessions to accommodate visitors. 9.1 Subleasing. SAAMS may sublease any part of the Site subject to all of the following conditions: sublease. 9.1.1 SAAMS shall provide the City with a copy of the essential terms of each 9.1.2 All subleases shall be for uses that are accessory and subordinate to the use of the Site and the Improvements for a marine research, rehabilitation, and education facility. 9.1.3 The sublease will not cause the withdrawal by the Internal Revenue Service of recognition of SAAMS as an organization described in 26 U.S.C. §501(c)(3). 9.2 Assignment. Any assignment by SAAMS of any of its interest under this Agreement shall be subject to approval by the City. Such approval shall not be withheld if the City, in its sole discretion, determines that the assignment will not subject the City to cost or liability under the Cooperative Agreement or otherwise. 10. Miscellaneous. 10.1 Permitted Encumbrances. During this Agreement, SAAMS shall not, without the prior written consent of the City, which consent shall not be unreasonably withheld, grant a security interest in (i) all goods, inventory, equipment, and fixtures used or acquired for use on the Site and Improvements; (ii) all accounts, related to the Site or Improvements, owned as of the effective dates of the Prior Agreements or at any time subsequently acquired by SAAMS; (iii) all general intangibles, related to the Site or Improvements, owned as of the effective date of the Prior Agreements or at any time subsequently acquired by SAAMS; and (iv) all proceeds of such goods, inventory, equipment, and fixtures, accounts, and general intangibles. ` SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 25 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 10.2 No Implied Waiver. In the event any agreement, covenant, or condition contained in this Agreement should be breached by either party and thereafter waived by the other party; such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 10.3 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. 10.4 Notices. Any and all notices required or permitted under this Agreement, unless otherwise specified in writing by the party whose address changes, shall be addressed as follows: City: City of Seward ATTN: City Manager P. O. Box 167 (City Hall, 5th & Adams) Seward, Alaska 99664 SAAMS: Seward Association for the Advancement of Marine Science ATTN: President and CEO P. O. Box 1329 (301 Railway Avenue) Seward, Alaska 99664-1329 WITH COPY TO: Seward Association for the Advancement of Marine Science ATTN: Chairman of the Board P. O. Box 1329 (301 Railway Avenue) Seward, Alaska 99664-1329 All notices permitted or required to be made under this Agreement shall be in writing and shall be deemed made at the time mailed to the address provided above by certified mail, delivered by overnight express service, or hand delivered. Failure of an addressee to receive said notice will not nullify and/or void a notice as long as such notice was sent pursuant to the terms of this Agreement. 10.5 Parties in Interest. Nothing in this Agreement expressed or implied is intended or shall be construed to confer upon any person, firm, or corporation, other than the parties hereto, any right, remedy or claim, legal or equitable, under or by reason of this Agreement, this Agreement being intended to be and being for the sole and exclusive benefit of the parties hereto. 10.6 Time of Essence. Time shall be of the essence of this Agreement. SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 26 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 70 10.7 Headings. The Section headings contained herein are for convenience and reference and are not intended to define or limit the scope of any provision of this Agreement. 10.8 Law Governing Construction of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Alaska. 10.9 Exclusive Forum and Venue. Any actions or judicial proceedings arising out of this Agreement shall be filed and prosecuted in the Superior Court for the State of Alaska, Third Judicial District, at Anchorage. The parties hereto affirmatively waive the right to trial by jury. 10.10 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 10.11 Integration and Modification. This document contains the entire agreement of the parties hereto. All negotiations, statements, or representations, warranties, and assurances, whether oral or written, which are in any way related to the subject matter of this Agreement, and the performance of either party hereto, are merged and integrated into the terms of this document. This Agreement may not be modified or amended except by a writing signed by both parties hereto, and any proposed amendment or modification is without effect until reduced to a writing signed by both parties. 10.12 Additional Documents. The parties agree to execute any additional documents which may be necessary in order to effectuate the terms of this Agreement. 10.13 Relationship of Parties. The City and SAAMS are distinct and independent corporate entities. The parties understand and agree that SAAMS was incorporated as a private nonprofit corporation for the purpose, among others, of developing, constructing and operating a marine research, rehabilitation and education institution to be called the Alaska SeaLife Center. This institution was to be operated within the facility now defined in this Agreement as the Improvements, which though owned by the City due to the requirements of the Cooperative Agreement and EVOS Requirements, was built for the specific purpose of housing the institution that SAAMS was to operate. Nothing contained herein shall be deemed or construed to make the parties hereto partners or joint venturers, or to render either party liable for any of the debts or obligations of the other, except as otherwise described in this Agreement. 10.14 Other Activities. Except as this Agreement expressly provides otherwise, nothing in this Agreement shall restrict SAAMS in engaging in activities other than the operation of the Site and Improvements, including without limitation owning, leasing or managing real property other than the Site and Improvements, and entering into contracts with other parties in furtherance of its corporate purposes, and nothing in this Agreement confers upon the City any right or obligation to supervise or approve SAAMS' engaging in any such other activities, or SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 27 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 71 subjects SAAMS to any obligation to submit to such supervision or approval. Notwithstanding the above, SAAMS represents and warrants to the City that SAAMS will not take any action, or fail to take any action, that will have a material adverse effect on SAAMS' performance of its primary corporate purpose and mission as described in Subsection 2.2.10 of this Agreement. 10.15 Use of the Name "Alaska SeaLife Center". The City and SAAMS recognize and acknowledge that the name "Alaska SeaLife Center" is both a defined term in the Cooperative Agreement and a registered service mark of SAAMS under which SAAMS does business at the Site and Improvements. The City acknowledges and agrees that SAAMS may accept grants or gifts that third parties make to the "Alaska SeaLife Center" as if such grants or gifts were made to "SAAMS." Upon termination of this Agreement, to the extent permitted by the grantor or donor, SAAMS shall assign to the City all grants and gifts that are intended for the Site and Improvements. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first written above. SAAMS: SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE, an Alaska nonprofit corporation By: ' Its: GE 0 CITY: CITY OF SEWARD, ALASKA (SEAL) ATTEST: City Clerk SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, Page 28 of 30 WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 72 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Tract 2A, WATERFRONT TRACTS, according to Plat No. 95-13, Seward Recording District, Third Judicial District, State of Alaska. �- SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 73 EXHIBIT "B" ENVIRONMENTAL ASSESSMENT REPORTS EXHIBIT B SECOND AMENDED AND RESTATED AGREEMENT FOR LEASE OF TRACT 2A, WATERFRONT TRACTS AND THE LEASE, OPERATION AND MAINTENANCE OF THE ALASKA SEALIFE CENTER 74 i PHASE I SITE ASSESSMENT ALASKA SEA LIFE CENTER S10, T1S, R1 W, SM WT 2,3, & East Port, of I Seward, AK Prepared for Peratrovich, Nottingham & Drage, Inc 1506 west 36th Avenue Anchorage, AID 99503 November 11, 1993 PrePazed by ENVIRONMENTAL J, ENGINEERINNRTECInc. G ®ON ULHANTS P•O• Box 72020 Fairbanks, Alaska 99707 907 452-5688 Fax 452-5694 75 ENVIRONMENTAL & ENGINEERING CONSULTANTS • ° 452-5694 P.O. Box 72020 ° Fairbanks, Alaska 99707 I (g07) 452-S6B8 FAX (907) ° November 11, 1993 Peratrovich, Nottingham & Drage, Inc. 1506 West 36th Avenue Anchorage, AK 99503 Ate: Douglas Kenley RE: Phase I Site Assessment Section 10, Township 1 South, Range 1 West, Seward Meridian Waterfront Tracts 2,3, and Eastern Portion of 1 Seward, AK Dear Mr. Kenley: Attached is a report of our 'investigation, findings, analysis and opinions regarding the Phase I Site Assessment (SA) and limited site sampling of the property located at the Waterfront Tracts 2,3 and the eastern portion of Tract 1 of Section 10, Township 1 South, Range I West, Seward Meridian, subsequently referenced as "the Property.. The purpose of our investigation was to identify significant environmental liabilities or concerns that would have a major impact on the financial condition of the property and its proposed improvements. It is our understandingthat the information will be used to ascertain environmental concerns that would impact construction of the Alaska Sea Life Center (ASLC). Based on the analysis of the investigation s findings as well as the considerations and assumptions set forth in the report, we are of the opinion that: t Considering the site's: 1) extensive history as a railroad yard and industrial site, 2) confirmed solid waste debris and Hydrocarbon concentrations and 3) fuel storage tanks, the Property has been rated as "Medium Risk" and warrants additional investigation. • This investigation has found the potential for significant hazardous wasteimaterial contamination on -site to be minimal. Detectable levels of Total Petroleum Hydrocarbon (TPH) concentrations, in the 200-300 ppm range, have been found in sampling throughout the site, both in previous assessments and in this effort. These reported TPH concentrations may contain a biogenic hydrocarbon component and are not considered significant. The identified presence of TPH throughout the site, however, generates concern that areas of high TPH concentration may exist. W 0 Multiple Underground Storage Tank earthquake, exist on site and/or adjacent to he systems, some in service since before the 1964 of these UST systems have been evaluated using rccon em Based on available information, none i P ary UST assessment. � It is recommended that, during the desn Within the proposed building footprint. The work scope sho1uld include random to address identified concerns onal assessment efforts be completed tion of site work taking into account acceptable levels of project risk and uh�av�lable budg et. eton coand nstruction, le bile Although the findings of this limited g as NORTEC,Ws opinion that the identified con�erns are not sessm a severity that would require or cancellation of the r0 t warrant �ul analysis, it is routinely addressed during �� Project' Properly delineated e9 a delays g the design , all concerns identified can be g and construction phase without significant project impact. The unavailability of the prior Site Assessments to NORTEC']y before examination and the budgetary constraints of the Pro'ect have limited o the environmental conditions of the Property. In the preparation of iced we conducted our site our ability to investigate we have made certain assumptions based on the investigations findings. It a our opinion these assumptions are reasonable report and these opinions, work scope was restricted to a Ph d adequate for the purposes of this reportthat conditions may differ. Our primary considerations se I and asssment sumptions asite re presented . detail el the attached report.P g• Actual site in the NORTECH Environmental You and PN&D. & Engineering Consultants (NOR;rEC collection and resolution wool project concerns, like to thank all the individuals whohas enjoyed WOrlcan9 with assisted NORTECH in data We trust that this information is sufficient for Your ns questions or we can be of further assistance, plea connttac mee present time. If you have any i Sincerely, 1 Hargesheimer, PE, DEE 77 i TABLE OF CONTENTS [ .0 INTRODUCTION .......................... 2.0 METHODOLOGY ................ • • " " ' " ' • " 2.1 Assessment .......... • . • • 2.2 Site Sampling ............................ . 3.0 BACKGROUND .......................... 3 3.1 Site Location .. ............................. .......... 3 3.2 Physical Setting ..................... . ......... ........... 3.3 Site Conditions .............................. . HISTORY AND INTERVIEWS ................. 4.0 SITE 9 4.1 Past Use and Ownership ................... ....... 9 4.2 Interviews with Key Site Personnel ............................. 9 4.2.1 Mr. Kerry Martin, City of Seward Planning Department ......... 4.2.2 Mr. Darryl Schaeffermeyer, Seward Association for the 9 Advancement of Marine Science ......................... 10 .... 4.2.3 Mr. Tom Smith, IMS Facilities Manager ................... 4.3 Municipal Records ............................. . 10 4.3.1 City of Seward Planning Department ..................... 4.3.2 City of Seward Engineering Department . • • • ... • ' ' 10 4.3.3 City of Seward Electrical Department .. • • • • • . • • ' ' ' 11 4.3.4 City of Seward Utilities Department ....... • • • • • ' . . . . 11 4.4 1964 Good Friday Earthquake . . . . 11 4.5 Environmental Protection Agency .................. • • • • • ' ` ' . . . 13 4.6 Alaska Department of Environmental Conservation .. • • • • • .. ..... PREVIOUS INVESTIGATIONS .............................. 13 5.0 .. 1313 5.1 ESL Site Assessment ................................... 5.1.1 General Area ........................... .. 14 5.1.2 Tract 2.................................. ....... 15 5.1.3 Tract 3 . ......................................... 15 5.1.4 Tract ..................................... 15 5.1.5 Property Across Railway venue ...... . . . ............ 16 5.2 HLA Site Assessment ..................................... 5.2.1 Pre -Exxon Use ........................... . 5.2.2 Exxon Use ............................... 16 5.2.3 Surficial Soils Analysis and Excavation ................ RECONNAISSANCE AND SAMPLING ........... • 17 6.0 SITE 17 ................ 6.1 Visual Inspection ................... .. 17 6.1.1 Tract 1 .......................................... .......... 16 6.1.2 Tract 2 6.1.3 Tract 3 • ...... . ........ ... . 6.2 6.1.3Tract 18 Surrounding Land Use .. , .. 19 6.3 Air Photos 6.4 Borehole Sampt n 21 g 21 TO LABORATORY 22 RESULTS ..... . g-O ANALYSIS OF s.l 22 FINDINGS ....... Total Petroleum HYdrocarbons On -Site , 8.2 Other Hazardous Wastes 24 8.3 Fuel Storage Tanks' 25 8.3.1 Former Service Station Across 27 8.3.2 Heating Oil Storage Tanks . , ...... Y Avenue , . 27 27 9•0 CONCLUSIONS . 27 AND RECOMMENDATIONS ...... 11.0 LIMITATIONS............ ........... 28 29 Appendix A: NORTECH Pro ert Appendix B: p Y Assessment Services Background Material -- EPA & ADEC Appendix C: Laboratory Results Appendix D: Otter Rescue Center -- __ Environmental Services Limited Report Appendix E: Otter Rescue Center Harding Lawson Associates Report 7a Alaska Sea Life Center NORTECH November, 1993 Phase I Site Assessment 1.0 INTRODUCTION NORTECH assisted PN&D in the evaluation of the property located at waterfront Tracts 2,3 and the eastern portion of 1 of Section 10, Township I South, Range I West, of the Seward Meridia by completing a Phase I Site Assessment (SA), as well as a limited site -sampling iort. T s for the SA was in accordance with our letter proposaalldat P ugust initial scope of our servce 10, 1993 and revised per our letter of August 11, 1993. As stated in this proposal SA was not to include building` inspections, but rather a limited site inspection rev siew it available material on the past uses and current condition of the Property, and sampling of geotechnicai bore holes being completed by PN&D. We understand the information will be used by PN&D and investors to ascertain the risk associated with environmental concerns in constructing the Alaska Sea Life Center on the Property. This report summarizes our investigation, findings, analyses, and opinions regarding the environmental condition of the property. The project scope and extent of our examination was not of a depth necessary to reveal all environmental issues. It was, however, considered sufficiently thorough to identify major environmental concerns associated with the proposed construction. Information is provided within the report to assist in the effort of "all appropriate inquiry into the *� previous ownership and uses of the Property consistent with good commercial or customary practice" to address liability determined by current environmental legislation regarding real estate. The environmental statutes that are most frequently encountered in real estate and considered in this investigation include the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or "Superfund"), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act and Clean Water Act. Included in this report are: or A brief project background description and an explanation of the purpose and the scope of work. rmation including review of regulatory agency files, oral or historical data reviews and info reports, and property ownership records. or Records of site -visit observations, investigations and interviews completed with involved personnel. Analysis of information provided, including classifying the site into one of four degrees of risk of having environmental concerns. .s H's opinion of whether there is significant Conclusions are presented regarding NORTEC indication of contamination based on the findings. .r Recommendations are provided, where appropriate, for further investigation in order to delineate and characterize any significant indication of contamination. Page I i NORTECH Phase I Site Assessment 2.0 METHODOLOGY 2.1 Assessment Alaska Sea Life Center November, 1993 The Phase 1 SA was completed in accordance with NORTECH's standard Pro Services Scope of Work. A copy of the summaryi Property Assessment Upon completion of the historical research of the uses of entirety is closed in Appendix A. Proximity, NORTECH rates the site on its risk of having contamination and/or of being the source of contamination on -site. The risk categories are: No ris Property and those to close High risk. NORTECH cannot state with sure k' Low risk, Medium however, evaluate the probability with which this site was a source to con risk and surety that there is no contamination on -site. We can, This evaluation addresses the liability issue, which is key to determining who ultimathe area. tely responsible for costs of cleaning up any contamination. is Due to the urban nature of this site, the proximity the immediate vicinity of this site. We believe that this yas s has eion nsreduced dto the buildings in which we have investigated, i.e., those directly surrounding the pro Railway Avenue, have justified.O� Properties been primarily industrial in nature and are of concerincludn to ng this study. e Ones cross contrast, those sites further north, or up -gradient from this site, are residential in nature and less likely to have deleterious environmental impact. In Primarily commercial and 2.2 Site Sampling All field sampling efforts were completed in general accordance with NORTECjfs Q Assurance Program Plan (QAPP) for Underground Storage Tanks (US Quality specifically for UST investigations, includes Plan meets Alaska Deparsampling �' �O QAPP, written tment of Environmental Conservation Procedures to this project. The approved by the Department. The QAPP is available u ( � regulations and has been With ADEC. The information provided in the pon request from NORTECH and on file QAPP includes: • Organization and Responsibilities • Field Sampling Procedures • Analytical Procedures • Data Reporting • References Soil samples taken on the site were subjected to field screening analysis with an Monitor (OVM) which measures headspace concentrations of organic vapors in game Vapor Those samples showing the higher organic vapor concentrations were then submittedPer to Page 2 Ri NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 Commercial Testing & Engineering Laboratories (CT&E) in Anchorage for more detailed analysis. The laboratory is ADEC- and U.S. Corps of Engineers -certified to perform the required analysis and is located at 5633 "B" Street in Anchorage. Two different types of laboratory analyses were used: EPA Method 418.1 to detect Total Petroleum Hydrocarbons (TPH) and EPA Method 8020 to detect Aromatic Volatile Compounds. TPH is to some extent a misnomer; total petroleum hydrocarbons may be found in soils due to spillage of petroleum products onto soils, but they can also result from decay of certain natural substances such as peat. While EPA Method 418.1 will detect the presence of petroleum -related substances in soil, it will also detect biogenic hydrocarbons, hydrocarbons which are the by- product of biologic activity. Based on this test alone, it is not possible to differentiate the source of measured TPH between petroleum products or naturally occurring decay of organic material. 3.0 BACKGROUND NORTECH was retained by PN&D to complete a Phase 1 Site Assessment as well as a limited site sampling at the Property. Site investigations of a portion of the City of Seward Waterfront Tracts were conducted in October, 1993 as part of development plans for an Alaska Sea Life Center by the Seward Association for the Advancement of Marine Science (SAAMS). The investigations were conducted in order to identify any past, existing, and/or potential environmental concerns at the site. 3.1 Site Location The City of Seward is located on the eastern side of the Kenai Peninsula along the headwaters of Resurrection Bay, Section 10, Township 1 South, Range 1 West of the Seward Meridian in the Kenai Peninsula Borough. Figure 1 shows the subject site location. The subject site is located at the end of Third Avenue in Seward, immediately west of the City Dock. Figure 2 is a topographical map of the Seward Area, showing the location of the Property in Seward. The site consists of the eastern unimproved portion of City Waterfront Tract 1, a fenced unpaved parking area including the Teen Center approximately occupying Tract 2, and a fenced, paved, storage area approximately occupying Tract 3. A 6-foot break wall borders the subject site to the south along the shoreline of Resurrection Bay, and Railway Avenue borders the site to the north. Figure 3 shows the subject area, site improvements and proposed building footprint. Figure 4 details the utilities on -site. 3.2 Physical Setting Page 3 rM i L ppC1FiC "l-LAN ' oaAwiv:KiM VICINITY MAP Paa,,Ecr Na a3,as Environmental I&Engineering Consultants AS Ok'C. N0; ia5_v�C Pp- BOX 72p20 Fairbanks Alasko 99-707 LC SITE ASSESSMENT 307) d52-5688 FAk: !9(I71 ear �.._- R� I Old MIIN (Beer I Lowell iC 3 A 3 u a In ttes Environmental do Engineering Consultants P.O. BOX 7202o Foirbonks,^Alos kc 99�7007 Creek Are& Road Area i I July Creek res THIS MAP TAKEN FROM GROWTH MANAGEMENT STRATEGY REPORT, SIMPSON USHER JONES, ANCHORAGE AK 1979 FIGURE SEWARD AREA MAP I ASLC SITE ASSESSMENT DRAWN:MNB LC cc N. NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 The City of Seward is located on the eastern side of the Kenai Mountains which transect the Kenai Peninsula. The City occupies the northwestern margin of Resurrection Bay on the Gulf of Alaska. Local physiography consists of nearby mountains to the east and west and Resurrection Bay to the south and east. Depths in Resurrection Bay extend to 900 feet and mountain elevations are as high as 4,000 feet. Lowell Creek is the main drainage for the downtown Seward area. Figure 2 is a topographical map of the Seward Area. Seward is constructed on the Lowell Creek alluvial fan and alluvial deposits of the Resurrection River. Lowell Creek drains the ice fields to the west and contributed large amounts of detritus to the alluvial deposits on the south (downtown) side of Seward. In the past, Lowell Creek drained down Fourth Street and into the Bay until construction of an aqueduct diverted the Creek west of the downtown area. Seward has a maritime coastal climate with 75 inches per year average precipitation. The mean annual temperature is 43' F, with a winter average of 300 F and a summertime average of 54' F. The average tidal range at Seward is approximately 9 feet with a maximum range of 15 feet at certain times of the year. 3.3 Site Conditions The subject site slopes south towards the shoreline. Surface and subsurface water flows from north to south across the site. The portion of Tract 1 under consideration is essentially unimproved and used for outdoor storage of IMS facility equipment. The area is bordered on the east by a chain link fence and to the south by a six-foot riprap sea wall. Underground sewer and water utilities and overhead electric which serve the IMS facility on the western portion of Tract 1 are located on the west side of the Property. An underground heating fuel storage tank and underground fuel lines also exist on the west side of the site near the Machine Shop. The Tract 2 area is a fenced parking lot owned and operated by the City of Seward. The City Teen Center is located at the northwest corner of the lot. The area had previously been the subject of environmental investigations as part of the Seward Otter Rescue Center during the 1989 Exxon Valdez oil spill. The Tract 3 area is fenced on three sides and bordered by a six-foot riprap seawall on the waterfront. The site is paved with asphalt concrete and used for outdoor storage of fishing equipment. It is leased by the City of Seward to Northern Stevedoring dt Handling Corp. Page 8 Q7 I NORTECH Phase I Site Assessment 4.0 SITE HISTORY AND INTERVIEWS 4.1 Past Use and Ownership Alaska Sea Life Center November, 1993 City records indicate that the Property was transferred by the Alaska Central Railroad Company to the City of Seward for $10 and other good and valuable considerations in 1968. had owned the Property since buying it from Frank Ballaine in 1905. The site was used The Railroad ad a railroad yard from 1906 until the Good Friday Earthquake of 1964, at which time the railroad yard was destroyed. The City has owned the Property since 1968 and has leased out portions Of it. Currently, a portion of the Property is leased to Northern Stevedoring & Handling Corporation. 4.2 Interviews with Key Site Personnel Key site personnel were interviewed to discove conditions at the site. r any past, present or potential environmental 4.2.1 Mr. Kerry Martin, City of Seward Planning Department Mr. Kerry Martin, City of Seward Community Development Director, was interviewed by NORTECH to obtain a general history of City of Seward activities and ownership of the s Property. Mr. Martin indicated that the City Waterfront Trsubject acts had been given to the City by uthe hquake. He also indicated that the area Federal Government (Alaska Railroad) after the 1964 Eart was extensively used by the military during World War II. A review of information in the City archives discovered no maps or documents associated with past use of the subject site. Mr. Martin indicated that in 1989, Exxon entered into an agreement with the City of Seward to lease part of Tract 2 (behind the Teen Center) in order to establish an Otter Rescue Center (ORC). He also indicated that part of the lease agreement involved pre_ and post -lease environmental site assessments. He did not have copies of these documents. Mr. Martin had no knowledge of any other environmental documents or conditions associated with the subject site. 42 2 Mr. Darryl Schaeffermeyer, Seward Association for the Advancement of Marine Science Mr. Darryl Schaeffermeyer, Seward As for the Advancement of Marine Science (SAAMS) site manager, was interviewed by NORTECH. f descriptions of the history and use of Institute of Marine Science (IMS) facilities. Mr. Schaeffermeyer provided brief Schaeffermeyer had no knowledge of environmental conditions associated with the subject site or surrounding areas. Page 9 4 N®RTLCH Phase 1 Site Assessment 4.2.3 Mr. Tom Smith, IMS Facilities Manager Alaska Sea Life Center November, 1993 Mr. Smith was interviewed concerning condition of the underground heating fuel tank by the Machine Shop on Tract 1. Mr. Smith believes that the tank was an old railroad tank car which had been buried for service as an underground storage tank. He indicated that the tank had been in use there since before the 1964 earthquake. He estimated the capacity of the tank as 10,500 gallons. Mr. Smith also indicated that underground fuel lines serving the Hood Lab Building were connected to the tank. The approximate location of these lines is indicated on Figure 4. 4.3 Municipal Records Seward municipal employees were interviewed to obtain salient information regarding past or present environmental conditions at the site. Where possible, municipal records were examined for infoirttation regarding areas of environmental concern. No evidence of illegal discharges, spills, hazardous substances, petroleum products, or environmental conditions which indicate an existing release, past release, or material threat of a release was discovered from municipal sources in connection with the subject site or surrounding area. 4.3.1 City of Seward Planning Department An information request was made to the City Clerk's Office to discover records of past ownership, deeds, and assessment records pertaining to the Property. No environmental liens were found on the subject site. City of Seward archives were searched with the assistance of Mr. Kerry Martin to discover any information pertaining to the site prior to City ownership. Some maps describing the site during Alaska Railroad ownership were reviewed but no descriptions of structures or specific use information was noted. 4.3.2 City of Seward Engineering Department Ms. Marilyn Reynolds, City Engineering Office employee for 12 years, indicated no knowledge of environmental conditions or documents pertaining to such for the Property or surrounding area. Documents reviewed at the Engineer's office included Disaster Relief Service Reports prepared in 1964 after the Earthquake and after the flood in 1956. No areas of environmental concern associated with the subject site were identified. 4.3.3 City of Seward Electrical Department Mr. Dave Calvert, head of the City Electrical Department, was interviewed regarding the overhead electrical utilities on -site. He indicated that all the electrical transformers had been Page 10 NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 tested for polychlorinated biphenyls (PCB's) and no PCB -containing transformers were present on -site. He has no knowledge of any rupture or release of transformer oil at the site. 4.3.4 City of Seward Utilities Department Mr. Lloyd Welch of the City's Utility Department indicated that the Institute of Marine Science (IMS) was served by City utilities (water and sewer) and that no citations for illegal discharge had ever been issued. He also indicated that he had no knowledge of past or present leaks, discharges or environmental conditions on or near the subject site. 4.4 1964 Good Friday Earthquake' At 5:36 PM on Good Friday , March 27, 1964, a great earthquake with a Richter magnitude of 8.4 to 8.6 struck southcentral Alaska. The ground motion did some building damage in Seward, but its greatest immediate effect was the rupture of several large fuel storage tanks on the waterfront, which quickly ignited, spilling blazing fuel that was spread by the waves and burned on the water for half a mile along the waterfront. Then 4,000 or more feet of waterfront north of Washington Street slid into Resurrection Bay, taking with it, among other things, 14 of the Standard Oil fuel storage tanks within one third of a mile of the Property under investigation. From the submarine landslide, water "boils" were created in the Bay which formed a large wave ed that hit the Seward waterfront. Then, about 30 minutes later, a seismic sea wave enter Resurrection Bay, increasing in height as it entered shoaling water, and inundated the low areas of Seward. In most places, this wave was estimated to be 25 to 35 feet above the water surface, which was at low tide at the time. This second wave was higher and wave and caused most of the wave damage in Seward. more forceful than the first Significant damage was done to the Property, then a railroad yard. One half of one railroad transit shed was washed away and the larger transit shed was destroyed. Rails were ripped up and box cars, tank cars and even a train engine were hurled about pellmell. The damage to the Seward waterfront is detailed in Figure 5. 4•S Environmental Protection Agency A request was submitted to the Environmental Protection Agency (EPA) asking for any information in their files of contaminated sites (see Appendix B). The EPA conducted a 'This section has been summarized from the following publications: 1) After A .r��r Report: Aiacka r:�,.,.a Fridav haua a Alaska District, U.S. Army Division, January 1968. 2) U.S. Geological Survey Circulaz 49I, Washington, 1964. 3) Seward Quake, Lantz and Kirkpatrick, Seward, AK 19� Page 11 D 20a 47 600 8d6I00d FEET APPROXIMATE SCALE, IN FEET N Base map and Photo interarelatio by W. H. Condon, 1964 Map of Seward Showing Damage by Submarine Landslide and Large Waves Installations or Buildings I. Alaska Railroad Transit Sheds (Heavy damage) 6. Engine House 2. Boiler House 7. Army Docks and Warehouses (Destroyed) 3. Depot 8. San Juan Dock, Cement Plant, Marine Ways 4. Power Plant (Burned) (Destroyed) 5. Standard Oil Docks and Warehouses 9. Small Boat Harbor, City Dock, Scow Grid (Destroyed) (Destroyed) Pow smorellne Installations or buildings removed by sutmaarl ne landslides, and large eaves Direction of wave motion as Indicated by bent posts and displacement of objects —?-r— Earth—frectures Rare fractures than are shown occur along the Eater —front between Adams and mnroa Streets lox cars ® ruEl TAasS Map taken from "Alaska's Good Friday Earthquake, March 27, 1964: A Preliminary Geologic Evaluation," U.S. Geological Survey Circular 491,Washington, 1964. �rEnvirenmentol & Engineering ConsullEll EFFECTS OF 1964EARTHQUAKE DESIGN:JH PRD.[CI N0:93145 FeGU �'r P.O. BOX 72020 Fairbanks, Alaska 997ON SEWARD DRAWN'MNB DWG.NO 145_86 (907) 452-5688 FAX: (907) 452-569ASLC SITE ASSESSMENT DATE: 10-28-93 SCALE r d: NORTECH Phase 1 Site Assessment Alaska Sea Life Center November, 1993 address/zip code search of their data bases in the Air and Toxics, Water and Hazardous. Waste Divisions. No information was reported in the Air and Toxics Division. A printout from the Comprehensive Environmental Response, Compensation and Liability Information System (CERLIS) database showed only one listing in Seward, which is not in the proximity of the Property. A list of hazardous waste generators in Seward who have notified the EPA is available from the RCRA Database; no violations have been reported. 4.6 Alaska Department of Environmental Conservation A request was submitted to the Alaska Department of Environmental Conservation for any information which it has about contamination at or near the site under consideration. A copy of their list of Seward -related files is found in Appendix S. Unfortunately, their listing of these files does not include the specific location in Seward. Reports on the Alaska Railroad's USTs, Seward Hotel UST, and City of Seward USTs were reviewed in detail. No indications of environmental conditions which may affect the subject site were indicated. 5.0 PREVIOUS INVESTIGATIONS that was then under construction to be used by Exxon as In 1989, Environmental Services Ltd. (ESL) prepared a site assessment of a an Otter Rescue Centre (4RC). This portion of Tract 2 SA documented the condition of the Property prior to Ex an occupancy of the site (although sitework had actually already begun). A second site assessment was completed by Harding Lawson Associates (HLA) at the end of Exxon's use of the Property. These reports are discussed individually below. These reports are contained in their entirety in Appendixes D and E. 5.1 ESL Site Assessment ESL produced a report summarizing their findings of the existing environmentally relevant land uses of this and neighboring properties and the results of their soil samples. The following summarizes ES1:s findings of concern, stating their opinions. This section should be construed only as H i findings and opinions; they have not been verified or critically evaluated by NORTECH in this section. 5.1.1 General Area The entire area under consideration has a history of commercial and industrial uses. Tracts 1-6 were used as a railroad yard from 1906 to 1964. This site was used extensively by the military during World War II. During the 1964 Earthquake and resulting tidal waves, the railroad yard suffered extensive damage and was abandoned by the railroad at that time. During that same Page 13 92 NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 Earthquake, several fuel tanks north of the Property were washed away, while others overturned and spilled large amounts of refined fuel which ignited. 5.1.2 Tract 2 Teen Center The Teen Center, in the northeast comer of Tract 2, has an underground storage tank which has probably been used for heating oil. Between 1979 and 1985, an above -ground heating oil storage tank (250-gallon capacity) was added to the facility. ESL found evidence of overfilling and spillage around this above -ground tank, which was confirmed by a sample result from beneath the tank with a measured total petroleum hydrocarbon concentration of 15,600 parts per million. Railroad Artifacts Prior to the Railroad's 1964 cessation of use, this was a railroad storage area. Many tracks ran across the property and goods were stored beside the tracks. Conductivity analysis suggests that tracks remain buried on the site. Sewers and Storm Drains Two active sewer lines are on or near the property. One runs northeast to southwest across the Property, parallel to Railway Avenue. Another is assumed to he underneath Railway Avenue. An abandoned sewer line runs from north to south on the Property, but was observed to be used as a storm drain. Another storm drain, reported by the City to be abandoned, runs northwest to southeast, but this, too, was speculated to be still in use. ESL felt that, because these sewers and storm drains have been in the ground since before the 1964 Earthquake, it is likely that they may leak and be depositing wastes from the rest of the City in this area. Drainage Ditch ESL observed a drainage ditch south of the northernmost rail in aerial photos from 1964. This ditch would have drained from Tract 4 onto Tract 2. It was observed to be partially filled in a 1975 aerial photograph and completely filled in a 1985 photograph. A subsurface conductivity analysis of this ditch was performed, leading ESL to conclude that this ditch was filled in part with some metallic debris such as 55-gallon drums. The filling of the ditch was done as part of a general filling of the lot, which has been ongoing since 1964, with most of the activity occurring in the 1980's. Page 14 9R NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 Storage Activities on Site Since 1964, this site has been used for materials storage and possibly equipment maintenance. Twenty-five 55-gallon drums were removed from the site for the construction of the ORC, some leaking oil -like substances. Otter Rescue Center The ORC was located on a portion of Tract 2. ESL states that there was no sewer connection for this facility at the time of their report. They also reported that the fill used for the ORC contained TPH, as verified by their sample results. sample Results Several soil samples were tested for polychlorinated biphenyls, but no detectable concentrations were reported. Several samples were taken at various depths about the site. All samples detected TPH. The concentrations of TPH ranged from a low of 4.6 ppm (called background concentration by ESL) to a high of 15,600 ppm directly under the above -ground storage tank of the Teen Center. These results are discussed in greater detail in conjunction with NORTEChi s sample results in the Analysis Section below. The locations of ESL's samples are shown in Figure 6. Sample results within Pit 6 found a significantly lower TPH concentration of 9.5 ppm in damp soil (at 8 feet in depth) than in wet soil (at 8.5 feet) of 93.1 ppm. ESL concl this that the ground water was contaminated. uded from 5.1.3 Tract 3 Tract 3 is a paved storage yard. Storage observed on it included 35 55-gallon drums. Six rusty drums had labels on them that they contained ethylene glycol. One of the unlabeled drums was leaking. A trailer was also stored on the lot. 5.1.4 Tract 1 This lot contained a large pile of creosote -treated logs. 5.1.5 Property Across Railway Avenue In addition to a warehouse and the Seward Machine Shop across Railway Avenue north of Tract 2, ESL reports the charred remains of a service station that had burned in 1988 or early 1989. The gas pump was still on -site, leading ESL to conclude that the underground storage tanks were Page 15 W NORTECH Alaska Sea Life Center Phase 1 Site Assessment November, 1993 still in the ground. As this service station was operating prior to 1964, these USTs would be more than 25 years old. The service station is higher than the Property and up -gradient from it. 5.2 HLA Site Assessment HLA undertook an evaluation of the portion of Tract 2 used by Exxon as the Otter Rescue Center. Their investigations were confined to the surficial soils of this area. The following are their observations and conclusions; NORTECH has made no attempt to critically evaluate them in this Section. 5.2.1 Pre -Exxon Use The Property was used by the Alaska Railroad as dock facilities prior to the 1964 Earthquake. The Railroad replaced the original wooden pier with a concrete dock prior to the 1964 Earthquake, building the new dock on the area south of Railway Avenue which had been filled with poorly sorted sand and gravel from Lowell Creek deposits. 5.2.2 Exxon Use The ORC was used from April 26 to October 1, 1989 to wash and care for oiled sea otters, other marine mammals, and sea birds. The Center consisted of animal husbandry trailers; sea otter cages, totes and pens; two personnel trailers; and miscellaneous storage trailers. Two below - ground 2,500-gallon collection tanks were located on -site, one to store fresh water for circulation and one as a wastewater collection tank. The wastewater collection tank was emptied periodically using a vacuum truck that transported the wastewater off -site for treatment and disposal. Exxon installed one above -ground 500-gallon heating oil tank at the site to heat the animal husbandry trailers. The tank was placed in a lined area surrounded by a gravel berm. An awning was constructed over the tank to protect it from rain and snow. A propane tank was used to heat the personnel trailers. The Center was only used during 1989, although it was left intact through the end of the 1990 cleanup season. 5.2.3 Surficial Soils Analysis and Excavation HLA was directed to evaluate the TPH concentrations in the near -surface soils of the ORC, the assumption being made that only these soils could have been impacted by Exxon's use of the Property for only 17 months. Soil samples taken near the surface in various locations around the Property were found to have TPH concentrations between 14.6 and 372 ppm. Several soil samples exceeded the then -applicable, ADEC-recommended, soil cleanup guideline of 100 ppm. Based on these results, it was decided to complete a soil removal program near the sample locations above the cleanup -guideline level. In addition to removing all improvements to the Page 16 qS i NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 property as the ORC was being demobilized in 1990, Exxon excavated approximately 1 ton of soil in these samples' general locations. A second sampling program of soils from 3 - 5 inches below ground surface around the Property found TPH concentrations ranging from 36 to 222 ppm. As 4 of the 10 samples significantly exceeded the ADEC-recommended guideline, Exxon decided to complete a second soil removal program at the site. Approximately 6 inches of soil from a large area of the Property in which the elevated sample results were obtained, about 230 tons of soil in all, was excavated and disposed. Prior to disposal, these soils were analyzed for chlorinated volatile hydrocarbons using EPA Method 8010. The only compound detected was tetrachloroethylene, found in only one of the two samples tested, at a concentration of 0.12 ppm. The excavated area was filled with new gravel. The source of the fill material was tested for TPH and reported to have a TPH concentration less than the detection limit of 20 ppm. 6.0 SITE RECONNAISSANCE AND SAMPLING 6.1 Visual Inspection r During October, 1993, NORTECH conducted a limited, visual site inspection of the property. A number of east -west trending railroad tracks were observed at or just below surface grade at several locations on the subject site. The Site's property boundaries, fencing locations, overhead electrical lines, and underground utilities are illustrated in Figure 4. and/or presence of toxic and/or hazardous substances. The site inspection was to identify any possible existing physical evidence of contamination Specifically, the site was inspected for evidence of the presence and location of surface spills or other visible contamination, underground tanks and lines, drum and chemical storage areas, existing water supply wells, existing ground water monitoring wells, or other indications of potential environmental concern. The visual site inspection identified no areas of significant environmental concern other than the underground storage heating fuel tank (UST/H), which is discussed in more detail in the following sections. 6.1.1 Tract I City Waterfront Tract 1 is occupied by the University of Alaska Fairbanks Institute of Marine Sciences (IMS). Several buildings exist on -site, including a warehouse building (half of a railroad maintenance building, the other half of which was washed away in the 1964 Earthquake and tidal waves), a machine shop facility (former generator building), a laboratory building and an office/research facility (Hood Laboratory). The Seward IMS facility is shore -based support for the marine research vessel Alpha Helix. The project site includes that area east se the shop Page 17 NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 and officelresearch facility buildings. No current improvements exist on the project site of Tract I other than the underground fuel storage tanks and piping, and it appears to be used primarily for outdoor storage. Light duty trucks, automobiles, and heavy equipment were being parked/ stored near the Shop Facility. Vent and fill pipes =j associated with _ an underground storage tank were Z observed adjacent the east side of the Shop Facility. The tank was measured to be Q eight feet in diameter, buried four feet below grade. A dark Photograph 1: Tract 1 Underground Storage Tank Area by Machine stain approxi- Shop mately four feet in diameter was noted around the fill pipe. Photograph 1 is of the tank area. The stained soil had a distinct diesel fuel odor. Site personnel report that the tank is a buried railroad tanker car and supplies heating fuel for the officel research building to the south. Approximate location of buried fuel line is illustrated on Figure 4. The southern portion of the subject site is primarily used for storage of marine equipment such as buoys, lines, nets, etc. It was also noted that a number of creosote -treated power poles were being stored in this area. Several transformers on poles for overhead electric lines were also observed. Locations of the transformers are indicated on Figure 4. 6.1.2 Tract 2 The Teen Center is located at the northeast comer of Tract 2. The building is approximately 16x40 feet and supported on a post and pad foundation. The heating fuel supply for this facility Page 18 97 i NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 appeared to be an approximately 300 gallon above -ground storage tank. No indication of leaks or spills such as vegetative stress were observed around the fuel lines or tank All fittings seemed to be tight and in good condition. No internal inspection of the facility was made. The remainder of Tract 2 is unpaved and designated as a City Parking facility. No appreciable stains or indications of a surface release were observed. The lot is surrounded by a 6 fo link fence. An abandoned rail track was observed running just inside and parallel to theot chain southern property fence. 6.1.3 Tract 3 Tract 3 is located Immediately south of Tract 2 and borders the City Dock to the west. It is en- closed on three sides by cyclone fencing. The southern (sea- ; ward) part of the Tract is protected sea- wall. a riprap a- ,. � wall. No Perma- nent structures or s , s improvements exist on the site. The area is used Photograph 1: Tract 3 Riprap'WVall Looking Toward I for outdoor stor- age for fishing as nets, crab pots, etc. Several steel marine storage containers were also observed equipment w such ith the other tracts, several pairs of abandoned rail tracks exist at or just below grade at the site. one boat, two automobiles, and some fish processing equipment were also stored on -site. No indications of petroleum, oil and lubricants (POL) or hazardous substance storage such as drums, etc. (other than automobiles and a boat) were observed. Page 19 K iULIL 4 R - i NORTECH Phase I Site Assessment 6.2 Surrounding Land Use Alaska Sea Life Center November, 1993 Site observation combined with site interviews and air photo interpretation was used to gather information about the primary activities associated with the surrounding properties. In general, the south Seward area immediately north of the subject site appears to be the City center, including main municipal departments (Planning, Engineering, Electric, commercial buildings, banks, hotels, bars, restaurants, and the Citylibrary. Re, Fire and Police), is found north of the City center. arY Residential housing The remainder of Tract 1 is occupied by the University of Alaska Institute of Marine Science. Four main buildings exist on -site including a warehouse, a machine shop facility (former generator building), a laboratory building and an office/research facility The primary purpose of the Seward IMS facility is shore -based su (the Hood Laboratory). vessel Alpha Helix. Phone interviews with Dr. I. Paul, IMS researchf ondh ate thate in inege wearch er, no significant quantities of hazardous substances are stored on -site." Dr. Paul also indicated that no radioisotopes were stored on -site, and when employed for scientific study, are brought from the IMS facility in Fairbanks. The warehouse east of the subject site is located on Tract 4 and is occupied by Northern Stevedoring & Handling (NS&H). An extension of Forth avenue to the City Dock separates the subject site from Tract 4. The site is owned by the City of Seward, along with Tracts 5 and 6 to the east. NS&H has occupied the warehouse facility and adjacent storage building since 1979. According to Jack Goodwill, NS&H general manger, the warehouse stores primarily fishing gear, as well as a grain terminal for the City of Seward and drill rig support equipment for ARCO. It was reported that no hazardous substances or wastes are stored or generated at the facility. Immediately northeast of the warehouse facility is the former Alaska Railroad Depot. The Depot rrently a tourist information center and gift shop. East of the depot is a public parking lot is cu and a City park. 6.3 Air Photos Site maps presented in this report were prepared primarily through aerial photo interpretation combined with site as -built surveys conducted by Ply&D. Conclusions drawn concerning pre - and post-1964 earthquake conditions were also aided by the use of aerial photographs. Air photo interpretation was also used to estimate the age of certain site improvements and past land uses not available through other historical sources. Dates of air photos reviewed include 1963, 1964 (post earthquake), 1979, 1985, and 1993. Significant conclusions drawn from the air photograph review of the site are as follows: Page 21 100 NORTECH Alaska Sea Life Center Prase I Site Assessment November, 1993 ► The subject site was used as a rail yard prior to the earthquake. Numerous switches and unloading facilities were observed on the subject site. ► After the 1964 earthquake, extensive damage was done to the buildings, rail yard, tankcars, and surrounding buildings. Numerous shipping containers were overturned and damaged. Many large -capacity above -ground fuel storage tanks were overturned north of the site. ► The gas station from previous reports was still active in 1985. A new building has been constructed on the site since then. ► The above -ground tank for the teen center was installed after 1979. 6.4 Borehole Sampling Borings were completed by Discovery Drilling Inc. using a truck -mounted CME 75 equipped with a 6" hollow -stem, continuous flight auger and a 340-lb. hammer -anvil assembly for driving the sampling barrel for soil sampling. Environmental sampling of the borings was accomplished concomitantly with geotechnical sampling. All field sampling efforts were completed in accordance with NORTECH's Quality Assurance Program Plan. All drilling equipment was cleaned prior to collection of environmental samples. Cuttings from each boring were returned to the drill bole. Boring locations were limited to those required for geotechnical investigation. Location of borings selected for environmental sampling are shown on Figure 6. Two samples were collected from each of the three selected borings for environmental investigations. One sample was collected from the unsaturated zone above the zone of seasonal water table fluctuation and one sample was collected at the water table from each boring. Samples were field screened using an OVM in order to select samples for laboratory analysis. The following section contains results of field screening and laboratory analysis. The OVM instrument employed during the field screening was calibrated prior to use in the field and calibration data entered into the fieldbook. Copies of all laboratory results are included as Appendix C. Logbooks, field notes, and chain of custody records will be maintained for at least three years by NORTECH. 7.0 LABORATORY RESULTS Laboratory analysis of a selected number of soil samples was completed as a screening effort to help identify existing or previous environmental conditions at the site. Commonly, many environmental pollutants associated with industrial and commercial activity (fuels, waste oils, solvents, lubricants) are associated with refined petroleum products. Analysis for TPH by EPA Page 22 101 0 N NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 Method 418.1 was employed to detect the presence of hydrocarbons at the site. Additionally, EPA Method 8020 analysis for aromatic volatile organics was run concomitantly with TPH for one sample to better characterize any contamination detected in samples collected at the water table. Laboratory analysis of soil samples was completed by CT&E. All QC samples and calibration checks were reported within acceptable limits for all analyses performed. All holding times were met, and samples arrived at the laboratory preserved and in good condition. No spikes, surrogates, blanks, or calibration checks were reported out of QC limits. Copies of laboratory data transmittals and custody forms are presented in Appendix C. The following table summarizes the results of laboratory analysis. Table 1 Summary of Laboratory Results Sample I.D. Number Organic Vapor Concen TPH (418.1) (ppm) 8020 BTEX (ppm) Depth (feet) Sample Description S-07-05 13.9 274 * 5-6.5 sndy bl GW grvl., mod org n/o S-07-15 3.3 * * 15-16.5 water table, sndy bl GW grvl.n/o S-08-05 4.7 * * 5-6.5 sndy bl GW grvI, n/o S-08-13 7.1 27.3 ND 13 114.5 water table sndy bl GW grvl.n/o S-10-05 10.7 64.5 * 5-6.5 sndy bl. GW grvl. w/<20%slt S-10-14 3.3 * * 14-14.5 water table sndy bl GW grvl n/o * = Not Analyzed, ND = Non -Detect (Below Practical Quantification Limit), org = organics, n/o = no hydrocarbon odor, grvl = gravel, slt = silt, bl = black, sndy = sandy 8.0 ANALYSIS OF FINDINGS The following analysis of the investigation findings is based on the information reviewed, laboratory results, our professional experience, and the considerations and assumptions set forth in the report. Several aspects of this Property warrant its rating by NORTECH as "Medium Risk." This risk category indicates that potential contamination has been found and further investigations are warranted. The industrial nature of this site, as a railroad storage yard when the Railroad was operating at this site and for other storage since the Property was given to the City, warrant environmental concern. In addition, the 1964 Earthquake may have added petroleum -related Page 24 103 NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 compounds to the site with the rupture of storage tanks nearby and the disappearance of 14 others. Exxon, although taking precautions to minimize the negative environmental impact of the Otter Rescue Center to the site, focused their remediation efforts as they were vacating on only the surficial soils. The assumption that they could only have impacted the immediate ground surface soils is questionable, due to Exxon's previously buried tanks and leaching potential of contaminants from the surface. Levels of TPH have been found which are not a cause for concern in and of themselves, but may be an indication of even greater concentrations elsewhere on the Property. Several fuel storage tanks exist on the Property and in its immediate vicinity which are of an age and nature that warrant further assessment of their environmental impact. These points are discussed in greater detail below. 8.1 Total Petroleum Hydrocarbons on -Site The analysis of our limited sampling is better viewed in conjunction with the sampling results obtained by ESL in their prior assessment of the Property. Table 2 gives the measured concentrations of Total Petroleum Hydrocarbons in parts per million for all soil samples of both NORTECH and ESL. HLA sample results have not been included, as the relevant samples were of soils that were subsequently excavated. These samples results are displayed in order from west to east and by sample depth. Hydrocarbons as detected by EPA Method 418.1 (TPH) are present on -site. Every soil sample analyzed for Total Petroleum Hydrocarbons contained detectable concentrations. Concentrations varied from a low of 4.6 ppm to a high of 15,600 under the heating oil tank at the Teen Center. TPH is used as a general indicator when the exact nature of contamination is unknown, but does have limitations in its use to assess contamination, as discussed in Section 2.0 Methodology. While ADEC cleanup requirements have been established for specific contaminants, such as gasoline- and diesel -range petroleum •hydrocarbons, they no longer recommend a cleanup level for TPH in soils, although there was one in existence when the HLA study was done. The highest concentrations other than at the Teen Center (discussed below) have been in the 200- 300 ppm range, sampled at a depth of 4 to 5 feet in three different locations on the Property. This level is somewhat high, but not considered significant unless it is an indication of greater concentrations elsewhere on the property or determined to actually be diesel or gasoline -range petroleum hydrocarbons. The sample in this range taken by NORTECH contains at least a certain amount of biogenic hydrocarbons, i.e., TPH generated by organic substances such as peat. Our sample result for Boring 7, with a TPH concentration of 274 ppm, was found by the lab to contain some but not all biogenic hydrocarbons. The individual percentage contributions of biogenic and petroleum Page 25 104 0 cn Table 2 -- Total Petroleum Hydrocarbons (ppm) FITP, MI, Sampling Locations from West to East Observations in boxes sampled by NORT ECH (1) Denoted by ESL as background (2) Sample taken from directly below above -ground storage tank at depth of 0.1' NORTECH Phase I Site Assessment Alaska Sea Life Center November, 1993 hydrocarbons in these concentrations will require further analysis. To this end, NORTECH recommends further random sampling and analyses within the footprint of the project. 8.2 Other Hazardous Wastes No indications exist that other hazardous waste contamination is a concern on this site. The one sample tested for volatile organic compounds was found to have no detectable levels of contamination. Polychlorinated biphenyls testing done on -site by a previous consultant found no detectable levels. An EPA Method 8010 analysis of surficial soils removed from the site by Exxon was found to have no chlorinated volatile hydrocarbons above detection levels other than a slight concentration of tetrachloroethylene. Ethylene glycol is the only nonpetroleum substance documented to have been stored on -site. NORTECR's investigation has discovered no significant potential of hazardous waste contamination. In addition to potential soil contamination, debris from the railroad yard and subsequent fills can be expected to be found during excavation. Railroad tracks at or below grade are currently visible in Tract 2, and ESL gave indications that other debris also exists in the planned excavation area. 8.3 Fuel Storage Tanks 8.3.1 Former Service Station Across Railway Avenue From the sample result of Boring 08 at the water table, we can conclude that the former service station across Railway Avenue from the Property is not currently having a significant environmental impact on the Property. The soils at the water table down -gradient (assuming a predominant north -south gradient) from the service station show only a modest TPH concentration of 27.3, with no volatile aromatic compounds detected. These tanks have not been registered with the ADEC. If the tanks still exist, they are in violation of current ADEC UST regulations and should be registered.. As a source of environmental uncertainty to the Property, these tanks should also have a focused environmental assessment done. 8.3.2 Heating oil Storage Tanks The assessment of the fuel storage tanks on -site was beyond NORTECH's scope of work in this Phase I SA, but needs to be formally studied. The above -ground tank at the Teen Center has been found to be a source of TPH contamination to the environment: ESL found visual evidence Of spillage from the above -ground Teen Center tank and confirmed this with sample test results. In addition, NORTECH detected evidence of overfills and spills at the UST by the IMS Machine Shop. Page 27 106 NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 ESL had sample results which warrant further investigations into the effects of the two Teen Center tanks. The 10-fold increase in TPH concentration in Pit 6, from 93 ppm at 8' to 93.1 ppm at 85, with a change from damp to wet soil, caused ESL to conjecture that the ground water is contaminated. As this sample location is directly down -gradient from the Teen Center (assuming a north -south gradient), spillage or leakage Teen Center's storage tanks is one possible explanation of these results. Further testing is necessary to confirm or deny the existence of unacceptable TPH levels in the ground water and to link such contamination, if discovered, to the Teen Center tanks. The two underground storage tanks (one with extensive piping) and the above -ground tank have never been formally assessed. These tanks are old and evidence has been found that they may have impacted the environment. We recommend a formal assessment of each fuel storage tank at this time. These suggested impact studies can be performed in conjunction with the recommended testing within the footprint of the project. rr 9.0 CONCLUSIONS AND RECOMMENDATIONS Based on our investigation's findings and analysis as well as the considerations and assumptions set forth in the report, we conclude the following: ■ Considering the site's: 1) extensive history as a railroad yard and industrial site, 2) confirmed solid waste debris and Hydrocarbon concentrations and 3) fuel storage tanks, the Property has been rated as "Medium Risk" and warrants additional investigation. ■ This investigation has found the potential for significant hazardous waste/material contamination on -site to be minimal. Detectable levels of Total Petroleum Hydrocarbon (TPH) concentrations, in the 200-300 ppm range, have been found in sampling throughout the site, both in previous assessments and in this effort. These reported TPH concentrations may contain a biogenic hydrocarbon component and are not considered significant. The identified presence of TPH throughout the site, however, generates concern that areas of high TPH concentration may exist. ■ Multiple Underground Storage Tank (UST) systems, some in service since before the 1964 earthquake, exist on site and/or adjacent to the property. Based on available information, none of these UST systems have been evaluated using contemporary UST assessment. ■ It is recommended that, during the design phase, additional assessment efforts be completed within the proposed building footprint. The work scope should include random and bias sampling to address identified concerns and a description of required site work for construction, while taking into account acceptable levels of project risk and the available budget. Page 28 107 NORTECH Phase 1 Site Assessment Alaska Sea Life Center November, 1993 Although the findings of this limited property assessment warrant further analysis, it is NORTECITs opinion that the identified concerns are not of a severity that would require delays or cancellation of the proposed project. Properly delineated, all concerns identified can be routinely addressed during the design and construction phase without significant project impact. 11.0 LIMITATIONS NORTECH provides a level of service that is performed within the standard of care and competence found within this practice and the engineering profession. It must be recognized that limitations in a site investigation exist. Specifically, the unknown nature of exact subsurface physical conditions, sampling locations, the analytical procedures, inherent limitations, as well as financial and time constraints are limiting factors. The report provided presents results from analysis and observations of a limited number of samples. Consequently, the results reported may not represent the highest levels of contamination present or accurately represent the contamination present at each site. It is possible that undetected contaminants are present in the soil or groundwater in other portions of the property. While there are no observations suggesting otherwise, the report does not confirm or deny that all contamination associated with the property has been identified. It was also not the intent of the project scope to detect contamination other than for those parameters requested for analyses. Therefore, no conclusions can be drawn on the presence or absence of other contaminants. The extent of our assessment, by definition, was not of an intensity necessary to reveal all conditions with regard to environmental contamination or conformance with regulations, codes, permits of all the agencies having jurisdiction. The work scope requested by PN&D was considered adequate to identify significant indications of contamination and major concerns that would represent pivotal environmental issues important to a property owner. NORTECH's inability to review the Otter Rescue Center Site Assessment before we performed our site examination and limited sampling is unfortunate. `This ORC Assessment raised points and discussed site features that we were not able to adequately investigate on -site, as we did not know of their existence until after the site examination had been performed. The predetermined location of geotechnical bore holes as sampling locations limited our ability to investiate environmental issues as they arose in our on -site investigation. g The report is a record of observations and measurements made on the subject system as described. No other warranty or presentation, either expressed or implied, is included or intended. The recorded results reported may be dependent on the general passage of time, especially if a spill is ongoing and/or contamination is migrating, as well as seasonal fluctuations Page 29 4 NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 of the groundwater, which is typical of the project area. The data should be considered representative only of the time at which the site investigation was completed. The report was prepared for the exclusive use of PN&D and ASLC investors. If it is made available to others, it should be for information on factual data only and not as a warranty of surface or subsurface conditions, such as those interpreted from the results presented or discussed in the report. We certify that, except as specifically noted in this report, all statements and data appearing in this report are in conformance with the provisions of the Quality Assurance Program Plan (QAPP) prepared by NORTECH, dated 16 June 1993, and on file with the Alaska Department of Environmental Conservation. NORTECH has performed the work, made the findings, and proposed the recommendations described in this report in accordance with generally accepted environmental engineering practices using the best technology available at the time the work was performed. NORTECH IJ J k. Hawkes ssessment Manager Assurance Officer Michael Hargestfeimer, PE, DEE Page 30 /Olzrj7 �-A l 2, /' � Date Date e 1z,/9f,3 Date 109 NORTECH - Alaska Sea Life Center Phase I Site Assessment 4 November, 1991 110 ENVIRONMENTAL & ENGINEERING CONSULTANTS 4ab (907) 452-5686 •FAX (907) 452.5694 • P.O. Box 72020 •Fairbanks, Alaska 99707 NORTECH Property Assessment Services Background In the past twenty years, an unprecedented amount of environmental legislation has been enacted at both the federal and state level. The extremely complex and interrelated environmental Relevant statutes that are most frequently encountered in the real estate environmental context are the Comprehensive Environmental Response, legislation Compensation and Liability Act (CERCLA or "Superfund"), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act, and the Clean Water Act. This environmental legislation may impose significant liability on the purchaser/owner of real estate, even if they had no involvement in the activities causing the contamination and regardless of whether there was actual knowledge of the contamination. The courts have consistently held that the environmental liability is strict, joint and severable: Four defenses Section 107(b) of the CERCLA, however, provides the following four affirmative defenses where liability may be avoided: (1) an act of God; (2) an act of warp (3) an act or omission of a third party; or (4) any combination of the foregoing. The "third party defense" is the defense most likely to be used and at first appears to be relatively broad. However, this defense is, in practice, severely limited by the requirement that the "third party" be someone other than one whose act or omission occurs in connection with a contractual relationship. With limited exceptions (government entity, inheritance, etc.), EPA has interpreted "contractual relationship" to include a real estate deed. Superfund Congress recognized that this strict liability may cause unequitable Amendment and results by imposing liability on new land owners who had acquired Reauthorization Act the property for full market value and not contributed to the hazardous waste disposal activities. They amended CERCLA in 1986 with the Superfund Amendment and Reauthorization Act (SARA), which provides a framework whereby a purchaser exercise i NORTECH Property Assessment Services Page 2 "due diligence" and "all appropriate inquiry" in investigating a Property for contamination prior to the purchase. EPA guidance indicates that a determination of what constitutes "all appropriate inquiry" under all circumstances is to be made on a case -by -case basis and that information to be provided to establish the "innocent purchaser" defense includes the following: "Innocent 1) Evidence relevant to the actual or constructive knowledge ,Purchaser" Defense of the land owner at the time of acquisition; 2) Affirmative steps taken by the land owner to determine previous ownership and uses of property; 3) Condition of the property at the time of transfer; 4) Representation made at the time of transfer; 5) Purchase price of the property; b) Fair market value of comparable property at the time of transfer; 7) Any specialized knowledge of the land owner. NORTECH NORTECH has developed the following standardized Property environmental preliminary site assessment services to satisfy Assessment Conditions 2 and 3 and determine if there are any actual or Services potential environmental liabilities related to the property. In the event of a significant potential or actual contamination, Phase II and III services qualify and quantify the extent of contamination. Where contamination is confirmed, NORTECH is available to design remedial corrective actions and for regulatory assistance/negotiation. Phase 1: Phase I provides a preliminary of prior and Preliminary current uses of the site to determine the likelihood ofcontamination Property by toxic or hazardous substances. At a minimum, each PSA shall Assessment include: A historical Data Review (past ownership, uses and (PPA) regulatory agencies), Site Visits, Interviews, and preparation of a Phase I PPA Report. 112 NORTECH Property Assessment Services Page 3 Historical data Historical data reviews include available information sources that review could be useful in identifying the types, locations and quantities of toxic and/or hazardous substances that may exist. Examples of records and information sources to be searched include historical aerial photos, regulatory agency files (e.g., U.S. Environmental Protection Agency, Alaska Department of Environmental Conservation), underground tank registrations, building permits, plats, etc. Oral history reports may also be appropriate. The type of information to be collected includes: land use; identification of how hazardous substances may have been used, disposed of, or stored at each site; types and volumes of wastes or substances used or generated on the sites; on -site and off -site disposal practices; past and current regulatory actions at the sites. Within survey limits, an attempt will be made to determine the presence and location of fuel storage tanks, fuel service lines and vents. Every effort is made to collect as much information as possible prior to the actual site visit. Site Visits Site visits will be conducted to find physical evidence of contamination and/or the presence of toxic and/or hazardous substances. To ensure conformity, a standard inspection checklist is used during the site visit. Information collected includes, but is not limited to: s: the evidence and location of surface spills or other visible contamination, wr dead or damaged vegetation, or storm drain and sewer lines, Nr sumps, pits, ponds, or landfills, or underground tanks and lines, or drum and chemical storage areas, a existing water supply wells, or existing ground water monitoring wells, and or other indication of potential contamination. A photographic log is made of all sites with potential contamination. Interviews of Site interviews of site personnel are conducted, if possible, to assess Personnel past/current toxic/hazardous substance use and waste disposal practices. Interviews with related personnel (past and present), including owners, managers, employees, and neighbors, are desired. NORTECH Property Assessment Services Page 4 Interviews may be done concurrently with the Site Visits and/or Historical Data Reviews. Report Following completion of the PPA, the available data will be presented in a report. The report will summarize the site investigation methodologies, observations and findings. NORTECH will assess the existence of contamination based on our findings. The report will classify the site(s) with a hazardous material rating system, divided into four degrees of risk. - Sue risk No Risk: There is nothing to indicate hazardous materials iclassifications would be a problem. It is Gave been handled on possibleat hazardous materials information indicates problems shoProperty. not be expected. Phase Phase II will not be necessary. Low Risk: The operation has a hazardous waste generator or deals with hazardous waste materials. However, based on all available information, there is no reason to believe there would be any problem with hazardous materials. This is the lowest possible rating a gasoline station operating within current regulations could receive. The report would include recommendations on if the Phase II investigation is warranted. Medium Risk: Asbestos, hazardous materials, or soil andlor water contamination may be identified and indications are found that the problem does warrant the Phase II investigation. High Risk: Hazardous materials were encountered or there is a high potential for hazardous material problems on the property. Further assessment will be required to determine the actual Presence and/or levels of hazardous materials and the need for remedial action. The report will also identify any "hot spots" and contain a preliminary field testing sampling plan to be performed under Phase II, if required. The sampling plan develops a scope of work for Phase II to confirm the existence of the contamination and the type(s) of toxic and/or hazardous substances. The report will identify and give a brief rationale for the test(s) recommended. 11A NORTECH Property Assessment Services Page 5 Phase II: This phase conducts investigations of the presence/absence of Preliminary contamination using probes, borings or other applicable procedures Contaminant on the probable "hot spots" as determined in Phase I. If soil Surveys samples are taken, they will be field screened (with either a Photo Ionization Detector (PID), Gas Chromatograph or other applicable method). If there is fuel contamination, the soil samples will be submitted to a laboratory for analysis using the applicable EPA methods. Laboratory testing will conform to U.S. Environmental Protection Agency (EPA) and Alaska Department of Environmental Conservation (ADEC) recommended methods and equipment. Other tests, such as for PCBs, heavy metals, total petroleum hydrocarbons, etc., may also be required. Report After receipt of the sampling results, a Phase H Preliminary Survey Report will be completed. The report will detail the methods used, provide an analysis of the results, supplemented with graphical presentations where appropriate. A discussion of the limitations and the confidence of the field and laboratory procedures used will also be included. Should the Phase H investigation results indicate that further testing is recommended, the report will also contain a scope of work for a Phase III investigation. The report will discuss the need for additional field tests and what tests are recommended. Phase III: The Phase III plan and analytical program will indicate the Contamination magnitude of the contamination and the type(s) of toxic and/or Delineation hazardous substances to be conducted at sites identified during Investigation Phase I and/or Phase II. Testing and analysis is conducted to measure the soil, groundwater or air contamination by toxic or other hazardous substances. Laboratory testing will conform to U.S. Environmental Conservation (EPA) and Alaska Department of Environmental Conservation (ADEC) recommended methods and equipment. Services can include the following tasks: Qualitative testing Soil gas or other qualitative survey of designated sites will be used to determine the presence of BT1EX compounds, TPH, radioactivity, and/or other toxic or hazardous substances. A combination of several tests may be required. The exact materials to be tested and the methods to be used at each site are determined from the Phase I and II efforts. Quantitative testing Quantitative soil, groundwater or air testing of sites will determine the magnitude of toxic or hazardous substances contamination. Testing will attempt to determine the source, extent, type, and any NORTECH Property Assessment Services Page 6 a migration of contamination. Examples of such work include: well water monitoring, installation of monitoring wells, soil borings and laboratory analyses for air, soils and water. EPA 8020 and 8010 methods and the TCLP tests may be used to determine if hazardous materials are contained in waste oil. Report Upon completion of the field investigation, a Phase III Contamination Report will be completed, detailing the methods used during the Phase III investigation and providing an analysis of the results. The Report will contain a concise summary of the implications of contamination at each site tested under this Phase. NORTECH will estimate the type, source, age, extent, depth and ! magnitude of the gnl contamination, with appropriate recommendations for further investigation, applicable remedial actions and preliminary cost estimate of remedial actions. A discussion of the limitations and the confidence of the field and laboratory procedures used will also be included. f11 adminW-i-%eavau2.doe awn I ENVIRONMENTAL & ENGINEERING CONSULTANTS (907) 452-5688 a FAX (907) 452.5694 • P.O. Box 72020 • Fairbanks, Alaska 99707 October 26, 1993 U.S. EPA, Region 10 FOIA Office 1200 Sixth Avenue Seattle, WA 98101 Re: Request for Information To Whom It May Concern: Under the Freedom of Information Act, I am requesting a list of records pertaining to sites previously or curently under investigation for existing or potential environmental violations, including but not limited to the 1/4 mile surrounding: Section 10, Township 1 South, Range 1 West, Seward Meridian Waterfront Tracts 2,3, and eastern portion of I Seward, AK 99664 The zip code for the entire area of interest is 99664. I request that records lists be reviewed in the following departments: Hazardous Waste Division including CERCLIS, RCRA, Emergency Response Notification System and National Priorities lists Air & Toxics Division Water Division Currently, I am interested in only a list of records available for the area of interest, not copies of the records themselves. If you require any additional information or the cost of the records search exceeds $25 (or the current amount of the search -fee waiver), please contact me at (907) 452-5688. Sincerely, NORTECH with A. Hawkes .RUN`4TU-C i-b/2-9-/93' 13:41:31. PROD VERSION �# ' 'CERCLIS• QA7A :BASE DATE: .1012.8/93 U.S. 'EPA SUPERFUND PROGRAM G GERCOi .DATA'BASE TIME.— iD--3x:07 +�+= C'E R C-L'I 5 .0 'IIERS'111P1•3.0A '' - LIST-B: .SITE/E1ERT LISTING SELF CTIQN:' -*0 SPECIAL SEQVe 4C'E: STATE? ZIP. CODE ''EVENTS:,�''� ',ALL•.: SITE . NAME' • STREET :. AC ' GiTY STATE ZIP' DPRBLE . E1(.FNT EVENT S1 ; lr9 ZEZ XQ rP' : l:Qil1` ULUt IiNP�i9tll AK2) 2230;0153 i1SOA FS • CNUGACN • NATL FOREST' (KLWC) 00 DS 1 .: MP 23..-4' _S.EWARD HWV :PA 1, ' ' NFA W ° •_ SEMARR 1 : AK'49b64 KENAI TENINSAA ;.-. '•a'T° :e? �,' ��• °. 0Pf10W FUM W (7•B0J ' .•,:' `, .. :D FAX TRANSMITTAL raPew► ~- ' .. 1,2 _ N6N 7WQ-99-J97- 6 -t0/ aENEw1 SENWCES WWMTKAI v- r 04/OB/93 EPA REDION 10 REPORT n D PAGE TOTAL RCRA MOTIFIERS - ZIP CODE SORT T c R T D E A S D NON EPA ID NUM HANDLER NAME LOCATION STREET CITY ZIP N N D L - REG AKDD00E34945 CiEVRON USA ENC SELDOVIA OULK PLT P O BOX'Z7 ^- SELDOVIA 99663 1 G^ d ti AK8690502D36 USDOT FAA SKNENTNA FAC SKMENTNA ARPRT AREA SKNENTNA 99667 1 X AK0983060537 ADEC PE14UMLA GREENHOUSES TSN R10M 516 SE1/4 N)E1/4 SM Z. RIDGEWAY 99669 1 AK0983073149 AOEC SOLDOTNA LOURDES AVE SOLOOTHA 99669 z x X AK8983074M KENAI PENINSULA BOROUGH SOLDOINA LDF MI 98.5 STERLING IM SOLOOTHA 99669 3 AKD902B20236 ADEC COASTAL DRILLING SITE MILD O.S KENAI SPUR IINY SOLDOTNA 99669 1 AK0980975%0 M II DRILLING FLUIDS CO KENAI PO BOX b45 SOLDOTNA 99669 1 MD900974102 ALASKA ST OF DEPT OF TRANS SOLOOTNA STERLING RNIY ME 96 SOLDOINA 99669 AKDOSIZ39364 TACNICK FREIGHT LINES INC SUTHARD BLVD RIDGENAY UNINC SOLDOTNA 99669 ✓g AK09OZ652174 KENAI 000000H PRINT SHOP 135 PARK AVE SOLDDTNA 99669 Z AK0060028966 JACKSON CONSTRUCTION 141 ASPEN ST SOLDOTHA 99669 X AKD983071127 CARVER BUS BARN SS145 KALIFORNSKY REACH RD SOLDOTMA 99669 3 X T AK0980984256 ENSTAR NATURAL GAS CO SOLDOTNA 36226 KENAI SPUR NO SOLOOTHA 99669 3 AKD983068214 ALUNI FERRWS DESIGN 43850 ROSS DR SOLDOTHA 99669 X AKD000641605 STUDBLEFIEEOS SOLOOTNA TESORO 44182 STERLING IIMY SOLOOTNA 99669 1 0 AK090D983988 KENAI BOROUGH NAINT SHOP 47140 E POPPY LN SOLOOTHA 9%69 2 AKD98$074306 ASTEC AC PLT QUALITY ASPHALT NI 84.5 STERLZM HRY STERLIM 9967Z X AK0983072810 IIALLIBURTOM LOGGING SYCS MILE 85.6 STERLING HNY STERLING 9967C 3 AKD991tMD9O MAR SPECIAL MAM SITE INC ..HANSOM RIVER RD MI 3 STERLING 996TZ X AKDOOOM4986 CHEVRON USA INC TALKERTNA BULK PLT P O BOX 189 - TALKEETNA 99676 2 O AK9690502043 USDOT FAA TALKEETNA TALKEETNA ARPRT NAY AIDS. TALKEETHA 99676 3 X AKDOO"4UO3 GRANM POINT STATION ANCHORAGE APPROX 5O HI SH OF GRANITE POINT 9%82 1 AKD961763W, MARATHON OIL CO SPARK PLATFUM T1ON R13H S26 KUSTATAN 9968Z 3 AKD981761778 MARATHON OIL CO DOLLY WARDEN PLATFOR TEN R13H R6 KUSTATAN 99652 3 AKD980738876 MARAT110N OIL CO TRADIMe DAY PROD FAC TEN R14H SS 6 KUSTATAN 99652 3 AKD"1763238 MARATHON OIL CO STEELMEAO PLATFORM T9N RLIN S33 KUSTATAN 99682 3 AK0983)70046 KENAI BOROUGH TYONEK LDFL V1214 RUN S35 SM AK SOLOOTHA 9968Z 3 B *N NOTE 1) NON-RE0 CODES O - Mom -offs DEi1ERATOR / T - NW-RW TRANSPORTER / S - NON-RE9 TSD / B - No"'REO.BURNER-DLEHOER 2) BEN CODES oo> 1 - LARGE WY GENER / 2 - SMALL RTY GENER / 3 - CONDITIONALLY EXEMPT GENER l _-. 1-Atl--:; Otk .:uDY dAWKI.-iV ! 1 On October 5, 1993 the Kenai District Office of Environmental Conservation re-ceived a POLA request. A search of our files has revealed the following information: Nygyarg LUZZ DESM.IEUON RM 89-23-01-004-01 small spill 1-2 89-23-01-051--01 Small spill 1-2 89-23-01-120-01 Small spill 1-2 89-23-01-258--07 Small spill 1-2 89-23-01-263-02 small spill 1-2 89-23-01-300-02 Small spill 1-2 89-23-01-345-01 Small spill 1-2 90-23-01-020-03 Small spill 1-2 90-23-01-038-02 Small spill 1-2 90 23-01-126-02 Shall spill 1-2 90-23-01-145-04 Small spill 1-2 90-23-01-I63-07 Small spill 1-2 90-23-01-165-01 Small spill 1-2 90-23-09-258-01 Small spill 1-2 91-23-01-104-02 91-23-01-126-03 91-23-01-176-01 91-23-01-189-01 91-23-01-255-02 91-23-01-274-02 91-23-01-276-02 91-23r-01-285-01 91-23--01-325-01 92-23-02-092-01 92-123-01-125-02 92-13-01-138-01 92-23-02-171-02 92-23-05-176-02 92 -23-01-218 -04 92-23-01-233-03 92-23-01-246-02 Shall spill new Seward Hotel, Stall spill bzcall spill Small spill Small spill small spill small spill Small spill fuel tank removal City of Seward, wastomter complaint City of Seward rt® Raymond Generator spill Small spill Eagle Lane, wastewater complaint WhLtes Sawmill, solid waste complaint Small spill Shall spill 5evard Recreation Camp, spill 1-2 142 1-2 1-2 1-2 1-2 1-2 1-2 1-2 1 157 1-2 1 3 1-2 1-2 77 ffWHR BRIYZ DESCRIPTION 32-23-01-256-03 Seward Ships Chandlery, spill )2-23-03-275-02 City of Seward, crater quality complaint 12-23-02-279-03 City of Seward, wastewater complaint )2-23-01-291-01 Small spill Q-23-00-325-04 Alaska Railroad, leaking underground storage tarok 12-23-01-339-01 Small spill 167 2 3 1-2 85 C 1-2 �3-23-00-013-01 City of Seward LUST"s (leaking underground storage tanks) 60 13-23-01-055-02 Small spill 1-2 3-23-04-063-02 Small spill 1-2 3-23-01-106-01. Small spill 1-2 3^-23-09-132-01 Whites Sawmill, hazardous waste complaint 1 3-23-02-139-02 Le Barn Appetite, wastewater complaint 1 3-s23--02-158-01 The Farm Seal and Breakfast, wastewater complaint 1 3-23-01-173-02 Small spill 1-2 3-23-02-174-01 3totorhome, 20 Mile North Creek, wastewater cwwlaint 2 3-23-01-188-e2,03,04 Four QSFS Heating oil spill projects (I report for all) 35 3-23-05-195-01 218 tad Avenue, solid waste complaint 1 3-23-06-211-01 Seward Fisheries, air quality complaint 1 3-23-02-274-01 City of Seward, !tiller's Landing, wastewater complaint 1 J , V ►ere are approximately 800 pages of information listed. I Will try to double -side copy when ►ssible; the first 20 pages are free. ease indicate which of this information you would like copied. You can fax back to me at ,2-2294 ATTK: MhRCaR6T. when I receive the fax I will prepare the copies. Our office will closed October 18, 1993 in observance of Alaska .Day. ank. you, i iret I Of cc Assistant jai Di riot Office tGE 1 raci].ity Owner Name ID and Address 3-000010 HARBOR GATEWAY INC - P.O. BOX 944 SEWARD, AK 99664 0-000162 MARATHON FUEL CORPORATION - P.O. BOX 229 SEWARD, AK 99664 0-000718 STATE OF ALASKA - DOT/PF POUCH Z JUNEAU, AK 99811 0-001122 TESORO ALASKA PETROLEUM CO - PO BOX 190272 - ANCHORAGE, AK 99519 0-001484 STANLEY J. ROGERS JR. BOX 911 SEWARD, AK 99664 ,0-u01491 CITY OF SEWARD P.O. BOX 167 SEWARD, AK 99664 0-ooi676 ICICLE SEAFOODS, INC. P.O. BOX 79003 SEATTLE, WA 98119 0-001680 ICICLE SEAFOODS, INC- - P.O. BOX 79003 SEATTLE, WA 98119 0-001873 KENAI PENINSULA BOROUGH 144 NORTH BINKLEY SOLDOTNA, Alt 99669 10-002557 STATE OF ALASKA DEPT. OF CORRECTIONS 2200 EAST 42ND AVE ANCHORAGE, AK 99508 0-002580 ALASKA RAILROAD CORPORATION P. 0. BOX 107500 ANCHORAGE, AK 99510 15:52;52 29 OCT 1993 Location Name and Address GATEWAY TEXACO NORTH HARBOR & SEWARD HWY SEWARD, AK 99664 MARATHON MARINA FOURTH AVE SMALL BOAT HARBOR SEWARD, AK 99664 ST. OF A.K. - D.O.T. - EQUIPMENT 5TH AND B ST P.O. BOX 470 SEWARD, AK 99664 SEWARD TESORO 1.5 SEWARD HWY SEWARD, AK 99664 TIDE LANDS SMALL BOAT HARBOR EAST OF FOURTH AVE SEWARD, AK 99664 CITY Or SEWARD - MUNICIPAL PUBLI SIXTH 6 MADISON SEWARD, AK 99664 SEWARD FISHERIES MAIN PLANT 100 OLD AIRPORT RD SEWARD, AK 99664 SEWARD FISHERIES loo PORT AVE SEWARD, AK 99664 SEWARD ELEMENTARY/HIGH U.S.S. 1864,TIN,RIW,S.M. SEWARD, AK 99664 SPRING CREEK CORRECTIONAL CENTER MILE 5 NASH RD SEWARD, AK 99664 SEWARD YARD, A.R.R. ALASKA RAILROAD MILEPOST 1.0 SEWARD, AK 0-002847 DEPARTMENT of EDUCATION - AVTEC 1916 ASKA VOCATIONAL TECHNICAL CENT IRER RD P.O. BOX 889 SEWARD, AK 99664 SEWARD, AK 99664 0-002851 ALASKA RAILROAD CORPORATION AAKK RAILLRROAADD - SMEWg D DOCK P. 0. BOX 107500 SEWARD, AK _ ANCHORAGE, AK 99510 PAGE 2 Facility Owner Name ID and Address 0-002874 DELBERT A. HILL P.O. BOX 36 - SEWARD, AK 99664 0-002912 ITNZVERSITY OF ALASKA-FAIRBANK$ C/0 RISK MANAGEMENT DEPARTMENT FAIRBANKS, AK 99775 0-002920 WILLIAM DAVID SCHEELE - P.O. BOX 2503 SEWARD, AK 99664 16 Records Process&d ■ 15:52:54 29 OCT 1993 Location Name and Address BAY` CITY MOTORS 1002 3RD AVE SEWARD, AK 99664 UAF SEWARD MARINE CENTER - SFOS- 101 RAILWAY AVE P-0- BOX 730 SEWARD, AK 99664 SEWARD CHEVRON 3RD AND B ST SEWARD, AK 99664 I0A NORTECH Alaska Sea Life Center Phase I Site Assessment November, 1993 COMMERCIAL TESTING & ENGINEERING CO. ENVIRONMENTAL LABORATORY SERVICES Chemlab Ref.# :93.5295-5 Client Sample ID es-10-05 Matrix ISOIL REPORT of ANALYSIS 5e33 8 STAEET ANCMIUMACE. AK 2018 TEL• (007) 582.234.3 FAX: (607) 5e1.330, Client Name INORTECH WORK Order Ordered N :PNsRO& iT CAAMS Report Completed 110/25/93 01829 Project Name ePN � D/SAAl1S Collected Project# ' Received 110/05/93 6 13100 hra. PWSID IUA T 310/06/93 6 09,50 hra. echnical Director:ST Released By EDE 1 Parameter Reaulta QCAllowableExt. Anal units Method Limits Date Date Tnit Percent solids--�-_'-_--_-----"---- 85.2 41 Shi17 25400 _ Total Petroleum Hydro 69.5 le9/t{g 10/14 SMK EPA 418.1 10/19 10/19 SMK a�aa�zzz:zz....zszzmsa..sass............azaasz............r.........aez... ............. a * See Special Instructions Above ** See Sample Remarks Above UA ■ Unavailable U = Undetected, Reported value is the practical quantification limit. NA NotAnalyzed D - Secondary dilution. L. . GT . Greeter Than 4nr_ COMMERCIAL TESTING & ENGINEERING CO. ENVIRONMENTAL LABORATORY SERVICES REPORT of ANALYSIS Chealab Ref.# s93.5295-4 Client Sample ID :®-08-13 Matrix sSOIL 5633 B STREET ANCHORA(`.E, AK 9951e IEL: (907) b62-2343 FAk (207) 561-5301 Client Name :NORTECH WORK Order 01829 Ordered By sROBERT CAHOON Report Completed t10/25/93 ftoject Nemec IPN A D/5AAH8 Oollected t10/04/03 0 ifie60 hre Project# t Received t10/06/93 a 09s50 hre PWSID tUA Technical DirectortS Released By t CDE Sample Remarkst SAMPLE COLLECTED BYt R. CAHOON. Allowable Ext. Anal Parameter Results Quual Units Method w---- Limits Date —e____m_________ Date _ Init _—______®__o_m—m-_____r_--__________ae_®_a. Percent Solids 90.7 ----- % r---- SH17 25409 10/14 SMK Total Petroleum Hydro 27.3 mg/Kg EPA 416.1 10/19 10/19 SMK Aromatic Yolatiles EPA 8020 Benzene 0.0020 U mg/Kg EPA 8020 10/14 10/21 JLB Toluene 0.0020 U mg/Kg EPA 8020 10/14 10/21 JLB Ethylbenzene 0.0020 U mg/Kg EPA 8020 10/14 10/21 JLB Chlorobenzene 0.0020 U mg/Kg EPA 8020 10/14 10/21 JLB p A a Xylene 0.0020 U mg/KQ EPA 8020 10/14 10/21 JLB o-Xylene 0.0020 U mg/Xg EPA 8020 10/14 10/21 JLB 1,4 Dichlorobenzene 0.0020 U mg/Kg EPA 8020 10/14 iD/21 JLB 1,3 Dichlorobenzene 0.0020 U mg/Kg EPA 8020 10/14 10/21 JL8 1,2 Dichlorobenzene 0.0020 U mg/Kg EPA 8020 10/14 10/21 aU y� Yaaaa=aaxslsClmmtasaiQ=9L'SL'Ce'1s�maaa=!fi!=lRa==BmaBDS3Sii9=sm=m=mmOi=i=s=i7Si�lmmisa=s=a�l2i3s • See Special Instructions Above UA = Unavailable ** See Semple Remarks Above NA = Not Analyzed U = Undetected, Reported value is the practicalLT a Less Than quantification limit. D = Secondary dilution. GT = Greeter Than ,0A w\r% e+ - . __ _.._ iaw�..:a�6 t':dn6rwl� dal 3urosillanC9t COMMERCIAL. TESTING & ENGINEERING CO. ENVIRONMENTAL LABORATORY SERVICES W.I. +— Cheallab Ref.f :93.5295-1 Client Semple ID IS-07-05 Matrix iSCIL Client Name :NORTECH Ordered By :ROBERT CAHOON Project Name :PN & D/SAANS Project# : PWSID WA REPORT Of ANALYSIS 5633 a STREET ANCHORAGE, AK 99518 TEL: (907) 562.2= FAX:(007) 661-5301 WORK Order 01829 Report Completed cIO/25/93 Collected :10/04/93 9 13110 hrs, Received :10/06/93 B 09150 hrs, Technical Director : ReleaBy 1 sed a SAKPLE COLLECTED BY: R. CAHOON. THE RATIO BET{iESi TOTAL PETROLEUM HYDROCARBONS - METHOD 418.1 - AND OIL & GREASE - METHOD 413.2 - OF 0.60 INDICATES THE PRESENCE OF SIOGENIC HYDROCARBONS. Parameter Results Quel Units Allowable Oct. Anal Method Limits Date Date Init Percent Solids '- -_._�_ Total Petroleum Hydro g274 rtg/I4q s�i'A 418®i 10/14 BMK 10/19 10/19 SMR C-!s!-assess:als!!l:sals8lsla:as.ilpisssatas.ssasaassCSa7sasaa®zasva=sssasaseto,ssll6saiRisssssai!!is See Special Instructions Above UA •unavailable "" *" See Sample Remarks Above NA a Not Analyzed - Undetected, Reported value is the practical quantification limit. LT a Leta Than D =Secondary dilution. GT a Greater Than 00 -'eTL' COMMERCIAL TESTING & ENGINEERING CO. ENVIRONMENTAL LABORATORY SERVICES 111- 1... 5633 8 STREET ANCHORAGE, AK 99518 TEL: (907) 562-2343 93.5295 FAY:(907) 561.5301 CHRIN OF CUSTODY RECORD PROJECT: ' Ta A AUTHORIZAT!CN NUMBER: CLIENT: J j C ( SAMPLERS: (Printed) (Sig at *) WITNESS: (Printed) (Signature) 0 DESCRIPTION / LOCATION DATE TIME 3AMPLE TYPE a OF CONT. ANALYSIS REWIRED QA/QC REQURRED Ile- p - G S3rz; 3 i 1 i "1. iq ui s hod Iy: r,'inted Ce= 3� (Sil�rtaturir) ace v y: (Printed) (Signaiure) e e7 Ti tree Relinquished by: (Prtn4d5 (Signature) Received by: (Printed) (Signature) Date / Time Dispatched by: (Printed) (Signature) Date ! Time Received a L"o stor/y by: - , / Date / Time Relinquished by: (Printed) (Signature) Received by: (,ranted) Date / Time Method of Shipment: Condition of Containers: od Fair Poor Temp. Seeis yes / no Comments: %®IN SG!3 Member of the, 0110 r_,oup (SociAtd Unarale de Surveillance) NORTECH Alaska Sea Life Center Phase 1 Site Assessment November, 1993 ft- i rV/1 all Seward Otter Rescue Center J` Environmental Site Investigation o prepared by: Environmental Services Ltd. 4201 Tudor Center Drive Suite 307 Anchorage, Alaska 99509 (907) 563-1912 prepared ror: Guess and Rudd 510 L Street Seventh Floor Anchorage, Alaska 99501 (907) 276-5121 July 31. 1989 147 F X TEL,�CCP I ER Zn L:01 PH, 307 Ce2 1=24 e 3�7�`55354 • 3 — 1.0 INTRODUCTION 3 2.0 FACILITY DESCRIPTION 3 2.1 LOCATION AND SITE PLAN 3 3 2.2 SURROUNDING LAND USE 2.3 SITE HISTORY AND RESPONSIBLE PARTIES 3 2.4 SITE OPERATIONS AND WASTE DISPOSAL PRACTICES 6 3.0 ENVIRONMENTAL SETTING 7 3.1 CLIMATE e 3.3 SOILS AND GEOLOGY 4.0 SITE INVESTIGATION 9 4.1 PHASE I: PRELIMINARY ASSESSMENT 9 10 4.2 PHASE II: SITE INSPECTION 5.0 WASTE CHARACTERIZATION 10 5.1 SOIL AND SEDIMENT CHARACTERISTICS 12 12 5.2 GROUND WATER CHARACTERISTICS 6.0 CONCLUSIONS AND RECOMMENDATIONS 13 6.1 CONCLUSIONS 13 13 6.2 RECOXME.NDATIONS 13 7.0 REFERENCES 14 8.0 APPENDICES 15 SAKPLING METHODS 16 AIR PHOTO INTERPRETATION 19 SOIL LOGS i EROX TFLECCOPIER 395 4:03 Fw; :07 _ e 1924 :p7Z799354 Seward Otter Rescue Center Page 3 Environmental Sits Investigation 2.0 FACILITY DESCRIPTION 2.1 LOCATION AND SITE FLAN The Seward Otter Rescue Center is located in Seward, Alaska, longitude 149 degrees 26 minutes west, latitude 60 degrees 7 minutes north, between downtown Seward and to the City dock. Seward is located along the northwestern margin of Resurrection Bay on the Kanai Peninsula. The city is about 122 miles south of Anchorage (Figure 11 The Seward Otter Rescue Center occupies Tract 2 of the City Of Seward, Seward Waterfront Tracts. The Seward Peen Center occupies the northeastern corner of the same tract and is separated from the Otter Rescue Center by a chain -link fence. This site is on the south Bide of Railway Avenue and extends from the western edge of Fourth Avenue west almost 'to the intersection of Third and Railway Avenues (Figure 2). A six foot high chain -link fence surrounds the site. 2.2 SURROUNDING LAND USE Air photo interpretation was used as a preliminary technique to determine surrounding land use and historical land use. Interpretations were field checked. interpretations are included in A The summary of ppendix 9.2. 2.2.1 Gasoline service station An abandoned gasoline station was located on the north side of Railway Avenue across the street from the Seward Teen Center (Figure 2). The station apparently burned to the ground during 1988 or early in 1989. This site has been fenced with eight foot high plywood and the remains consist of charred lumber and roofing material. The site appears to bs up -gradient from Otter Rescue site and is topographically elevated above the Otter site. Underground fuel storage tanks do not appear to have been removed. The tanks be more than 25 years old since the could existed before 1964. A fuel pump remains in tact on the sidewalk in front Of the service station. 2.2.2 Machine shop A machine shop previously existed west of the abandoned Chevron station on the north side of Railway avenue, sin identified this building as Seward Machine Shop. A This location is immediately north and across the street from the western end of the Otter Rescue site. I "Z A i e.re..areresen®.e e..s .dbd® 616VCOLb6�Obbt/ee 2.2.3 Southern storage yard The property adjacent to' and south of the Otter Rescue site was being used for storage. The paved site generally slopes south, away from the otter Rescue site. Storage consisted cf drums, a car, fish processing equipment, and commercial fishing equipment such as crab pots. At' least 35 drums, 55 gallon capacity, were stored on this property durinq April of 1999. Six rusted drums located 6 feet south of the Otter Rescue property boundary were stored on a pallet. Some had labels suggesting that they contained ethylene glycol. These drums were rusted and an unlabeled drum was leaking. Five blue drums and 25 to 27 orange and white drums are stored in this area. Labels that were visible with binoculars were: EXXON Company, USA - EXXMAR-30TF-40, FN-05711 EXXON Company, USA - TRO-MAR SAE 40, FN 02274A AaMIGNI afUl WIrl S$ftfyI8 WPSJ SJ $ traailer stored on this site. Most of the drums were completely rusted 06Malthough blue paint was observed on several. These were stored horizontally and some had the bungs oriented at the lowest position (down). 2.2.i itestern storage yard Creosote treated logs were stored the Otter Rescue site. The pile about 9 feet wide and 22 feet long strong creosote odor. 2.2.5 Seward Teen center 2.2.5.1 underground fuel tank along the fence west of was about 3 feet high, These logs had a very A building located in the northeast corner of Tract 2 and adjacent to the Otter Rescue site was currently being used as a teen center. Visual inspection of this property indicated that an underground storage tank was probably used for heatinq fuel. A filler pipe located rear the northwest corner of this building suggests that the tank remains in the ground. 4 7 C Environmental Site Investigation 2.2.5.2 Above ground fuel tank A heatinq oil tank, approximately 250 gallon capacity, was observed on the south side of tho Teen Center building. This tank was elevated about 4 feet and plumbed to the nullaing: RC arCa around nc tans inow §iunj or overfilling and spillages. Fresh oil stains ware obsorved on the ground near the tank and an unusual leek of vegetation existed where oil stains were observed. interpretation suggests Photo between 1979 and Septembthat this tank was placed in service or of 1985. 2.2.6 Abandoned railroad rails Two sets of abandoned railroad rails were observed along the southern portion of the Otter Rescue site. The rails were mainly in the southwestern portion of the site. 2.2.7 Sewers and storm drains (active and abandoned) An active sewer extends through the Otter Rescue site in a southwest to northeast direction parallel (Figure J). The sewer is to Railway avenue and probably connects to the sewage treatment facility that is located about 2 blocks to Railway the west. Another active sewer is believed to exist below Avenue that lies parallel to the property boundary and is assumed to connect to the same sewage treatment facility. An abandoned sewer crosses the site in a north - south direction near the central portion of the Site. Although city records indicate that this was a sewer, an open -grated storm drain was observed on the presumed line n the system and near a manhole. Another abandoned storm drain trends southeast to northwest near the western portion of the Otter Rescue site. This storm drain, although officially abandoned, is probably still in use. 2.3 SITE HISTORY AND RESPONSIBLE PARTIES On March 24, 1989 the supertanker Exxon -Valdez went aground on Bligh Reef in Prince William Sound spilling over Million gallons of Alaska North Slope 11 sea otters were crude oil. Numerous exposed to the crude oil. Horcon, under the direction of EVeco, Inc. and xxon Oil Company, was constructing a rescue facility in Seward, Alaska to provide medical services for the affected otters at the time of this analysis. 1 'AF XEPDX 7EtECCP1ER 295 ; 9-18-89. 4:06 PM; 907 562 1924 9072708354 s 6 39 09,15 tests S °09 'iv :�?a Seward Otter Rescue Center Page 6 Environmental site Investigation The Seward Otter Rescue Center site is owned by the City of Seward. The site was used as a railroad yard for maintenance and staging from 1906 until 1964. The U.S. military probably used this site extensively during World War II. The Good Friday Earthquake during March of 1964 caused many landslides in the Seward area. Railroad tracks near this i part of Seward vanished into Resurrection Bay. Associated with the large earthquake was a seismic sea wave that inundated much of the City of Seward including both sides of the Otter site. Damage from the sea wave included the overturning of a fuel storage tank several blocks away spilling large amounts of refined fuel on land and into the bay. other nearby tanks caught fire and spilled additional fuel. A narrow elongated drainage ditch south of and parallel to the southernmost set of rails (Figure 2) apparently drained an area east of the site onto the otter site and slightly westward during and before 1964. Most of the site has been filled over the years from 1964 to present with most activity occurring during the 198018. The property was used for storage since 1964 and possibly for equipment maintenance. About twenty five 55 gallon drums were removed from the site immediately before Veco began construction of the site. The drums were stored directly on the ground and some leaked oil -like substances on the soil. 2.4 SITE OPERATIONS AND WASTE DISPOSAL PRACTICES The Otter site occupies approximately 1/2 acre of fenced land. ATCO trailers were placed on wooden blocks and walkways .were built to connect the trailers. Individual trailers were designated for various uses such as washing and husbandry. A waste water system was not yet built at the time of this site assessment. Seward Otter Rescue Center Environmental Si", Investigation r ayo 3.0 :NVIRONMENTAL SETTING 3.1 CLIMATE A maritime coastal climate dominates t`e Seward area, Precipitation averaged 75 inches per year between 1987 and 1988. Based On limited data, a probable 24 ',our precipitation event will exceed 3.5 inches (Table xontc Jan 87 Feb Mat IApr MAY Jun Jul Aug Sep Oct low Dee Jan 88 Feb Mar Apr KAY I Jun Jul Auq Sep Oct MOB Dec Total Maas KU Kin WLt d Climatic Data Ave, sighest Lowest Tot. Greatest Temp. Tap. Te:p. PreCl Q (oF) (or) (inches) p r day 3I.8 34.8 45 8 ll.d I.99 33.4 47 '3 6.55 1.07 40.2 57 5 4.1t 1.12 46.6 64 ; 3 4.73 :.86 49.9 62 43 3 �9 56.6 31 56.7 72 46 n 97 :.29 49.9 62 46 35 0.93 3.16 41.9 54 23 10.48 ..63 34.3 46 20.75 3.43 27.6 41 11 .4 30.I d3 8 6 ..{ 2.24 32.9 43 8.29 2.59 36.1 °6 25 7'16 Z.18 33.7 5128 5.45 0.81 4611 04 32 01 Z.11 52.5 41 1..14 J.33 56 63 :.a6 ?.33 54.6 -2 49 45 n.55 -.5q 3.�5 4a.f -.36 1.97 40.3 55 16 0 ".36 1.:5 31.5 46 12 :,Z3 2.22 0.4a 12.78 1.49 42.7 149.70 81 1.83 -8 The average annual temperature is 43 degrees F, winter months average 30 degrees F, and summer 54 degrees F. 100 award Otter Rescue Center _nvironmental Site Investi cion 'age 8 3.2 TOPOGRAPHY AND SURFACE WATER CHARACTERISTICS 3.2.1 TOPOGRAPHY Seward is constructed on an alluvial fan that was formed by the deposition of Lowell Creek. The fan is approximately 2600 feet from apex to tidal margin and about 6000 feet wide. The apex of the fan is about 125 feet above sea level and slopes toward the Seward Otter Rescue Center. The otter Rescue site slopes toward the south. Nearby elevations range from ocean depths of 900 feet to mountains over 4,000 feet. An ice field exists on the west side of Marathon Mountain, approximately two miles west of Seward, and drains into Lowell Creek. An unnamed glacier on the southeast face of Marathon Mountain drains into Resurrection Bay north of the alluvial fan that forms the city of Seward. A north _ south trending ridge that is about 3 miles west of Seward acts as a hydrologic divide. Water flowing west of the divide generally flows north to Resurrection River and ultimately into Resurrection Bay at a point about 2 miles northeast of Seward. 3.2.2 SURFACE WATER Surface runoff. appears to flow across the site from north to the south. Some of this runoff probably drains into the manhole and storm drain along the south boundary and the remainder appears to drain eastward to Third Avenue. Several hundred feet south is shoreline of Resurrection Bay. The tidal range at Seward is about 15 feet. 3.3 SOILS AND GEOLOGY Surface water run off from the Otter site flows across the site to the south or east to the road. No significant ditches or diversions were observed. Tidal fluctuations range from a higher high water of 13.7 feet to lower low water of -3.1 feet. Seware. otter Rescue cents :nv ironmental Sits Invest. ation 'age 9 3.3 . I SOILS Soils` are composed of unconsolidated size from boulders to silt. material ranging in coil uviuffi and The material is derived from The debris transported less than one mile to Seward by Lowell Creek. De cohesive, angular, sand Posits are coarse, non- hori zone w Y gravel and boulders_. Numerous soil multiple events of man-made fill ing excavation suggesting the soil is estimated to be hi h Hydraulic conductityo10-2 cm. per second. g P probably on the order of 3.3.2 GEOLOGY I The local area is of a rgtypical of coastal Alaska and is composed Group of the the and wackes of the Valdez McHugh Group. The Valdez i sediments deposited as O7dplex consists marine sloof Late Cretaceous turbi Bites (Winkler pe, fan, and basin -plain Possibly as fill, occat- al-, 1984). OttersMinor amounts of coal, ur Quaternary deposits overlay country rock and are composed of ... deposits a alluvial fans, colluvial fans, minor beach deposits and anthropogenic fill. Seward is prone to intense seismic shaking and zidatidal "'eve inundation as evidenced during the waves flooded much of y earthquake of 1964. Seismic sea event. the low lying terrain during that 3.3.3 AQUIFER AND GROUND WATER DATA Ground water is the sole source of drinking water in Seward Both private and municipal wells unconsolidated soil beneath are located in the Seward. available about well locations and Limited data is xowever, data from several wells located Characteristics. north Of the Otter site suggestless than 2 miles exists, one at about 60 faebelaw tithe at least 2 the other about 200 feet deep, ground surface, and Ground water below the Otter site is shallow and is directly related to the tide. Depths the depth range from 8 feet to about 20 feet. p are expected to exist although no information is availabldeeper aquifer may Seward otter Rescue Cent( environmental Site Investigation 4.0 SITE INVESTIGATION 4.1 'PHASE I: PRELIMINARY ASSESSMENT ge 10 A preliminary inspection of the site on the 30th of April, 1989 was conducted by Greg Cheney and Keith Fabing of VACo and Dan Young of Environmental Services, Ltd. At that time 4 men were on the site setting large wooden blocks as foundations for ATCO trailers. Most of the site had been cleared and gravel fill placed on the ground surface prior to the inspection. An elevated heating fuel tank was observed along the south side of the Teen Center Building. The area around the tank was unvegetated. The ground was stained with a dark substance that resembled fuel stains. These stained areas were unvegetated and were next to healthy -appearing grass. A fuel line connects the tank to the Teen Center restricting foot travel between the tank and building. This area was unvegetated although the area along the building, away from the tank, was vegetated with healthy -looking grass. The tank was 5 feet long and 3 feet 2 inches in diameter and stored horizontally. Several bare patches of soil were observed up to 20 feet from the tank. My conclusions are that multiple fuel spills have occurred in this area. According to Greg Cheney, about 20 to 25 drums of 55 gallon capacity were removed from the eastern portion of the site the previous day. The foot prints of at least 10 drums were observed in that same area and hydrocarbon substances were observed associated with some of those footprints. The following knowledgeable persons were previously interviewed by Greg Cheney: Tex Ainsworth, City of Seward Jack Anderson, engineer, City of Seward Shelly Williams, consulting engineer from Seward 4.2 PHASE II: SITE INSPECTION A subsurface investigation was conducted from May 1 to May t-4, 1989. samples were collected from a solid flight auger that was used to drill two holes for power pole installation (Figure 4). Four pits, pits 3 to 7, were excavated using a backhoe during the course of site development and consequently sampled from the side walls using a rock pick and sample jars. Test pits 8 and 9 were excavated expressly for sanpling and were sampled from the side walls using the sane natnoc. .3ewa re Otter Rescue Cente- `m'i ronmental Site Invest ,.4tion '9e 11 .2.1 Soil Sampling SamD Ling results subsurface of Total Petroleum list of investigation are shown on Fydrocarbons 2- Soilresults from Figure! 4. from the to s are the investigation is u A complete g presented in A Presented in Table Results from Table Appendix g,3. distributed over the2site Best that depth of investigation,, near the surface are widely assumed gation trace to be q,6 8.3 feet. Back and to the total TPNhydr Values carbons ( TPK)parts one results is on ( Ppmgr total valuesound petroleum based spill near the ruelre �t nk Ppm sampled fro'a) pia 9. The highest near and Bout from relative fresh 4.2.2 h ®r the Teen Center. water Sampling water samples investigation. sampling to the the water table feet as observed the proximity of 5.0 were not collected during the subs Limitations or area above the baekhoe urface is not the water table, restricted known table. is The depth in pit 3 and less thane about gr.afeetthan 11 the bay and nature of soil materials due to WASTE C'L RACT£RIZATION A geophysical surve site to investigate go=as conducted of an a buried over a portion of the electromagnetic metal. The sure Conductivity meter. survey using a Geonics Survey consisted mode, a mode The instrument w EM®31 Terrain both subsurface and is most sensitivity used in the in - surface, metallic ObjectsPhase approximate) and They to y 15 feet. This investigation action construction and surface was restrictedwby tracks and metal sueh as geophysical survey equipment such 5). abandoned railroad in section s. y are shown in Figure and Results of the 1°2' 6 and discussed c- 1 1diu►.0 [ bull, Z.AMVLL• 1111ru1d1A'1'luli 7+nple 100 type tocatlon Date Collected Molding ZINC 0oring Sasple IPN by EPA IPM by lute PEN'S 11501.390U1 soil Seward Otter Rescue Center 05/01/69 7 1 1 16 NA MA 1.0109002 Soil Seward Otter Rescue Center OS/01/69 16 2 1 to.2 MA No(0.1) 050.139001 Soil Seward Otter Rescue Center 05/02/09 1S 3 1 MA 75 MA n50t110o01R Soil Seward Otter Rescue Center 05/02/69 NA 3 IN MA MA MA 051'1167002 Soil Seward Otter Rescue Center 05/O2/69 Is 1 2 202 MA 161)(4)-.I1 US01O9n0211 Soil Seward Oiler Rescue Center 05/02/69 MA 3 2N 114 MA NA 0502C9003 soil Seward Otter Rescue Center 05/02/89 MA 1 3 Me MA MR CSU2390U1. Soil Seward Otter Rescue Center 05/02/R9 IS 1 4 114 MA MD(0.1) O:n267004a Soil Seward Otter Rescue Center 05/02/09 MA 3 41 MA MA MA 01•C%9005 Asbestos Seward Otter Rescue Center OS/02/09 MR 3 S MA MA MA 3i01C9099 Soil Seward Otter Rescue Center 05/03/89 5 1 1 62.5 MR MR 050337003 Soil Seward Otter Rescue Center 05/01/69 NA S 1 MA MA MR 0303V005 Soil Seward Otter Rescue Center 05/03/69 14 6 1 11S.6 MA NA o"PIV001 Soil Seward Otter Rescue Center OS/01/69 14 4 1 36.9 MA NOM A) 0SOI9900S Soil Seward Oiler Nescue Center OS/0s/119 14 6 1 65.0 we MA 050109ODS $011 Sewer it Otter Rescue Center 05/03/69 S -6 1 125 NA MA PA349005 Sail Seward Oiler Rescue Center OS/01/69 5 6 1 125 MA MA 11101n7WIIR Soil Seward Otter Rescue Center OS/01/69 NA 4 11 MA MA NA n'.010:003R Soil Seward otter Rescue Center OS/01/69 14 5 1a MR 19.4 DS MD40.11 0"OW"09011 Soil Seward Oiler Rescue center 05/03/89 MA 7 IN MA MA NA 050109005N Soil Seward Oiler Rescue Center OS/01/69 MA 6 la Mq MA 04 OSU/69002 Soil Seward Otter Rescue Center DS/03/69 14 4 2 44.4 MA NOM A ) 0A Av010 Soil Seward Otter Rescue Center 05/05/59 14 7 2 59.6 MA ND(O.I) 0114IS69006 Soil Seward Otter Rescue Center 05/03/89 5 6 2 204 MA MA 050sO9006R Soil Seward Otter Rescue Center 05/05/89 NA 6 2m 414 MA MA 01-01090109 Soil Seward Otter Rescue Center 05/01/69 MA 7 20 MA MR NA 05010906211 Soil Seward Otter Rescue Center 05/01/89 MA 4 2m MA MA MA f50369001 Sell Seward Oiler Rescue Center 05/01/89 NA 6 3 MA MA MA n5n]119007R soil Seward Otter Rescue Center 05/01/69 MR 6 SR MA N4 MA u51Unv006 soil Seward Otter Rescue Center CS/0I/69 5 6 4 93.1 MR MR U5n319(NN1q Soil Seward Otter fescue Cecil er 05/01/09 MA 6 4a MA MR NA 050YU)" Soil Seward Otter Rescue Center 85/OS/69 14 MA MR MA SUN 0 44 050i11':IN)4R $061 Seward Otter Rescue Center 05/01/89 MR MA MA MA MR Me tGi'SOP001 Soil Seward Otter Rescue Center O5/04/69 is 6 1 15.4 MR NO(0.1) 0'..)7,%1101 Soil Seward Otter Rescue Center 05/04/69 Il 9 1 4.6 MR MA 05046900sa Soil Seward Otter Rescue Center 05/04/09 MA 9 IR MA MA MA 0:U409o01R soil Seward Otter Rescue Center 05/04/69 MR a IR 04 MA M4 050409002 Soil Seward Otter Rescue Center O5/o4/a9 13 6 2 Nq Iva DS M4 050431N102 Soil Seward Otter Rescue Cenler OS/04/69 13 0 2 MA 17.0 Os MA U50432004 Soil Seward Otter Rescue Center 05/0(/69 4 9 2 4.9 MA MA V A46)00211 Soil Seward Oiler Rescue Center 05/04/69 MR 6 2R MR MA MR CSotn?004111 Soil Seward Otter Rescue Center oS/04/69 MA 9 2a 014 MR MA ERPIAMA110N IIA _ Not applicibie or not tested 110( 1 = Mot detected and detection Iimit Sewarc: Otter Rescue Centy n _v I=onmental Site Investa,3aticn Ige 1] 5.1 S®IL AND SEDIMENT CHARACTERISTICS Soil and sediment properties The site generall sand and aY consists gufor coarse -grained fgravelmade fill composed of n was tested total randomly for Petroleum (Appendix 9.1). Soil not detected and ranged biPhenylsrocarbons (TP4) and and Table 2), ranged from h (PCBs). PCBs were ground Concentrations 9 to 15,600 ppm (Fi level is n®g Ce to about 5 feet, increase gure 4 available. Adequate below the data below that 5`1°2 Geophysical results Conductivity values were per meter (Figure gas Plotted at the scale of interpreted to represent Conductivity e.highs�� and "laws" significant anomalies subsurface lows are most elongateare shomaown o anomalies. Potentially abandonedsurfacenraily was n Figure 6, railroad interpreted to The southern tractor and trailer c., track. The anomalyrepresent an linear anomalyas interpreted to be south °f the to the east. Photo interpretation of the larger ..r suggests that railroad tracks were interpretation (Figure 2) 1964. The reni interpreted to be form -shaped anomalynear this area in other buried surface _and near near_ the dozer feature, metallic debris surf the is could produce the samelthough shaped The northernmost linear are interpreted anomalies appear to sewer. to be too wide to be related and Photo interpretation represent the extent of the northern suggest that a sanitary Abandoned after 1964 that this area may be tracks (Figure 2 or an abandoned t tracks that were the geophysical )" If this represents ench parallel to the 9 ied with anomaly would suggestthe buried was buried with the trench, that metallic entrench, is broad and relative The eastern t material buried metallic d Qentle. This riangular anomaly buried tracks. debris but does not anomaly tc represent appear represent In summary, photo investigation interpretation and.this this area. suggest that buried tracks Qeophysical such as However, trenches with buried could 55 gallon drums w metallicxde in Physical excavation would Produce debris confirmation. or drilling is Similar results. recommended for A A ewast Otter Rescue center Page 14 _nvidonmental Site Invest: :ion 5.2 GROUND WATER CHARACTERISTICS Ground water was not encountered during the site investigation due to limitations of sampling equipment. However, a soil sample collected at a depth of 8.5 feet from Pit 6 was wet (not saturated). Because the damp sample from 8.0 feet depth of this same pit had a low TPH value and the wet sample immediately below had a higher value (Figure 4), this sample is interpreted to indicate that the local ground water may be contaminated. We predict that the water table at this site fluctuates approximately 20 feet with the tides. :a award Otter Rescue Center _rvironmental Site Invests_ .-ion ' 15 6.0 CONCLUSIONS AND RFCOMHENDATIONS 6.1 CONCLUSIONS Results from interviews sampling analysis, Rescue Site suggest the most field observations is contaminated withr all of the and fuels and waste oil. iOw level hydrocarbons otter fill placed durin Two samples were Ydrocarbons from total petroleum g construction. Obtained from the These hydrocarbon One sample was 76.9 ppm contaminated. suggest and `the other w TAe that the recent as 4.6 ppm. obtained from fill u5ed for fill may also be A very extensiveeill Creek by At® n the Otter Center was under State alignment of Sawmill Logging Corporation. Inc. above ®f Alaska DOTPF ill Creek was and below contract to Sandstom preformed during the time that Rf®e Sa"n°ill .Creek bridge and sons, the creek for fill. The fnak L®gging CorporationnwMash road working in the creek. Th. ill was exposed to heavy s mining hydraulic fluids, indicated a hi equipment gasoline Contamination, lubrications high pro for construction Witness diesel fuel and sheens in the creek attested accounts ("rainbows on the to see. during construction. These surfacests) from the g hydrocarbon through the area AfognakeLoheens would have abridge during d over and gnereaseravelggin ill, Hydrocarbon a ntamg. Corps tion wasemining the ith depth Figure 7), appears to generally There was some speculation used contaminated that Afognak L® Creek to the Otter trucks to haul Logging Corporation by NORCON Canter. Documentation fill from Sawmill Construction in Seward has and investigation was not the case. determined that this Sawmill Creek is a area prior t adjacent to a filled wetland. Yard. Above NasheRoa� on Valdez spill was used This filled the shore there a lied Of Sawmill Creek. re some developed loCsa Junk developed areas also A visual along contamination which indicates inspection of these hydrocarbons in the may explain the Possible sources of fill, s. Of petroleum Results from the interpretation geophysical investigation eeestern portion of gQest that buried waste and air photo the survey limits, the site and probabi exists in the determined b The nature of they extends west beyond Y these techniques. waste could not be Underground storm drains the orI u l� surface. These and 1 sewer aesystems may leak s t).`•-�..j,-E:1 prig i t]2!? _fie _ �- appear t below sc ..- =t"'T'�k� F o have been or in- 5: tie :oinc! :i :G F�:.:.Orip Cr - L ;at r•:� . C:':�. �': _ UU$lji'sCCe azmacfa iLl[.y r1✓ SAC ewara Otter Rescue Center "-e 16 _nvix=mental Site Investi ion 'sasn't been detected. Although some of these utilities have been abandoned, site inspections suggest that they are still in use and may be allowing contaminant from other areas of Seward. to seep into the ground. 6.2 RECOMMENDATIONS A shallow sampling program is recommended when the otter site is taken out of service. The program would involve sampling 12 localities to a maximum depth of 3 feet. A grid could be laid over the site and a random number generator used to select the sampling locations. Results of the sampling should be statistically analyzed and compared to the results shown of Figure 7 to determine if additional contamination has occurred since the site was constructed. �1 •A i ?warI otter Rescue center lv'_ron;oental Site Investi, ion Page 17 7.0 REFERENCES 4inkl,er, G. R., Dumoulin, ,J t4iller, 14. L. , Hoekzema, R. a traverse �1984' Guide to the bedrock 8'° and of the Chu Mountains from 9eolo Cape Resurreetion: Alaska GeologicalAnchorage °f Survey, to Y. 40 P. 4A0 2waru Otter Rescue Center P9eye 18 ivironmental Site Investi ion 3.0 APPENDICES i ewa rd Otter Rescue Center :nvirannental Site Invest ion °age 19 ...w APPENDIX 8.1 SEwARD OTTER RESCUE CENTER 8.1 SAMPLING METHODS SAMPLING METHODS The investigation of the Otter Rescue during construction of the site. time to acquire center site began drill rig or other equinot Lead available due was ue obtaining grab samples fast tract nature of the project. to the from excavations Sampling consisted of construction. Several other pits that were made for sampling in areas were excavated for that were accessible after was mostly completed. Much of the site was not accessible duriconstruction ng sampling or the geophysical investigation. The equipment and operator that was used was supplied by Rorcom, the construction contractor. Sampling was scheduled around the construction. The backhoe had numerous hydraulic leaks and attempts small to protect the site were made. However, amounts of hydraulic fluid proba excavated pits, bly entered the Sampling was from the side walls of the Pits when possible to avoid hydraulic contamination. Samples were sent to chemical And Geological Laboratories for analysis. Several of the samples exceeded the 14 day holding time. The first round of not available. testing was intended to provide a scan for contamination. Subsequent testing was award Otter Rescue Center Wage 20 nvironmental Site invest. ion APPENDIX 8.2 SEWARD OTTER RESCUE CENTER 8.2 AIR PHOTO INTERPRETATION Air Photo interpretation 30 March 1964 A narrow elongate ditch located about 50 feet south of the building that is now the Teen Center extended in an east - west direction. The ditch was parallel to the southern most railroad track and was about 10 feet north of the track. Drainage from the east would probably move onto the Otter Rescue site if intercepted by the trench. Nondescript debris was scattered along the south side and within the ditch. Some minor gullying was observed on the ditch walls suggesting that the ditch had been emplaced for several years prior to 1964. Tract 2 did not appear to have trees or shrubs growing on the site. The area west of the "Teen" building was used for storage. The entire site appears to have been used by vehicles or for storage. 14 April 1964 At least 5 sets of rails were observed south of the ditch south of the "Teen" building. Two sets of rails merged immediately south of the ditch south of the "Teen" building. This area appeared to be a staging area for the railroad. Many items were stored on the south side of the rails. 14 July 1975 Rails are not visible near the ditch. The ditch exists and trees or tall shrubs were growing along the -north side of the ditch. Part of the ditch appears to have been filled. A chain link type fence has been constructed along the western portion of the site. .-most of the site appears to still be in use. Minor storage existed south and east of the "Teen" building. Vegetation growth was restricted to the abandoned ditch or areas adjacent to the "Teen" building and along Railway Ave. The lot to the south appears to have been graded. An cicngatc• llwatp° arc-Z c-xrc-v5 fron the a :' a neap the southern lot. A Leen COi15=- _t•_ eu t ■ 'ewa re otter Rescue Center rr�'�i'onmental Site %nvest . _:ion -'qe 21 otter Rescue site above the diteh that the Rescue Center site, . °nee extended into The gas station across appears to be in use, Railway Ave, from the "Teen" building is currentl trench is open where the water main the trench. Y located and soil is piled on the west sid e of 13 Alugust 1976 The vegetation ears Previous Year. Aafence hattern sp been to be the same as the boundary of the property. Placed along the southern 2 September 1979 moderaLow tely Vegetation (such y established on the as grass) appears a be and around the "Teen„ southwest from the northwest area An unve portion of the site southeastern corner o ea a the site diagonallystated road extends the f the site. The southeast to the Property appears unvegetated. A storage Portion of observed in that area was about the size of a truck trailer, g container northwest corner r. the shed type buildin wshape, and height site. g as located in the The adjacent Properlnyon the south is being used as Storage is mainlya g the perimeter of that lot, storage. 2 September 1985 The site appears vegetated, to have been filled and shrubs wereThe ditch was not observed, moderately along the western growing along most of the southernrb®undees er tall observed a boundary of the site. Storage y and and the site appears not to 9 was not the eastern most area. The eastern area lacking vegetation. be. in use except for area may have recently of use is not determinable d be service. A tank has Y (less than 2 ears and the the south side, been Placed near the Years) been put out of that was observed during is probablybuilding on g the 1989 site the same fuel tank Fences surround inspection. __adjacent tto he site and gates appear closed. storage with Most of the south continues t® The. boundar f the material stored near she used as been expanded (almost warehouse type building east near adjacent (almost doubled) towards the east.the site has 4 June 1963 nn aJrt1C11 c_ese._�;cnost cd tn; -till getate:: cnri `n Seward Otter Rescue Centp- _nvironmental Site Inves 3ation Page 22 of the east gate appears to have been used frequently by vehicles. About 25 orange or red drum -like features are stored on the eastern part of the site. ' Vegetation is absent, or less developed down gradient from this site. vegetation is also poorly developed or lacking in the southeast corner of the site in the same area where vehicle traffic was interpreted to have occurred. The surface color is dark brown and resembles fresh oil or peat. The easternmost portion of the site has 4 truck -trailer type units stored outside the fence. The eastern gate was open. The adjacent property to the south is still used for storage with most of the items stored near the common boundary. The gas station building on the north side of Railway avenue was intact. r Sekard Otter Rescue Center rn,�ironmental Site Inve gation APPENDIX 8.3 SEWARD OTTER RESCUE CENTER a.3 SOIL, LOGS Page 23 Seward Otter Rescue Center Log of Boring x 1 Logged by: D. Young and K. F'abing Location: Northern portion of Teen Center, property about 50 feet west of _ Driller: City of Seward Equipment: Date: Solid flight auger for power pole installation 1 May 1989 Time: 1100 ®' 4•31 Gray silty sand inches v y gravel (GP -GM), cobbles up to 4 grained sand angular, with coarse- to medium - organics as, damp. About 15 to 201 silt. Trace Metallic debris to 3 feet depth (fill). strapping consisting of small bolts and Sample I observed from surface down to 18 inches. Sample 1 (050189001) at 2.0 feet, grab. 1GA Se.jard Otter Rescue Center Fnvlronmental Site Inve gation Page 24 Seward Otter Rescue Center Log of_ Boring # 2 Logged by: D. Young and K. F'abing Location: Northern portion of property about 50 feet west of Teen Center. About 15 feet southwest of boring 1. Driller: City of Seward Equipment: Solid flight auger for power pole installation Date: 1 May 1989 Time: 1100 0- 6.0' Gray silty sandy gravel (GP -GM), cobbles up to 4 inches, very angular, with coarse- to medium - grained sand, damp. About 15 to 20% silt. Trace organics as rootlets to 6 inches depth (fill). Rust colored patch about 4 inches square observed below 0.5 feet. Sample 1 (050189002) at 4.0 feet, grab. i i Seward Otter Rescue Cent^- ^nvironmental Site Inve, 4ation °age 25 Seward Otter Rescue Center Log of Pit x 3 Logged by: D. Young Location: Eastern portion of p property. Pit extended from 32 feet to 47 feet south of southeast corner of Teen chain -link fence. Center and between 21 and 29 feet east of existing Excavator: Norcon Equipment: Cat 977 track -mounted backhoe Date: 2 May 1999 Time: 0857 0- 11.00 Olive black silt cobbles, boulders sandy gravel up to (GP -GM), angular Spherical and subdiscoid l 13 inch diameter. about 1 to 2 inches. Coarse ravel/ average size sand, about 10 % silt. and medium -grained wood chips. Soil is damp ace organics as decayed medium dense with depth. ° ploose near surface, on soil below 3 feet p de thYellowish brown staining or imbrication observed(fill)® apparent structure Iron rail, 3/4 inch pipe, and concrete casting (12 inch diameter) detected at 1.5 feet. 12 inch diameter pipe section, 10 fe at 2 feet depth. et long was observed Shale clasts and asbestos Pipe observed at 4 feet. mesh observed at observed erved type Wise feet. Iron pipe of 3 inch diameter was at 7 feet and black asphalt at 8 feet. An electric was detected cable (live) was observed at 5 feet and water main at 10 feet. Total depth 11.0 feet, Sample 1 at Sample 2 at 3.5 feet, sample 3 at 5 1.0 feet. at 7.0 feet, sample 5 at ge feet, sample 4 5 feat (for texture). Seward otter Rescue Cen' nvironmental Site Inve--e_gation ?age 26 Seward -Otter Rescue Center Log of Pit d 4 Logged by: D. Young Location: Between north -south orientated trailers and east - west orientated trailers, central portion of property. Pit is part of a shallow utility trench adjacent to eastern and northern most trailer that are orientated east -west. As -built not available Excavator: Norcon Equipment: Cat 977 track -mounted backhoe Date: 3 May 1989 Time: 0940 0.0- 1.01 Olive black silty sandy gravel (GP -GM), angular gravel up to 3 inches, medium- and coarse -grained sand, about 10 to 15% silt. organics as roots and rootlets, loose, damp (recent fill). 1.0- 1.81 olive black sandy gravel (GP), angular boulders up to 14 inches, medium- and coarse -grained sand. Loose and damp. Small rusty metal (like nails), 1/8 inch cable, rootlets (fill). Sample 1 @ 0.5 feet, sample 2 @ 1.0 feet. Seward otter Rescue Center �nJlr®nmental Site Inve .gation Page 27 Seward Otter Rescue Center Log of Pit # 6 Logged by: D. Young Location: Between north -south west orientated trail Py ntated trailers and east - Southern limit is adjacent to southern property. South side of edge southern of Excavator: Norc®n most trailer. As -built not available Equipment: Cat 977 track Date: 3 May 1989 -m®anted backhoe Time: 1727 0.0- 0.5' Olive black silt 4 inch diameter, Y sandy gravel (GM), cobbles up to matrixangular. About 10 to 20$ silt 0.5- 1.9, loose, damp (fill). Medium brown, sand inch diameter, Y gravel (GP). Gravel up to 1 well®rounded, subelongate, with a damps root) zone at the top of this layer, loose 1.9- g, P (fill ® Gray sandy gravel diameter, subanqul(GP cobbles. boulders up to 2 feet ar 8 feet Gravel of all sizes. Damp ba feet? no apparent structure(not saturated below g rootlets near the top u to(massive), roots and Wood fragments up to 1 inch diameter s1/4 u diameter. Total depth 8.5 feet. Sample 1 @ 2st fill. 2 @ 5.0 feet, sample 3 @ 8.01_ .0 feet , sample Seward Otter Rescue Cent— Page 29 Environmental Site Inve_ 4ation Seward Otter Rescue Center Log of Pit # 8 Logged by: K. Fabing Location: About 40 feet west of eastern fence, south half of site. As -built not available Excavator: Norcon Equipment: Cat 977 track -mounted backhoe Date: 4 May 1989 Time: 0945 0.0- 1.51 Olive black silty sandy gravel (GP -GM), loose, damp (fill). 1.5- 3.0' Organic layer with metallic debris and rebar (fill). Sample 1 @ 1.6 feet, sample 2 @ 3.0 feet fi Seward Otter Rescue Center Log of Pit # 9 Logged by: K. Fabing Location: Located in western part of property. Five feet north of northern most trailers, north of western end of eastern trailer that is oriented east -west. Excavator: Norcon Equipment: Cat 977 track -mounted backhoe Date: 4 May 1989 Time: 1019 0.0- 0.5' Olive gray silty sandy gravel (GP-G14), cobbles up to 7 inches, loose, damp (fill). 0.5- 1.01 Reddish sandy gravel (GP), contains abundant red brick fragments. Contains coal fragments, damp, loose. 11.0- 5.0 Brown sandy gravel, cobbles to 6 inches, massive (no apparent structure). Contains coal and wood fragments, loose to very loose, damp (fill). Sample i @ 2.0 feet, sample 2 @ 5.0 feet FIGURE I L®CATION jfAP J IL\�'•� a •� • 1 , I 'a Scale 4000' 1" —000 —2000 0 •000 _ eo0o 1200 I I Q � I n: T 1-- - �4ACN! GAS PUMP G 1�,g85 tc — ME SHOP z ' WAREHOUSE�wh� WAREHOUSE �ISTAGING AREA 1864 cp O� 55 GAL DRU►IS `\ OHO (35) 1989 DATES BEFORE 1989 R1 PRESEI`IT INFORMATION FROM IIISIORICAL All? PHOTOS LOCATIONS ARE APPROXIMATE NOT TO SCALE \ D0CK 1889 HAY PIT 9 ® 4.6 (1 ° ) 4.9 (2' ) OTTER RESCUE CENTER Ic FN \_ 1 8®R'n�`s ' 9 (2') ° kir. rl �J boo110 PIT 1 z (7') UAMOLE 0 PIT B 0� 36.9 (0.5°) ® 35.4 (1.6') \ 44.4 (1.0') 17.00 °) PIT 5 19.4 (1') PIT 7 42.5 (2 ° ) ® 59.6 (5°) /s PIT 6 % ® 29j.EXPLANATION ti'�u � 99 5 5 s(8(6') 0 TOTAL PEfREOLEUM HYDROCARBON (PPE i AND DEPTH (FEET) J Scale 1" a 40° sa so ieo OTTER RESCUE CENTER Y cNEEM0 lop •` NEW 1,1 I Qk 1 OF G;C scale 1 a® 40, -AO -20 0 AO 90 ,- L_ ! I I m 0 n_ LI 1 _1 O U� n_ _1 O F-- SUMMARY OF Hy.DROCARBON DETECTION 1 of 2 2 2`' UPPEH FOUk111 Ir- 140 £P DES 1 4�St I SO% OF SAMPLES HAVE I'14 vk UES Wl111111 THE BOX 'ally 10WtH FOURn1 2 J 4 SAMPLE DEPTH (feet) am V 8 J CHEMIC-LL & GEOLOGICAL LABORATORIES OFALASK4. IvC 5533 8 STREET ANCHORAGE. ALASKA 99518 TELEPHONE (907) 562-2343 FEDERAL TAX 10 0 92-0040AA0 7" 14- qy i ii ......................... . ................................................................................................ k, - ------------------------------------------------------------------------------------------------------ Ao I `\ CHEARCIL & GEOLOG L AL LABORATORIES OF ALA.�.W i YA1, 17 ii c•ace:►:tot _:2PF.:9 :. --- �r ANCHORAGE. ALASKA 4951® rcIEPHON FEDERAL T 'D . 9i p0�OT E (907) 562.2]a, sC •� —ram• 'V �. :y� ietr : '):7e:ea eT :AN T:G9Glti:-� - Sr. Q ieoorte c. aca i� ............._3 .. �i ............................................................................ It r Plr LTeLer ;ante; G°A die ; i?]:LJ3 NolQ.i/ -.P-,I .PA dCe] `es:_ ........'......................................................... CHEMICAL & GEOLOGICAL LABORATORIES OFALASKA. INC.. 'd 5633 8 STREET ANCHORAGE. ALASKA 99518 TELEPHON@S1907) 562.2343 FEDERAL TAX TO a 920040u0 �. = 1 dltft Coeoietea vJ,i 12 6? :♦ Jt::eL 7liC STEM!,' malt! ne7 .• Send ivvett: )e: ............................................................................................................................. .Eo Lel • .trz -aD :CAL :a ) �lt:l� :�:�: ?!tame[![ .!Stec e.esuai'1:L'ts .._________________________________________________________________________________________________.-__-- !at -led il=ts :i: ....................................................................................... GM4-2 CJY100-50 Z4.14:. 2.1.23 SO.31.5 13.0"- 1.2:i-.75 :1.:-IS.0 1t.I". .73-0.107 1S. u-:,7t� 19.4t. U.127.O.Oa]7 -1.75•:.36 S,SV, 0.0937.0.0394 e-36-1.00 L.20 1. 3.01104-0.0197 1,00-0,500 E.36•h I .1.0137-C.3090 0.500.0.230 0.02•'. 0.00100-0.U049 9.Zp0-O.IZ3 - .37''. 0.0040.0.QOZZ 0.123.0.063 0.0015-LT0.0025 0.063-LT0.Oa3 100.00% a "�'___...._.............................................................................................. CHEMICAL & GEOLOGIC4-L L4BORATORIES OF AL.9.SKA! INC.. 5873 8 STAEET ANCHORAGE. ALASKA 99518 T FEDERAL PAX ID • 92•0040A�ERNDNE (907f 56Z•27�3 g SI! �1I 25 16::� Fse. :o®piotea wkr 17 29 _sese�la:7 _bEPE9 C. .rC: Sard ceport! :. ................. ...................... ..................... ............................. I i Pl IYAO[Ot l!l CfG - .Cu, Q:r .-- dfc not �'OLtuIA FI7B�:Ahi0S3 --- ------- :os _-------__ -ii .x is I7n CHE.NIGiL & GEOLOGIGIL L�80RATORIES OF° AL,-�SKA. 1��'C. - �=' _ off_ 5633 ® STREET ANCHORAGE. ALASKA 99518 TELEPHONE (907) 562-23A3 e+ FEDERAL TAX 10 4 92-0040"0 ea:e RICO:: ?..n:c:: '+Ji :. :3 + 1i tie so.a :i :oL36i901 S:ce_ti;7.C: °:.: !Ali; a .C=. 4 .Ea. :T S_panuOc :SiEPHI :. EDE .:lent zeta _-.- :art a¢F:Itl il;LCS Ik: ........................................................................................................................... f ?:i9GCE'"! iri:30t1Ra69S Se.5 :,ieg :iA 4:e . ........................................................................................................ I -lYE.'"CAL. & GEOLOGICAL. L4-BORATORIES OF , \ ALASKA. I�� C..= i� 5533 8 STREET ANCHORAGE. ALASKA 995ia TELEPHONE 1907) 562.23,3 4• FEDERAL TAX 10 r 92-0040440 ,. n; '$. • eck �tcf: c :etf i.a?pf: :1t.;ad: M6L .L3jrn .•'+ 1. - .JaDlftfl YJIY �. .� - 3upantror C. 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ALASKA 99518 TELEPHONE 190?) 56 A11a INC. + FEQERAL TAX Ip N 92-00a0aa0 esdta::_ RUM 37 :AMpt: 230 "et Grtec -,+ :ate °• :: 733=35C0) Si !*` :CiiS� �. :AY3;E ! -==plseed YJY !7 B9 ia,,orsaect 5:.rpF :y C'J =A l;dl c eLf 6 ::eana dv :d9 YOQtiG: ii:'q ?.la:SJ Send Aeyorer :�: ............ s.....................;";.............................. .. eFFIE!............................................... :n daf 1: 5174 Lac S,;i :0 „ laraIDetar 'eet"d -------------------------------- f.et C.tJUttltt dl!ava0.e ::Z:LSR4 HT:ROGA,HBOHS urslta ---A-`•5 _ 40A N®RTECH Phase 1 Site Assessment Alaska Sea Life Center November, 1993 Appendix E Harding Lawson Associates Post -Operational Site Assessment Otter Rescue Center Seward, Alaska i Ma,ding Lswson Assodatss A Report Prepared for Guess A Rudd 510 L Street, Suite 700 Anchorage, Alaska 99501 POST -OPERATIONAL SITE ASSESSMENT OTTER RESCUE CENTER SEWARD, AWKA HLA Job No. 19592,003.08 by Margarit A. Murdocc Senior Environmental Specialist I George M. Drewett Director of Environmental Services Harding Lawson Associates 601 East 57th Place Anchorage, Alaska 99518 (907) 563-8102 January 15, 1991 LP Harding Lawson Assoclatss LIST OF TABLES Table I Analytical Results October 29, 1989....................... 13 Table 2 Analytical Results - September 24, 1990..................... 15 LIST OF ILLUSTRATIONS Plate I Vicinity Map Plate 2 Site Plan Plate 3 Sampling Locations and TPH Concentrations 10/29/89 l Plate 4 Sampling Locations and TPH Concentrations 9/24/90 Plate 5 Excavation of October 11, 1990 0502R j j j i Harding Lawson Assoclat.s DISCLAIMER This report has been prepared for the exclusive use of Guess & Rudd. Within the limitations of the schedule and budget of our services, this report was prepared in general accordance with the accepted professional Stan- dards of practice in Alaska at the time of the assignment. No other represen- tation, warranty or guarantee, express or implied, is made. This assessment was based primarily on information obtained from interviews with persons familiar with Exxon's use of the Property and inter- views with regulatory personnel; our site reconnaissance; a review of histori- cal documents, including selected aerial photographs! and a review of the pre- operational site assessment . re oat P These data document site conditions at specific points in time and do not provide a continuous record of site activ- ity. Therefore, it is possible that hazardous materials maybe present were not detected during this assessment. Additionally, we acknowledge the t potential for subsurface migration of hazardous materials from off -site sources. Statements made herein are made with no specific knowledge of sub- surface conditions other than those reflected in our sampling programs. The August 1990 soil removal information contained in this report was conveyed to Harding Lawson Associates verbally, as site activities had ceased prior to our reconnaissance survey. Our sampling programs were based on limited information about the site and soil removal activities, and were intended to assess only total petroleum hydrocarbon (TPH) concentrations in surficial soils at the site at the time of our sampling efforts. 0502R iv 100 Harding Lawson Assoeiatas i 1.0 INTRODUCTION Exxon Company, USA (Exxon) leased property from the City of Seward during cleanup of the Exxon Valdez oil spill. Throughout this report, the property is referred to as the Otter Rescue Center (the site). At the request of Guess 5 Rudd, Harding Lawson Associates (HLA) conducted a post -operational site assessment to evaluate environmental conditions at the Otter Rescue Cen- ter following Exxon's use. This report details HLA's site assessment methods and results. 1.1 PURPOSE The site assessment was conducted to assess total petroleum hydro- carbon (TPH) concentrations in near surface soils at the property formerly used by Exxon for the Otter Rescue Center, which could potentially be associ- ated with Exxon's use of the property. 1.2 SITE LOCATION The Otter Rescue Center is located on Tract 2 of the Seward Water- front Tracts, in the southwest quarter of Section 10, Township 1 South, Range 1 West, Seward Meridian. As shown on Plate 1, the site is located along the northwestern margin of Resurrection Bay in downtown Seward and is accessible from Railroad and Fourth Avenues. Tract 2 was leased from the City of Seward in late April 1989. As shown on Plate 2, the Seward Teen Center is located in the northeast corner of 050251 _ _ Harding Lawson AssocistN Tract 2 and is separated from the Otter Rescue Center by a chain -link fence. The lease did not include the portion of Tract 2 occupied by the Teen Center. 1.3 SCOPE OF SE_ R_ yes This assessment was authorized by Mr. John Miller of Guess d Rudd through a contract between VECO, Inc. and HLA dated October 1989. Project tasks were conducted in accordance with the scope of services presented in our proposal dated September 29, 1989, as revised August 14, 1990, and October Jo, 1990. To assess the potential impacts to the site as a result of Exxon's Oil spill cleanup activities, HLA was contracted to conduct a Phase 1 and rr Phase 2 environmental assessment, which consisted of the following activities: Phase 1 ® Documenting historical and Exxon site use by reviewing doc- uments and interviewing individualfamiliar with the use of the site, Includingsubcontractor and government agency public Assassin 9 y personnel; g the reported handling of materials contaminated with weathered crude oil or other substances associated with the cleanup effort by conducting a site reconnaissance survey; Identifying data quality objectives for conducting the Phase 2 assessment. ft"€ 2 • Preparing a site -specific sampling plan; • Assessing the potential for surficial contamination at the site through shallow soil sampling and analysis; Summarizing findings and preparin and 2 assessments and results, 9 a report describing the Phase 1 0502R 2 4 nn H•rdlnp L•w•on 1••ocla/a• 2.0 PHASE 1 SITE ASSESSMENT The Phase I site assessment was conducted to document site use, and to determine the need for, and extent of, site sampling in a Phase 2. site assessment. Information was gathered through a site reconnaissance, public records research, and informal interviews with people associated with the site. Because Exxon's activities at the site ceased prior to our site recon- naissance, much of the information concerning site usage could not be visually verified by HLA representatives. HLA staff reviewed City of Seward and Alaska Department of Envi- ronmental Conservation (ADEC) records and a 1989 pre -operational site assess- ment report by Environmental Services Ltd., and interviewed the following people: • Walt Phillips, VECO Environmental Group • Fred Klingman, VECO Seward Operations Supervisor • Glen Davis, VECO Environmental Group • Michael Roberts, VECO Environmental Group • Robert Dragnich, Exxon Environmental Manager • Kerry Martin, City of Seward Engineer • Richard Laws, Exxon Wildlife Coordinator • Al Schafer, Afognak Lumber Company • Glen Raz, Exxon • Rex Coulter, Exxon • Jim McCracken, local resident • Don Seagren, ADEC Kenai District Office Mardln9 Lawson A z*C1&taf 2.2 RESULT 2.2.1 Surrounding uses A small one-story building is located in the northeast corner of Tract 2. This building is separated from the Otter Rescue Center by a chain - link fence, and was reportedly built prior to 1964 by the Alaska Railroad as part of its dock facilities. After 1964, the building housed a variety of businesses, including an upholstery shop. Since the mid 1910s, the facility has been used as the Seward Teen Center (Plate 2). There are two fuel storage 3 tanks associated with the Seward Teen Center building. A 500-gallon, above- ground tank is located on the south side of the building and is used for heat- ing fuel. An underground tank of unknown capacity is located at the northwest corner of the building, adjacent to Railroad Avenue. It is not known whether this tank still services the Teen Center Building. Exxon did not use the Seward Teen Center facilities during oil spill cleanup operations. The City of Seward owns and/or leases parcels of land immediately adjacent to the Otter Rescue Center to the south, west, and east. The parcel south of the Otter Rescue Center (Tract 3), is leased to Northern Stevedoring and Handling Corporation which uses it as a storage yard. HLA observed 55- gallon drums, automobiles, fish processing equipment, and commercial fishing equipment stored on site. The yard is paved. The parcel west of the Otter Rescue Center is leased to the University of Alaska Marine Science Institute, Seward Marine Station. The State of Alaska Marine Highway System uses the property southeast of the Otter Rescue Center for the Seward Ferry Terminal. �.w 0502R �n� Harding Lawson ♦ssoclatas An abandoned gasoline service station is located on the northwest corner of the intersection of Railroad and Fourth avenues. According to Mr. Kerry Martin, City of Seward Engineer, the station has not been used for over 25 years. Mr. Martin did not know if there were any abandoned fuel storage tanks beneath the property. The Seward Machine Shop, located west of the abandoned gas station, has been closed since the owner died approximately 5 or 6 years ago. The windows are covered with boards and it is not known if there are any abandoned drums or storage tanks on the property. 2.2.2 Pre -Exxon Site Use The area south of Railroad Avenue between First and Fourth Avenues is the site of the original Alaska Railroad dock. The railroad operated dock facilities at this location from approximately 1906 through 1964. The origi- nal dock consisted of a wooden pier extending into Resurrection Bay. Sometime prior to the March 27, 1964 earthquake, a concrete dock was built. The new dock and facilities were built on a filled area south of Railroad Avenue. This area was filled with poorly sorted sand and gravel from Lowell Creek deposits (National Academy of Sciences, 1971). The 1964 earthquake and subsequent seiches and tsunami virtually destroyed the railroad dock and facilities. Fuel storage tanks in Seward were also destroyed, spilling large amounts of refined fuel near the site (National Academy of Sciences, 1971). After the earthquake, the railroad moved its dock and facilities to a more seismically stable location in Seward. 0502R 5 Warding Lawson lssoc/atas i The waterfront property, including the Otter Rescue Center site (Tract 2), has been owned by the City of Seward since 1964. According to Mr. Martin, Tract 2 has not been used extensively, except for storage and some equipment maintenance. The tract was leased for a short time during the early 1980s. During this lease, a chain -link fence was constructed around the site, but the site was not occupied or used. According to Mr. Martin, there have been no documented spills of petroleum products or hazardous materials at the site since 1964. However, Mr. Martin stated that, based on the use of the property, small spills and/or leaks of diesel fuel and oil may have occurred. There are active and abandoned sewer pipe appurtenances beneath the Otter Res- cue Center. Prior to usingthe ..r property, Exxon removed approximately twenty- five 55-gallon drums of unknown material from the Otter Rescue Center. The drums had been stored directly on the ground in the eastern portion of the site. Some of these drums reportedly leaked onto the ground surface (ESL, 1989). The contents of the drums are unknown. I 1 2.2.3 �..�N From April 30 through May 4, 1989, Environmental Services Ltd. (ESL) conducted an environmental site investigation of the Otter Rescue Cen- ter. ESL's investigation report "evaluates the nature and extent of environ- mental contamination at the Seward Otter Rescue site" (ESL, 1989). ESL per- formed a site reconnaissance and sampled subsurface soils. The following is a summary of ESL's investigation taken directly from their 1989 report: 0502R 6 4 r%A Harding Lawson Assoclatas A preliminary inspection of the site on the 30th of April, 1989 was con- ducted . At that time 4 men were on the site setting large wooden blocks as foundations for ATCO trailers. Most of the site had been cleared and gravel fill placed on the ground surface prior to inspec- tion. . . . about 20 to 25 drums of 55 gallon capacity were removed from the eastern portion of the site the previous day. The foot prints of at least 10 drums were observed in that same area and hydrocarbon substances were observed associated with some of those footprints. A subsurface investigation was conducted from May 1 to May 4, 1989. Samples were collected from a solid flight auger that was used to drill two holes for power pole installation. Four pits . were excavated using a backhoe during the course of site development and consequently sampled from the side walls using a rock pick and sample jars. Test pits . were excavated -expressly for sampling and were sampled from the side walls using the same method. Sampling results of Total Petroleum Hydrocarbons . . . suggest that hydrocarbons are widely distributed over the site near the surface and to the total depth of investigation, 8.5 feet. Back ground values are assumed to be 4.6 parts per million (ppm) total petroleum hydrocarbons (TPH) . The highest TPH values were 15,600 ppa sampled from a rela- tive fresh spill near the fuel tank and south of the Teen Center. [The Teen Center fuel tank is not located within Exxon's lease boundary) A geophysical survey was conducted over -a portion of --the site to inves- tigate for buried metal. This investigation was restricted by construc- tion and surface metal such as abandoned railroad tracks and heavy equipment . photo interpretation and this geophysical investigation suggest that buried tracks could exist in this area. However, trenches with buried metal debris such as 55 gallon drums would produce similar results. Ground water was not encountered during this site investigation due to limitations of sampling equipment. However, a soil sample collected at a depth of 8.5 feet . . . was wet (not saturated). Because the damp sample from 8.0 feet depth of this same pit had a low TPH value and the wet sample immediately below had a higher value, this sample is inter- preted to indicate that the local ground water may be contaminated. We predict that the water table at this site fluctuates approximately 20 feet with the tides. Results from sampling analysis, field observations, and interviews sug- gest the [sic) most or all of the Seward utter Rescue Site is contami- nated with low level hydrocarbons from fuels and waste oil. Two samples were obtained from the fill placed during construction. One sample was 36.9 ppm total petroleum hydrocarbon and the other 4.6 ppm. These results suggest that the recent fill may also be contaminated. Harding Lawson 4ssoclstas i Results from the geophysical investigation and air photo interpretation suggest that buried waste exists in the eastern portion of the site and probably extends west beyond the survey limits. The nature of the waste could not be determined by these techniques. Underground storm drains and sewer systems may leak below the ground surface. These utilities appear to have been Installed prior to the large earthquake of 1964 and some have been abandoned since. We found no physical evidence for damaged systems but contend that shaking from the 1964 earthquake could easily have caused subsurface damage that hasn't been detected. Although some of these utilities have been aban- doned, site inspections suggest that they are still in use and may be allowing contaminants) from other areas of Seward to seep in the ground. 2.2.4 bite Use by Exxon The Otter Rescue Center was originally leased to VECO by the of Seward for the period April 26, 1989, through August 23, 1989. On City September 26, 1989, the lease period was extended to April 30, 1990. The lease was assigned to Exxon on April 6, 1990. Exxon then negotiated its own Tease with the City for the period April 10 p 1990, through September 30, 1990. The Otter Rescue Center facilities were constructed by Norcon, a VECO subcontractor. The Center was operated by an Exxon environmental subcon- tractor. From April 26 through 9 October 1, 1989, Exxon and its subcontractors used the Otter Rescue Center to wash and care for oiled sea otters, other marine mammals, and sea birds. As shown on plate 2, the Center consisted of animal husbandry trailers; sea otter cages, totes, and pens; two personnel trailers; and miscellaneous storage trailers. The animal husbandry and per- sonnel trailers were connected by raised wooden walkways. oso2R 8 . Ior Harding Lawson ♦ssociates According to Exxon's April 27, 1989, engineering plans (Williams, 1989), fresh water and salt water were used at the Center. Water was circu- lated to the trailers, pens, and cages through an above -ground piping system located beneath the wooden walkways. Two below -ground 2,500-gallon collection tanks were located on -site, as shown on Plate 2. One tank was used to store fresh water for circulation; the other was a wastewater collection tank. The wastewater collection tank was emptied periodically using a vacuum truck that transported the wastewater off -site for treatment and disposal. A wastewater treatment system was reportedly never constructed or used at this site. Exxon installed one above -ground 500-gallon heating oil tank at the site to heat the animal husbandry trailers. As shown on Plate 2, the tank was located on the north side of the trailers, in a lined area surrounded by a gravel berm. An awning was constructed over the tank to protect it from rain and snow. A propane tank was used to heat the personnel trailers and was reportedly located at the north end of these trailers. 2.2.5 Site Closure HLA conducted an on -site reconnaissance on October 12, 1989. At this time, the Otter Rescue Center was no longer operational but had not been demobilized. Exxon did not demobilize the Otter Rescue Center in case it would be needed during the 1990 oil spill cleanup effort. 0502R 9 Nording Lawson Assoclit&s 3.0 PHASE 2 SITE ASSESSMENT A soil sampling program was designed to assess whether Exxon's activities contributed to petroleum hydrocarbon contamination at the site. The sampling program was implemented according to the following procedures. 3.1 METHODS ten r AfltMM Sample collection and laboratory procedures are summarized below and further described in section 5.0 of the 'Quality Assurance Project Plan, Post -Operational Environmental Assessments, VECO and VECO Subcontractor Properties, Alaska,• (QAPP) dated October 20 89. dures used during this project are described'g in our •Joblth and safety proce- October 18, Iggg. Y Plan' dated Prior to sampling at each location, field equipment was with a trisodium phosphate (TSP) detergent cleaned wash, rinsed with potable water, and then rinsed with deionized (DI) water. After sampling, wash and rinse water were disposed on site. Sampling equipment was kept on clean Polyethy- lene plastic sheeting to prevent cross -contamination of samples A pick was used to loosen the heavily compacted soils. Loose material was then collected using a clean stainless steel trowel or spoon. Cobbles and fragments of cobbles larger than 1.5 inches in diameter were dis. carded. The material smaller than 1.5 inches in diameter was collected in a pre -cleaned wide -mouth glass jar with a Teflon -lined cap. One sample jar was used per sampling location. 05024 10 enn Hard►ng Lawson As•Dolat•• Each sample jar was labeled with the project number, the date and time of collection, the sampler's initials, and a unique sample number. The sample number consists of four digits; the first two digits denote the site, and the last two digits denote the sample number. The above information, the sample matrix, and analysis requested were entered on an HLA chain -of -custody form. The samples were stored in a cooler containing Blue Ice and shipped to Chemical and Geological Laboratories of Alaska (Chem Lab) for analysis. The samples were analyzed for TPH using U.S. Environmental Protection Agency (EPA) Method 418.1. 3.2 DAT► QUALITv ASSESSMENT The data quality objectives for the analysis of TPH using EPA Method 418.1 were specified in the QAPP and are summarized below: • Precision, defined as relative percent difference, was expected to be within three standard deviation units from the mean recovery of historical data. • Accuracy, defined as percent recovery, was expected to be within three standard deviation units from the mean percent recovery of historical data. • Method blanks were expected not to contain TPH concentrations greater than five times the method detection limit. • Continuing calibration verification standards were expected to be within 10 percent of the known concentration. Method blanks and continuing calibration verifications were per- formed for each analytical batch and met the specified objectives. One matrix spike and one matrix duplicate were performed for each analytical batch and MM29 11 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-138 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A LEASE AGREEMENT WITH THE SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE (SAAMS) FOR THE TENANCY OF THE WEST AND CENTRAL OFFICE SPACES, INCLUDING COMMON AREAS AND RESTROOMS OF THE RAILROAD DEPOT ANNEX BUILDING LOCATED AT 501 RAILWAY AVENUE WHEREAS, as of January 1, 2010 the lease with Edward Jones will expire; and, WHEREAS, as of .Tune 1, 2010 the lease with Petro Plaza will expire; and, WHEREAS, the electric department and the city are trying to save money in the area of rent expense;and, WHEREAS, the electric department is trying to consolidate all staff into one location; and, WHEREAS, the electric department is scheduled to occupy a warehouse/office building in approximately two years; and, WHEREAS, in the meantime the electric department staff must be able to function in an office setting; and, WHEREAS, city hall does not have additional room to house the electric department; and, WHEREAS, SAAMS already had plans to vacate the center office and west wing; and, WHEREAS, the lease agreement is mutually acceptable to both parties, 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 a lease agreement with Seward Association for the Advancement of Marine Science, to lease and occupy the railroad depot annex building. Section 2. The term of this lease is from December 14, 2009 through December 31, 2011. Section 3. This resolution shall take effect immediately upon adoption. Council Agenda Statement ... Meeting Date: December 14, 2009 To: Mayor and City Council From: Phillip Oates, City Manager Agenda Item: Authorizing the City Manager to enter into a Lease Agreement for office space in the Railroad Depot BACKGROUND & JUSTIFICATION• The electric department has two lease agreements expiring within six months of each other in 2010. Through research, we have concluded that moving into an alternate location would be practical for the following reasons: First, the electric department would be in one location instead of multiple locations. This is preferable because there are situations and paperwork that the staff must discuss in person instead of by phone or email. In some situations the electric staff must converse with each other while on a teleconference phone call. The transfer of paperwork is an everyday occurrence within the department. Second, the electric department and the city would be saving money by being in fewer and less expensive locations. The electric department will have only one lease payment instead of two and has negotiated a less expensive lease than either of the current leases. The electric department cannot occupy city hall due to the fact that there isn't any room available. Leasing the Annex building is a temporary situation; the electric department is currently moving forward on an office/warehouse that staff can permanently move into. For this reason the lease agreement is for two years. However, because of the uncertainty of time and funds, the electric department will have an option to extend the lease in one year increments. INTENT: The City Council authorizes the City Manager to enter into the lease agreement between the City of Seward and Seward Association for the Advancement of Marine Science. This agreement allows the electric department use of the facility commonly known as the Railroad Depot Annex Building. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: The City will pay all utilities( including heating fuel), will be responsible for snow removal on sidewalk, pathways, etc., be responsible to provide cleaning services for the building, will provide general liability and auto liability insurance. The estimated cost ofutilities and heating fuel is $15,000 per year, with in -kind cleaning and snow removal costs of approximately $6,000, and $1,500 for insurance. This is a total cost of approximately $22,500 per year, for the electric fund, versus the current lease amounts of $9,900 (Edward Jones) plus $14,000 (Petro Plaza). Tlus will result in a decrease to the Electric Dept lease costs of $1,400, and a decrease in community development of $28,000 (by moving upstairs City Hall), for an overall decrease in City lease costs of approx. $29,400. nn4 Approved by Finance Department: �� RECOMMENDATION: Council authorization of Resolution 2009-137 approving the City Manager's decision to enter into a lease agreement with Seward Association for the Advancement of Marine Science. 9n9 RENTAL AGREEMENT NUMBER 7000-001 Historic Railroad Depot 2010-2011 For valuable consideration received and acknowledged, the Seward Association for the Advancement of Marine Science, dba, Alaska SeaLife Center ("ASLC"), an Alaska non-profit corporation, rents to the City of Seward ("City") tenancy of the West and Central Office spaces, including common areas and restrooms ("Premises") of the Historic Railroad Depot at 501 Railway Avenue ("Depot") furnished for commercial office occupancy ("the Premises"), in accordance with the following terms and conditions: 1. TERM. This Agreement shall commence December 14, 2009 and terminate on December 31, 2011. The term may be extended for additional one year terms upon the mutual agreement of the Parties. The City shall notify the ASLC of its request to extend the lease term by providing written notice no later than sixty days prior to the expiration of the current term. 2. RENT. City agrees to pay rent of $1.00 per year beginning January 1, 2010. 3. USE. City agrees to use the leased Premises (shaded on Exhibit A) only as administrative office and meeting space for its electrical department and for no other purpose without prior written consent of ASLC. City will use the Railway Avenue door for public access. The two south doors will be utilized for staff access only. The Depot is a non-smoking facility, and no animals are allowed on the premises except for service dogs. 4. MAINTENANCE. ASLC shall deliver the leased Premises in good order and in a clean and sanitary condition. City shall maintain the leased Premises in the same good order and in the same clean and sanitary condition, reasonable wear and tear excepted. City shall be responsible for all custodial requirements of the restrooms, including restroom supplies. Further, City shall be responsible for keeping the Depot building decks, sidewalks and pathways clear of snow and ice. 5. REPAIRS. ASLC shall be responsible for all repairs and replacement of the Depot, including the ASLC owned furnishings, fixtures and equipment in the leased Premises, provided however that City shall be responsible for repairs and replacements caused by abusive use or gross neglect of the leased Premises by the tenants. 6. UTILITIES. All Depot utility accounts (Electricity, Water, Sewer, and Heating Oil) shall be transferred to the City effective December 14, 2009 and terminate on December 31, 2011, unless the term is extended by the mutual agreement of the Parties. The City shall be responsible for its telecommunication, radio, inteanet and internet requirements. 7. ALTERATIONS. City shall not alter the premise or furnishings in any manner without prior written consent of ASLC. The City may affix appropriate removable signage on the public entry door. City shall not erect exterior signage without the prior written approval of ASLC, which approval will not unreasonably be withheld. S. ACCESS AND QUIET ENJOYMENT. City shall allow ASLC access to the leased Premises at all reasonable times for the purpose of inspection, to make necessary repairs or improvements or show the leased Premises to prospective buyers. City shall allow ASLC staff access to and use of the restrooms on the Premises at all times. ASLC shall provide City quiet enjoyment of the leased Premises. 9. PARKING. City will use the street parking along Railway Avenue for its vehicles and for public parking and four parking spaces in the ASLC parking lot adjacent to the Depot for employee parking. The City will move city vehicles when ASLC needs to manage and maintain the parking lot, including snow removal and sanding. 10. HOLD HARMLESS AND INDEMNIFICATION. In all matters and instances pertaining to this Agreement, each party agrees to hold harmless and indemnify the other party from and against any and all losses, damages, costs and fees, including attorney fees, arising from or pertaining to any personal injury, death, or property damage caused by or resulting from any act or omission of the indemnifying party, its agents, subcontractors, assigns, employees, guests or invitees. 11. INSURANCE. (a) City shall carry and maintain during the term of this Agreement comprehensive general liability insurance and commercial auto liability insurance of not less than One Million Dollars ($1,000,000.00) per occurrence and lawful Workers' Compensation insurance of not less than One Million Dollars ($1,000,000.00) per accident. (b) All policies of insurance except Workers' Compensation will name ASLC as an additional insured. All policies of insurance, including Workers' Compensation, will waive all rights of subrogation in favor of ASLC, and with ASLC listed as a party to be notified by the insurer in the event of termination or cancellation of coverage. Certificates of adequate insurance shall be produced for inspection and approval by the ASLC General Manager prior to ASLC executing this Agreement. 12. MODIFICATION. Any modifications to this Agreement will be by mutual written agreement of the parties. 13. TERMINATION. This Agreement may be terminated by written mutual agreement of the parties. 14. COMPLIANCE WITH LAW. ASLC and City mutually agree to comply with all government laws, ordinances, and regulations, and property covenants pertaining to the Premises and the use of the Premises as commercial office space. DATED and effective this day of December, 2009. Seward Association for the Advancement of Marine Science, dba, Alaska SeaLife Center: By: C; Ian M. Dutton, Ph.D., President and CEO City of Seward Phillip Oates, City Manager 2 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-139 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING PARTICIPATION IN THE 2010 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FOR A TOTAL OF $252,925 FOR AN ADA ACCESSIBLE BOARDWALK ALONG THE SOUTHERN EDGE OF THE SMALL BOAT HARBOR CONNECTING THE NEW SOUTH FLOAT SYSTEM (Q,M,N,O,P) WITH S FLOAT AND THE SOUTH LAUNCH RAMP AREAS, WHILE CREATING ADA ACCESSIBILITY THROUGHOUT THE HARBOR WHEREAS, an ADA accessible boardwalk along the southern edge of the harbor would benefit the harbor, the community of Seward and visitors to the area; and WHEREAS, the Council of the City of Seward wishes to provide an ADA small boat harbor boardwalk extension project to enhance the community; and WHEREAS, the goal of this project is to connect the new south float system (Q, �.. M, N, O, P) with S float and the south launch ramp areas, while creating better ADA accessibility throughout the harbor; and WHEREAS, the boardwalk would measure approximately 825 feet in length and would be made out of Trex (a composite material made of recycled plastic and wood resources); and WHEREAS, the harbor would use its own labor and city equipment for most of the work to complete the project, except for necessary cement work; and WHEREAS, this boardwalk will improve and not impede any future development plans for the South Harbor, and will create a safer environment for accessing this area year-round; and WHEREAS, the cost of this labor (as well as city permitting and inspection) would make up our in -kind contribution for this grant for a total of $83,711.26, the City will match $20,000 and requests $149,213.67 from the Alaska Department of Commerce, Community and Economic Development fund for a total project fund of $252,925.00: and WHEREAS, the City of Seward is the applicant for a grant in the amount of $252,925.00 and a request from the Alaska Department of Commerce, Community and Economic Development (hereinafter 'Department") for a total of $149,213.67, under the CDBG program. CITY OF SEWARD, ALASKA RESOLUTION 2009-139 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council and administration clearly identified why this project is needed and why this ADA accessibility is important to the community. Section 2. The city manager of the City of Seward is hereby authorized to negotiate and execute any and all documents required for granting and managing funds on behalf of this organization. Section 3. The city manager is also authorized to execute subsequent amendments to said grant agreement to provide for adjustments to the project within the scope of services or tasks, based upon the needs of the project. Section 4. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14`' day of December, 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor ATTEST: Jean Lewis, CMC City Clerk (City Seal) Council Agenda Statement Meeting Date: December 14, 2009 To: City Council Through: City Manager, Phillip Oates From: Assistant to the City Manager, Kirsten Vesel Agenda Item: Resolution 2009-139, Authorizing participation in the 2010 community development block grant program for a total of $252,925 for an ADA accessible boardwalk along the southern edge ofthe small boat harbor connecting the new south flat system (Q,M,N,O,P) with S Float and the south launch ramp areas, while creating ADA accessibility throughout the harbor. BACKGROUND & JUSTIFICATION• An ADA accessible boardwalk along the southern edge of the harbor would benefit the harbor, the community of Seward and visitors to the area. The goal of this project is to connect the new south float system (Q, M, N, O, P) with S float and the south launch ramp areas, while creating better ADA accessibility throughout the harbor. The boardwalk would measure approximately 825 feet in length and would be made out of Trex (a composite material made of recycled plastic and wood resources). The harbor would use its own labor and city equipment for most of the work to complete the project, except for necessary cement work. This boardwalk will improve and not impede any future development plans for the South Harbor, and will create a safer environment for accessing this area year-round. The cost of this labor (as well as city permitting and inspection) would make up the City's in -kind contribution for the Alaska Department of Commerce, Community and Economic Development grant for a total of $83,711.26, the city will match $20,000 and requests $149,213.67 from the Alaska Department of Commerce, Community and Economic Development fund for a total project fund of $252,925.00. The City of Seward is the applicant for a grant in the amount of $252,925.00 and a request from the Alaska Department of Commerce, Community and Economic Development (hereinafter "Department") for a total of$149,213.67, under the CDBG program. It is essential the City Council and administration clearly identify why this project is needed and why this ADA accessibility is important to the community. The city council also needs to authorize the city manager of the City of Seward to negotiate and execute any and all documents required for granting and managing funds on behalf of this organization and execute subsequent amendments to said grant agreement to provide for adjustments to the project within the scope of services or tasks, based upon the needs of the project. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. FISCAL NOTE: This grant will require a City match in the amount of $20,000, which is intended to come from the Harbor Enterprise Fund. Approved by Finance Department: X .&��44N4� RECOMMENDATION: Council approve Resolution 2009-i39,Authorizing participation in the 2010 Community Development Block Grant program for a total of $252,925 for an ADA accessible boardwalk along the southern edge of the small boat harbor connecting the new south flat system (Q,M,N,O,P) with S Float and the south launch ramp areas, while creating ADA accessibility throughout the harbor. 'ono APPENDIX A: 2010 CDBG GRANT REQUEST BUDGET- CITY OF SEWARD HARBOR BOARDWALK City of Seward- CDBG Grant Request FY 2010 Cost Category CDBG Request Cash Match In -Kind TOTAL Labor $0.00 $0.00 $27,284.70 $27,284.70 Fringe Benefits $2,180.35 $0.00 $8,204.51 $10,384.86 Materials $122,791.70 $10,000.00 $0.00 $132,791.70 Freight $0.00 $0.00 $0.00 $0.00 Equipment Rental $2,309.70 $0.00 $0.00 $2,309.70 Equipment Purchase $0.00 $0.00 $0.00 $0.00 Contractual $12,310.00 $10,000.00 $9,853.62 $32,163.62 Insurance $2,268.30 $0.00 $20,718.43 $22,986.73 Other $0.00 $0.00 $17,650.00 $17,650.00 Administration $7,353.62 $0.00 $0.00 $7,353.62 TOTAL $149,213.67 $20,000.00 $83,711.26 $252,924.93 Agenda Statement Meeting Date: December 14, 2009 To: Mayor Dunham, City Council Members From: Jean Lewis, City Cl rl Agenda Item: Motion for Reconsideration BACKGROUND & JUSTIFICATION: On November 24, 2009, Council Member Marianna Keil came in and filed a written motion to reconsider Resolution 2009-108 on the Parking Enterprise Fund. She voted on the prevailing side and her motion, being filed before 5:00 pm on November 24, 2009 was timely, therefore in order. Council Member Keil asked the City Clerk's Office to clarify exactly what was approved in regard to this Parking Enterprise Fund. After clarification, she wished to withdraw this motion. When this motion came before the body on November 23, 2009, it was passed as amended. You can review the minutes for that meeting within this packet for clarification on what the amendment was. Since Council Member Keil's request for withdrawal of this motion was after the timeframe allowed by Robert's Rules (in this case after 5pm on November 24, 2009) the motion for reconsideration remains on the agenda as a pending motion with the same rules applying. (EXCERPT FROM ROBERTS) 37. RECONSIDER [page 306] c) The making of this motion has a higher rank than its consideration; that is, the motion can be made and seconded at times when it is not in order for it to come before the assembly for debate or vote. In such a case it can be taken up later, even after it would be too late to move it in the first place. If the motion to Reconsider is introduced at a time when it cannot be taken up, the chair does not state the question on it as pending, but asks the secretary to record the motion as made and seconded. This temporarily suspends any action growing out of the vote it is proposed to reconsider. While a motion to reconsider the vote on a main motion has this status, a member can bring the motion before the assembly at any time when its consideration is in order. When he does this, he is said to call up the motion to Reconsider. Except by unanimous consent, a motion to Reconsider that has not been finally disposed of cannot be withdrawn after it is too late to renew it; that is, it can be withdrawn only within the same time limits as for making the motion in the first place. EXAMPLE: An example of why this cannot be withdrawn would be; possibly another council member wanted to reconsider, but seeing another did, does not file one. If the first member is allowed to withdraw it after 5pm, that has now taken the rights away from the second council member to file a motion for reconsider within the allowed timeframe. You can look at it as the "council's" motion now. This motion can now go away with unanimous consent. Council Member Keil can make the motion to withdraw the reconsideration motion, receive a second, and all can agree to drop it by unanimous consent. If one member disagrees, the usual rules apply for a motion to reconsider to be brought forward. That member would make a motion to reconsider, it must have a second, and then must pass by a 2/3 vote before the main motion as amended (Resolution 2009-108) is back on the floor for debate. CONSISTENCY CHECKLIST: Yes No 1. Comprehensive Plan 2. Strategic Plan _ 3. Other SCC 2.10.065 (E) & 4. Not applicable CCRofP Rule 28 & 34 FISCAL NOTE: If allowed to be withdrawn, the Parking Enterprise Fund budget as amended on November 23, 2009 is passed and in the 2010 and 2011 budget. If further amended, would affect and change the 2010 and 2011 budget. Approved by Finance Department: _ Attorney Review: NO RECOMMENDATION: City Council agrees by unanimous consent to withdraw the motion to reconsider on Resolution 2009-108, Parking Enterprise Fund therefore, what was passed on November 23, 2009 stands; or A motion to reconsider must be made, seconded and passed by 2/3 vote, before Resolution 2009- 108 can be back on the table for discussion. i 1 RECEIVE® NOV 2 4 2009 oFFIGE OF THE �— Motion to Reconsider Sponsored by: Oates 11/24/2009 CITY OF SEWARD, ALASKA RESOLUTION 2009-108 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ADOPTING THE PARKING ENTERPRISE FUND BIENNIAL BUDGET FOR CALENDAR YEARS 2010 AND 2011 WHEREAS, the Seward City Council met on September 14 and September 28, 2009 to authorize budget policies and provide budget guidance to the administration, and conducted extensive work sessions for the purpose of discussing enterprise fund capital infrastructure needs and rate reviews on September 15, 24, 28, and 29, 2009; and WHEREAS, on October 12, 2009, the city manager submitted to the City Council a proposed biennial budget for the City of Seward for Calendar Years 2010 and 2011; and WHEREAS, the biennial budget was introduced at the regularly scheduled Council meeting on October 12, 2009, and work sessions were conducted and televised on October 13, 14, 15, and 16, 2009; and WHEREAS, a public hearing was held on the proposed budget on November 9, with final adoption scheduled for November 23, 2009. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The Parking Enterprise Fund biennial budget for Calendar Years 2010 and 2011 which is attached hereto and made a part hereof by reference and which contains estimated revenues and expenses for the period January 1, 2010 - December 31, 2011, is HEREBY ADOPTED, and the necessary funds are hereby appropriated. Section 2. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 23" day of November, 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor CITY OF SEWARD, ALASKA RESOLUTION 2009-108 AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC City Clerk (City Seal) ^ A A Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-141 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ADOPTING TO PARTICPATE IN THE 2010 AMLJIA LOSS CONTROL INCENTIVE PROGRAM FOR THE CITY OF SEWARD WHEREAS, the City of Seward is a member of the Alaska Municipal League Joint Insurance Association (hereinafter "AMLJIA"); and WHEREAS, the AMLJIA provides comprehensive risk management assistance and provides workers' compensation, liability and property coverage for the City of Seward; and WHEREAS, the AMLJIA developed the Loss Control Incentive Program to help reduce member losses individually and pool wide; and WHEREAS, the AMLJIA will provide all written program material necessary and offer assistance to participants; and �— WHEREAS, pool members that participate in the Loss Control Incentive Program and complete the required activities, will have the opportunity to earn a discount on their contribution; and WHEREAS, it is the City of Seward's policy to provide a safe environment for its employees, citizens, and the visiting public; and WHEREAS, the Loss Control Incentive Program will enhance such an environment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that Section 1. The City of Seward's elects to participate in the AMLJIA Loss Control Program for the 2010 policy year. Section 2. This resolution shall take effect immediately. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 14th day of December, 2009. Council Agenda Statement Meeting Date: December 14, 2009 To: Phillip Oates, City Manager,_� From: Kirsten Vesel, Assistant to the City Manager Agenda Item: Participating in the 2010 AMLJIA Loss Control Incentive Program BACKGROUND & JUSTIFICATION: The City of Seward is a member of the Alaska Municipal League Joint Insurance Association (AMLJIA). AMLJIA provides comprehensive risk management assistance and provides workers' compensation, liability and property coverage for the City of Seward. AMLJIA developed the Loss Control Incentive Program to help reduce member losses individually and pool wide. AMLJIA will provide all written program material necessary and offer assistance to participants. Pool members that participate in the Loss Control Incentive Program and complete the required activities will have the opportunity to earn a discount of up to Five Percent (5%) on our contribution. It is the City of Seward's policy to provide a safe environment for its employees, citizens, and the visiting public. In order to qualify for this Loss Control Incentive Program the City must do the following: 1. Provide tracking logs to document all safety activities. 2. Pass a resolution annually electing to participate in this program. 3. Provide reports and inspections timely and on a semiannual basis. 4. Engage an active Safety Committee to include agendas, notes, specific topics and minutes. 5. Provide model safety plans and training. 6. Provide annual, required safety training. The City has been actively engaged to complete the above requirement to qualify for this Program in 2010. In 2009, the City invited a volunteer OSHA inspector to provide a thorough "self -inspection" as another critical component of this Program. The OSHA inspection and the approval of this resolution are two critical steps to complete before we can qualify for this Program. INTENT: To pass a resolution to participate in the 2010 AMLJIA Loss Control Incentive Program. 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. ATTORNEY REVIEW: Yes FISCAL NOTE: There is no financial cost for this program. Approved by Finance Department: RECOMMENDATION: Council approves Resolution 2009-and authorizing the City Manager to participate in the 2010 AMLJIA Loss Control Incentive Program. Sponsored by: Clerk CITY OF SEWARD, ALASKA RESOLUTION 2009-142 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING A CONTRACT THROUGH DECEMBER 31, 2010, WITH ALASKA NEWSPAPERS, INC. FOR DISPLAY ADVERTISING IN THE SEWARD PHOENIX LOG AT A REDUCED RATE OF $335.50 PER WEEK AND ESTABLISHES OTHER CITY ADVERTISING RATES AT $11.00 PER COLUMN INCH WHEREAS, the City Clerk's Office produces, on a weekly basis, display advertisements announcing City of Seward meetings which are required by law; and WHEREAS, these ads are usually produced in the Seward Phoenix Log under the section known as the "City Calendar"; and WHEREAS, the City's contract for advertising in The Seward Phoenix Log expires every December; and WHEREAS, the Seward Phoenix Log has provided advertising services in the past and has given the City a huge measure of flexibility in meeting deadlines in order to guarantee that advertising occurs during established code -required, and Alaska Open Meeting Law time frames; and WHEREAS, to keep the city's business, Alaska Newspapers, Inc. has agreed to reduce rates, not only for the city calendar, but for other department's advertising needs to $11.00 per column inch; and WHEREAS, this results in approximately a 32% decrease for department advertising, and a 20% decrease for the city calendar advertising, taking it back to 2007 prices; and WHEREAS, this agreement obligates the City to advertise a half page, 30 column inch ad for 52 weeks with Alaska Newspapers, Inc. at a reduced rate of $11.00 per column inch each week, plus a $5.50 weekly notarized Affidavit of Publication; and WHEREAS, this contract also establishes additional city advertising for other departments at the much reduced rate of $11.00 per column inch for the same year; and WHEREAS, it is required by charter and code and in the public interest to publish the bulk of the City's ads in a local newspaper, and The Seward Phoenix Log is currently the only regularly published newspaper within the City of Seward. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: 019 CITY OF SEWARD, ALASKA RESOLUTION 2009-142 Section 1. It is in the public interest to approve a contract for advertising with Alaska Newspapers Inc. without full utilization of city bid procedures. Section 2. The City Manager is authorized to sign an advertiser's agreement with Alaska Newspapers Inc. for a flat rate of $335.50 per week for the period January 1, 2010, through December 31, 2010, with funding taken from advertising account 101-1110-5120. 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 10 day of December, 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis City Clerk, CMC (City Seal) Agenda Statement Meeting Date: November 9, 2009 From: Jean Lewis, City Cle Agenda Item: Annual contract for advertising with Alaska Newspapers Inc. BACKGROUND & JUSTIFICATION: This topic is well under the $50,000 limit that the City Manager is authorized to sign. The Clerk's Office is bringing this in resolution form for clarification and in order to inform the public. Alaska Newspapers Inc, provided a new advertising agreement and contract for this coming year with a much reduced rate to keep the city's business. This obligates the City to advertise the half page city calendar ad from January 1, 2010 to December 31, 2010. This rate went from $13.50 pci to a reduced rate of $11.00 per column inch (pci), or $410.00 to $335.50 a week. The notarized affidavit or proof of publication which we keep as permanent records has increased from $5.00 to $5.50. The current 2010 and 2011 budgets reflect this rate. Other additional advertising for the City of Seward (any department or division) will now also be charged at $ 11.00 pci for the same one-year period instead of $16.50 as has been charged in past years. These reduced rates result in not only a 20% reduction in advertising costs for the city calendar, but also approximately a 32% reduction in advertising costs for all departments. These reduced rates are a result of negotiations between Alaska Daily News and Alaska Newspaper Inc. that started July 2009. (Please note; these rates were negotiated be ore the council asked for a discussion topic of media advertising he added onto the council meeting agenda, so were not a result of that discussion.) Per our city code, the city must advertise in a paper of local circulation, or "newspaper of the city." Alaska Newspaper Inc. also offers optimal flexibility for submission with our deadlines and code requirements, plus provides the city with a mailed copy of the notarized proof of publication it needs. An email asking for circulation numbers shows the Phoenix Log circulation at 1900 for the Kenai Peninsula. These negotiations seem to show that Alaska Newspapers, Inc. desires to work with the City of Seward and their citizens to help sustain one another in this economy. For the above reasons and more, it is in the public's best interest to accept the contract with Alaska Newspapers, Inc for 2010. Please note; the terms of this contract have always given the Alaska Newspapers Inc. the right to amend this agreement upon 30 days notice in writing. The City at that time could accept the new rates or terminate the contract. The city has advertised in this newspaper at least since 1996 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: nnn ATTORNEY REVIEW: No FISCAL NOTE: The estimated annual rate for the city calendar is now $17,500 and is charged from Mayor/Council account 101 1110-5120. This amount is incorporated into the 2010 and 2011 biennial budget. Finance_ v�2� RECOMMENDATION: Council approve Resolution 2009-142, and authorize the City to sign a contract with Alaska Newspapers Inc. for the period January 1, 2010 through December 31, 2010 at a rate of $11.00 per column inch (pci) plus $5.50 affidavit charge, for the city calendar ad, and a rate of $11.00 pci for all other city advertising. f111 A Line 1 Advertiser/Agency: Contact: Billing Address: City: 0353:19 p.m. 11-17-2009 Ad Rep: Date: Entered: 316 -Ow LNE 11 /17/2009 11 /17/2009 Publication Ad Type Freq. % Rate Per C.I. Spot Color FullFTotalDisc. ColorThe Seward Phoenix Lo Dis la 25 11.00 0.00 0.00 The Seward Phoenix Lo Dis la 25 11.00 0.00 0.00 i .,� Nr rw. r r lu Nuunar rar 1 raer ves a it: 14 n ru relecr any auverusemeni suornmeo. Cancellation of Ads: Dates and times for cancellation of ads are the same as the deadline for ad placement, Cancellations past deadline will result in a 25% charge of the total cost of the ad. Errors: Alaska Newspapers, Inc. is responsible for the first insertion only in the event of an error. Adjustments in cost will be based on how much the error materially affected the value of the ad. Full refunds for minor errors of spelling or grammar are unlikely. Liability will not exceed the cost of space occupied by the error. No adjustments are available for ads received past deadline. Discounts: All discounts are based upon prompt and timely payment of invoices. Accounts over 60 days in arrears shall have all advertising billed at open rate until such time as accounts are again current. Contracts: Alaska Newspapers, Inc., reserves the right to amend the term, conditions, rates, etc., specified in the contract upon 30 days' written notice. Continuances of advertising after the new rates or changes go into elect wdl constitute acceptance of those rates or changes and all other terms of the contract. Initials Agencies: A Standard agency discount of 10% is honored for recognized agencies providing and delivering camera-ready materials and payment within 30 days from the date of invoice. Initials Non -Profit: A 10% discount is offered to all non-profit agencies recognized by federal, state or local governments. Proof of non-profit status is required, Initials Political Advertising: All political advertising must be pre -paid. Annual contract rates may not be applied. Initials Late Fees: A $20.00 Late Fee may be assessed for ad copy or space reservations received after deadline. Initials NOTE: BE SURE TO SIGN & RETURN AD AGREEMENT ASAP TO ENSURE THE BESTAD PLACEMENT POSMON Customer Signature Date: Manager Approval Publisher Approval Date: Date: W, Line 1 Special Instructions: 516 e 'Nty of - a c ..,:v �� .,�, •psi ivi uac Name one Vear nerin�l ,. Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-143 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING THE REVISED CITY EMPLOYEE DRUG AND ALCOHOL POLICIES. WHEREAS, the City of Seward Personnel Regulations may be revised or modified from time to time based on changing conditions; and WHEREAS, the City Council approves personnel policies and procedures developed by the city manager; and WHEREAS, the Administration has determined that the attached revised drug and alcohol policies are in the best interest of the City of Seward and it's personnel. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that Section 1. The City of Seward's revised drug and alcohol policies attached to this resolution are hereby approved. Section 2. This resolution shall take effect 30 days upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 14th day of December, 2009. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis, CMC, City Clerk (City Seal) nn A Council Agenda Statement Meeting Date: December 14, 2009 From: Phillip Oates, City Manage Agenda Item: Revised City Employee Drug Alcohol Policies BACKGROUND & JUSTIFICATION: The current City of Seward Commercial Driver's License (CDL) policy was modified in 1997. Based on changing conditions, a thorough review of the City of Seward's drug and alcohol policy was conducted. A new CDL policy has been drafted, as well as an "All Employee" drug and alcohol policy. The City of Seward has two drug and alcohol policies for the following reasons; the City is mandated under the 49 Code of Federal Regulations (CPR) to have drug testing for all employees whose employment require a Commercial Driver's License (CDL). This regulation requires random drug and alcohol testing of all CDL drivers. The City of Seward also requires an "All Employee" drug and alcohol policy to enforce the commitment to a drug free work environment. The most notable change to the CDL policy is the adoption of the State of Alaska DOT employee's prohibited conduct and disciplinary consequences for controlled substances and alcohol. The City of Seward is taking a strong stance on prohibiting inappropriate conduct. By adopting the state's consequences, we will send a strong message to employees, and the community, that the City does not tolerate the illegal use or possession of alcohol or drugs. The "All Employee" policy includes drug testing of all new or returning employees prior to reporting for work. A negative drug test will also be a condition of employment for safety - sensitive and public safety positions. Random drug testing for all employees is not legally enforceable. The City of Seward is a municipality and does not have the same rights as a public employer in regards to random testing. The City would be violating an employee's right to privacy if random testing was required of all City employees. One last noticeable change to the policies is that guidelines have been established for post accident testing. The City does not want to discourage reporting of accidents. Therefore the following guideline have been established when drug and alcohol testing will be required after an accident. • Loss of human life or injury to self or others beyond first aid • Issuance of a moving traffic citation involving injury beyond first aid • Issuance of a moving traffic citation involving property or vehicle damage in �-- excess of$1,000 ATTORNEY REVIEW: Yes Both of the drug and alcohol policies have been reviewed by the City of Seward's Attorney. The policies are written to the extent enforceable by law. It is not standard policy to seek council approval for personnel policies through a resolution. However, because of the cost associated with this policy, a council resolution was drafted. CONSISTENCY CHECKLIST: 1. Comprehensive Plan 2. Strategic Plan 3. Other 4. Not applicable Yes No FISCAL NOTE: Departments included funding for pre -employment drug tests in their 2010/2011 budget preparation. The test cost is approximately $100 each and the city anticipates conducting 40 tests annually. Council approves Resolution 2009-, approving the revised City employee drug and alcohol policy effective December 14, 2009. nnr- City of Seward All Employee �y DRUG AND ALCOHOL POLICY AND PROCEDURES MANUAL llftNon-DOT Policy 01 TABLE OF CONTENTS Page SECTION I - INTRODUCTION AND GENERAL INFORMATION A. Drug and Alcohol Prohibition Policy B. Effective Date of Policy C. Applicability D. Circumstances Under Which Testing May Be Conducted SECTION II - CONSEQUENCES OF VIOLATING POLICY A. General B. Violations and Discipline C. Requirements For Return -To -Duty SECTION III - SAMPLE COLLECTION AND TESTING PROCEDURES A. Collection of Samples B. Testing Procedures C. Review of Drug Testing Results SECTION IV - EMPLOYEE ASSISTANCE PROGRAM (EAP) A. Scope of Program B. Supervisory Training SECTION V - CONFIDENTIALITY OF RESULTS A. General SECTION VI - DEFINITIONS 2 nno DRUG AND ALCOHOL POLICY SECTION I. INTRODUCTION AND GENERAL INFORMATION A. Drug and Alcohol Prohibition Policy Policy. The City of Seward (City) has a long-standing commitment to maintain the highest standards possible for the health and safety of its employees, customers, clients, and the public at large. The use of or impairment by drugs and/or alcohol during worktime is contrary to these high standards and will not be tolerated. 2. Purpose. The purpose of this Drug and Alcohol Policy ("Policy") is to maintain the highest safety, health, and work performance standards possible, and to reduce work - related accidents, injuries, and damage which may be caused by drug or alcohol use or impairment. This policy is also intended to ensure the maintenance of productivity, the quality of products and services, and the security of property. 3. Prohibited Conduct. The following conduct is prohibited, and may result in discipline, up to and including dismissal: a. The unauthorized use, possession, manufacture,..distribution or sale of an illegal drug, controlled substance or drug paraphernalia on or in City -owned property (including City -supplied vehicles) or while on City business, or during working hours. b. Storing any illegal drug, drug paraphernalia, or any controlled substance whose use is unauthorized, in or on City -owned or supplied property (including vehicles). C. Reporting to work, working, or acting or appearing on behalf of the City while under the influence of illegal drugs or a controlled substance whose use is unauthorized. d. Failing to notify the employee's supervisor before beginning work that the employee is taking medications or drugs which may interfere with the safe and effective performance of duties. e. Refusing to immediately submit to a drug or alcohol test when requested by the City, in accordance with this policy. Failing to adhere to the requirements of any drug or alcohol treatment or rehabilitation program in which the employee is participating, either: (1) as a condition of continued employment, or (2) pursuant to a written agreement between the City and employee. g. 45Violating any criminal drug law or statute on or off duty. h. Violating any alcohol law or statue while working. i, Failing to notify the City of any arrest or conviction under any criminal drug or alcohol law or statute by the next work day following the arrest or conviction. j. Testing positive for drugs or alcohol in violation of this policy. k. Tampering with, adulterating, altering, substituting or otherwise obstructing any drug or alcohol testing process required under this policy. 3 Reporting to work or remaining on duty requiring the performance of a safety sensitive function while having an alcohol concentration of greater than .04 Note see section 1/1 B. 6), or if the employee is otherwise impaired by or under the influence of alcohol. M. Consuming or using alcohol while on duty, or while performing a safety sensitive function. n. For employees reporting to work a regularly scheduled shift, within eight hours of consuming or using alcohol. On -call employees who are requested to report to work before or after a regularly scheduled shift to performA safety sensitive function and have consumed alcohol within the previous eight hours must acknowledge the use of alcohol and may not report for duty. B. Effective Date of Policy This policy will become effective on January 14, 201,0. 2. Each department head shall post the Policy in a prominent location readily accessible to all covered employees. 3. A copy of this Policy will be distributed to each employee, who will be required to sign a statement acknowledging receipt of said Policy and his/her ,agreement to comply with same. C. Applicability 1. Individuals Subject to Drug and Alcohol Policy: Any prospective employee or employee of the City. 2. Substances Tested For and Positive Results. The City shall test for alcohol and the following drugs: Screening levels: THC (Marijuana) - 50 ng/ml Cocaine Metab. - 300 ng/ml Opiates - 2006 ng/ml PCP (Phencyclidine) - 25 nglml Amphetamines - 1000 ng/ml Methamphetamines - 1000 ng/ml Testing6v evidential Breath Testing Device Alcohol - .02-.039 not allowed to work that day. Confirmation levels (GC/MS)": THC (Marijuana) - 15+ ng/ml Cocaine Metab. - 150+ ng/ml Opiates - 2000+ ng/ml PCP (Phencyclidine) - 25+ ng/ml 4 rlon Amphetamines - 500+ ng/ml Methamphetamines - 500+ ng/ml Tested by Evidential Breath Testing Device Alcohol - .04 or greater positive. * SAMHSA specified threshold Test results at or above the confirmation level will he considered a positive test. D. Circumstances Under Which Testing May Be Conducted The City will test employees for drugs and/or alcohol under the following conditions: 1. Condition of Employment Testing (Drugs Only) A negative drug test will be a condition of employment. A positive test result is grounds for denying employment and a negative result is required prior to reporting for work. 2. Condition of Fmnlnvmant TaQtinn of Qnfofu_Qo ;+i„_ A negative drug test will be a condition of employment°for safety -sensitive and public safety positions. a. A non -safety sensitive employee who transfers, is promoted, demoted, rehired, or is reinstated, to a safety -sensitive position shall be required to complete a condition of employment drug test. .,,,. b. Police and fire department employees who transfer, are promoted, demoted, rehired, or reinstated to another position are�required to complete a condition of employment drug test. c. Failure to take and successfully pass the urinalysis drug test shall disqualify the employee of employment. 3. Post -Accident Testing a. Persons Subject to Post -Accident Testing. Employees involved in an accident or who have contributed to an accident in the 31 workplace or during work time, as described below, will be required to undergo drug and/or alcohol impairment testing. Such a test will be conducted as soon as practicable after the accident. Any injury should be treated first. The following accidents or incidents will require testing: Loss of human life or injury to self or others beyond first aid * Issuance of a moving traffic citation involving injury beyond first aid Issuance of a moving traffic citation involving property or vehicle damage in excess of $1,000 b. Obligations of Employee Subject to Post -Accident Testing. Report the accident to the police, department head and personnel officer immediately following an accident. 5 4 2. An employee who is subject to post -accident testing shall not consume alcohol for 8 hours after the accident, or until s/he has taken an alcohol test, whichever occurs first. 3. An employee who is subject to post -accident testing must remain readily available for such testing and may not take any action to interfere with the testing or the results of testing. Employees who do not comply with the post -accident testing requirements, or who fail or refuse to provide a sample for testing, will be considered to have refused to submit to testing and will be subject to appropriate disciplinary action, including termination. Reasonable Suspicion Testing Any employee whom the City reasonably suspects may be affected by the use of drugs or alcohol which may adversely affect job performance, safety or the work environment may be required to submit to a drug and/or alcohol test. Reasonable suspicion testing is done to identify drug and alcohol affected employees who may pose a danger to themselves or others in their job performance. Trained supervisors will make the decision whether there is reasonable suspicion to believe an employee is impaired by or under the influence of a drug or alcohol while on duty in violation of this policy. a. When Reasonable Suspicion Exists The decision to test must be based on a reasonable and articulable suspicion or belief that the employee is under the influence of an unauthorized drug or alcohol. Reasonable suspicion is a belief based on contemporaneous articulable observations concerning the employee's,appearance, behavior, speech or body odors, or other reliable evidence or information, that the employee is under the influence of or impaired by drugs or alcohol. For example, any of the following, either alone or in combination, may constitute reasonable suspicion: 1. Slurred speech; 2. IrregVar or unusual speech patterns; 3. Impaired judgment; 4. Alcohol odor on breath; 5. `Uncoordinated walking or movement; 6. Unusual or irregular behavior such as inattentiveness, listlessness, hyperactivity, hostility or aggressiveness; 7. Possession of drugs or alcohol; 8. Observation of drug or alcohol use prior to reporting to work or during working hours. Reasonable suspicion determinations will be made by supervisory personnel who have received training concerning the signs and symptoms of drug and alcohol use. The observing supervisor shall document the events and record the behavioral signs and symptoms that support the reasonable suspicion. If possible, a second supervisor should also observe the employee to verify that there is a -� reasonable basis to believe that a drug or alcohol violation has occurred. b. Events After Determination Is Made 6 When a determination is made that reasonable suspicion exists that an employee is under the influence of drugs or alcohol in violation of this policy, the employee shall be immediately relieved of his/her duties, pending further action. The observing supervisor shall immediately notify the department head or other appropriate supervisor if reasonable suspicion is found to exist. Upon review, the department head or other appropriate supervisor may direct or authorize that the employee in question immediately submit to a drug and/or alcohol test. C. Reports of Possible Violation by Supervisory Personnel If a non -supervisory employee has reason to believe that a supervisor subject to this policy is under the influence of drugs or alcohol at work in violation of this policy, then s/he shall report such potential violation to the Personnel Officer who will there after take appropriate action. 5. Return -to -Duty Testing An employee who refuses to take or fails a drug test and whose employment is not terminated may not return -to -duty until s/he is evaluated by the Substance Abuse Professional (SAP), passes a drug test, and the Drug Program Manager has determined that the employee may return to work. An employee who refuses to take or fails an alcohol test and whose employment is not terminated may not return to work until the employee is evaluated by a Substance Abuse �` Professional and has completed the recommended treatment. 6. Follow -Up Testin An employee who is referred for assistance related to drug or alcohol misuse may be subject to unannounced follow-up testing, for a period not to exceed 60 months, as directed by the SAP:,;The number and frequency of follow-up testing will be determined by the SAP and the City, but will not be less than six tests in the first 12 months following the employee's return to duty. Follow-up testing will be conducted immediately prior to, during or immediately preceding worktime for that employee. SECTION II. CONSEQUENCES OF VIOLATING POLICY A. General Compliance with this policy is a condition of employment. Refusal to take a required drug or alcohol test, a positive drug or alcohol test, or engaging in an activity or behavior which otherwise violates this Policy shall, at a minimum, result in removal from performing assigned functions. Additional disciplinary action may follow, including termination. 8. Violations and Discipline The City may take adverse employment action, up to and including dismissal, based on: a positive drug or alcohol test result, 2. a criminal conviction for a drug offense, on or off duty; 3. a prospective employee or employee's refusal to provide a drug or alcohol testing 7 sample; 4. An employee's failure to notify the employee's supervisor, before beginning work, that the employee was taking medications or drugs which might interfere with the safe or effective performance of duties; 5. Verification of valid current prescription or legal use of such drug is not provided upon request by the next scheduled work day; 6. Misuse of the prescription or recommended drug; or 7. Otherwise violating the terms and requirements of this policy. Potential adverse employment action may include one or more of the following: 1. A requirement that the employee enroll in a City -provided or approved rehabilitation, treatment or counseling program. This program mainclude additional drug and alcohol testing. Participation in such a program is a "condition of employment. Costs of participating in such a program will be borne by theemployee; 2. Suspension, with or without pay; 3. Termination of employment; 4. In the case of drug testing, refusal to hire the prospective employee; and/or 5. Other or additional adverse employment action, at the election and discretion of the City.' C. Requirements For Return -To -Dui An employee, who is not terminated for violating this policy may be given the opportunity to return to work provided s/he first: 1. Receives a recommended return to work evaluation by a SAP and the Medical Review Officer; 2. Passes a Return to Work drug"land/or alcohol test; 3. Continues to receive negative drug or alcohol test results in follow-up tests after returning to duty; and 4. Participates in and successfully completes any applicable City approved evaluation/rehabilitation program. SECTION III. SAMPLE. COLLECTION AND SAMHSA TESTING PROCEDURES A. Collection of Samples As long as employees, current and prospective, are adequately informed of the consequences of violating the policy, employers may elect lesser or more severe forms of discipline, at their option. Consistency in the application of discipline is very important, however. In addition, an employer's obligation of reasonable accommodation under the Americans With Disabilities Act and the disability discrimination provisions of the Alaska Human Rights Act may under some circumstances require that the employer allow an employee suffering from alcoholism to seek treatment or rehabilitation, rather than terminate, for a first offense. 8 - . 117A -- 1. Testing under this policy is a urinalysis (for drugs) and an evidential breath testing device (for alcohol) administered under approved conditions and procedures conducted for the sole purpose of detecting drugs or alcohol. Other on -site methods to detect the presence of alcohol may also be used, including blood/alcohol and saliva tests. 2. The test will be collected by the Providence Seward Medical Center or a certified medical laboratory and paid for by the City. The medical laboratory is responsible for the proper testing and to ensure the proper chain of custody for the test sample collected. 3. All drug test samples will be collected by the split sample collection method. However, if a split sample is not collected, the single sample will be collected and sent to the laboratory for testing. 4. The person collecting the drug sample will document the sample, including labeling the sample to preclude to the extent reasonable the possibility of misidentification of the person tested in relation to the test result provided:=,; 5. The person collecting the sample shall, providek, the person to be tested with an opportunity to provide medical information" that may be relevant to the test, including identifying current or recently used prescription and nonprescription drugs. 6. Sample collection, storage, and transportation to the testing place shall be performed in a manner reasonably designed to preclude the possibility of sample contamination, adulteration or misidentification. ¢. 7. An employee designated for testing must provide reliable individual identification to the person collecting the sample. 8. With the exception of pre -employment drug tests;- drug and alcohol tests will normally be scheduled during, or immediately before or after, the employee's regular work period or worktime. With the exception of pre -employment drug tests, testing under this policy is considered work time and will be compensated at the employee's normal rate of pay. 9. Sample collection, will be performed in a manner which ensures the individual employee's privacy to the maximum extent consistent with ensuring that the sample is not contaminated, adulterated or misidentified. 10. The City will pay the entire actual costs for drug and alcohol testing required of employees and prospective employees. The City shall also pay reasonable transportation costs to an employee if the required test is conducted at a location other than the normal work site. B. Testing Procedures Unless testing is conducted on -site, the City shall use a drug -testing laboratory approved or certified by the Substance Abuse and Mental Health Services Administration (SAMHHA). 2. If non -instrumented drug tests are used then the Collector must perform the on site tests in the presence of the donor. In on -site testing, an employer may only use products approved by the Food and Drug Administration for employee testing and shall use the products in accordance with the manufacturer's instructions. All presumptive positive tests results must be sent to the SAMSHA Laboratory for confirmation testing before anv employment action can be taken 9 3. The laboratory shall permit inspections by the City Personnel Officer. 4. The City may at times use a rapid test kit. If the rapid test is positive, the sample will be sent to the designated laboratory for confirmation. 5. Positive drug tests will be confirmed by a gas chromatography mass spectrometry. The City will not rely on a positive drug test unless the confirming drug test results have been reviewed by a licensed physician or doctor of osteopathy. 6. Alcohol testing will be performed by a breath alcohol technician (BAT). If the result of an alcohol screening test is an alcohol concentration of greater than .04, a confirmation test will be performed. The confirmation test will generally be done "within 15, but not more than 30, minutes of the screening test. The results of these tests will be reported directly to the City. C. Review of Drug Test Results Medical Review Officer. The City shall contract the services of a Medical Review Officer (MRO). The MRO shall be a licensed physician or doctor of osteopathy. The MRO shall review all confirmed positive drug test results and interview individuals tested positive to verify the laboratory report. The MRO, in conjunction with the Substance Abuse Professional, may also evaluate and recommend to the City whether and when an employee who either refuses to test or tests positive may return to work. The MRO may schedule follow-up unannounced drug testing for a period of up to 60 months. 2. Reporting and Review of Results. a. The MRO shall review confirmed positive test results. This review shall be performed by the MRO prior to the transmission of results to the City's Personnel Officer. b. The MRO shall contact the employee within 48 hours and offer an opportunity to discuss the confirmed test result. C. The MRO will inform ;he employee that s/he has 72 hours to request a re -test of the split or single sample. A re -test is an analysis of the second split sample bottle or an aliquot of the original sample. The re -test can be sent to a laboratory approved or certified by the Substance Abuse and Mental Health Services Administration. The employee will be responsible for the costs of the re -test and will be reimbursed by the City only if the sample comes back negative. 3. Legal Drug Use. If the MRO determines there is a legitimate medical explanation for the positive test result, the MRO shall report the test as negative. Test results that have been caused by prescription medication will be reported as negative. 4. Written Test Results. An employee may obtain a copy of the written test results only upon written request 1-W made within six months of the date of the test. The City will provide the written test results to the employee pursuant to that request within five working days of its receipt. 10 5. Explanation of Positive Test by Employee. An employee who would like an opportunity to explain a positive test result in a confidential setting must make such a request in writing within 10 working days of being notified of the test result. An employee who submits such a timely written request will be given the opportunity, within 72 hours after its receipt or before taking adverse employment action, to explain the positive test in a confidential setting. SECTION IV. EMPLOYEE ASSISTANCE PROGRAM (EAP) A. Scope of Program The Employee Assistance Program will provide education and training on drug and alcohol use to all employees. The education shall include: 1. Informational material distributed to employees as v�ell as displayed on bulletin boards, employee break rooms, locker rooms, etc.; 11 2. A community service hot line telephone number for employee assistance displayed on bulletin boards and distributed to employees; and, 3. Distribution of the City policy regarding the use of prohibited drugs and alcohol to all new employees. The policy shall be displayed in prominent places throughout the City (i.e., employee bulletin board, break room, locker rooms). B. Supervisor Training Supervisory personnel will receive training regarding the DRUG AND ALCOHOL POLICY. The training shall include at least 60 'minutes of training on the use of controlled substances, and at least 60 minutes of training on alcohol misuse. This training shall be for all supervisors who may determine whether an employee will be drug and alcohol tested for reasonable suspicion SECTION V. CONFIDENTIALITY OF RESULTS A. General 1. All records relating to drug and alcohol testing will be maintained in a confidential medical file in a secure location with controlled access, separate from personnel files. 2. Any communication received by the City relevant to drug or alcohol test results and received through the City's testing program is confidential and privileged, and will not be disclosed by the City except: a. To the tested employee, prospective employee or another person designated in writing by the employee or prospective employee; b. An individual designated by an employer to receive and evaluate test results or hear the explanation from the employee or prospective employee; C. As ordered by a court or governmental agency; or d. In any proceeding initiated by or on behalf of the individual and arising from a positive test. 11 DRUG PERSONNEL AND SERVICES 1. SERVICE AGENT (SA) Worksafe, Inc. 300 West 36« Avenue, Suite A Anchorage, Alaska 99503 2. MEDICAL REVIEW OFFICER (MRO) Dr. Stephen Herbets, MD 16560 Harbor Blvd. , Suite A Fountain Valley, CA 92708 3. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA) LABORATORY Pathology Associates Medical Laboratory 11604 E. Indiana Road Spokane, WA 99206 4. EMPLOYEE ASSISTANCE PROGRAM —see Appendix A y I, 12 SECTION VI. DEFINITIONS. Alcohol means ethanol, isopropanol, or methanol. Alcohol concentration means the alcohol in a volume of breath expressed in terms of grams of alcohol - per 210 liters of breath -as indicated by an evidential breath test. Alcohol Use means the consumption of any beverage or mixture, including any medication or mouthwash containing alcohol. Breath Alcohol Technician (BAT) means an individual who operates an EBT and instructs and assists individuals in the alcohol testing process. Collection Site Person Is an individual authorized by the City of Seward to collect samples in accordance with this policy and trained in procedures for such'collections. The City of Seward has chosen to follow the highest industry standards for work place collection, testing, and reporting of test results; therefore, The City of Seward procedures will attempt to follow, as a guide only, the federal drug testing procedures. Drug(s) means a substance considered unlawful under AS 11.71 or under federal law, or the metabolite of the substance. Drug Testing means testing for evidence of the use of a drug Evidential Breath Testing Device (EBT) is a device approved by thCONational Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath, and is placed on NHTSA's "Conforming Products List" (CPL) of evidential breath measurement devices. Employee Assistance Program (EAP) means a confidential counseling/referral service for employees and their dependents. EAP is designed to provide assistance to employees and their families to deal with personal problems which may affect their productivity, health, or continued employment. All counseling, assessment, and referral services will be -provided by qualified, experienced clinicians with special training in short-term counseling and in assessing and treating substance abuse problems. (See SAP.) Failing A Drug Test shall mean the test results show positive evidence of the presence of a drug or drug metabolite in an employee's system' in amounts that exceed cutoff levels established by this policy. Medical Review Officer (MRO) is the licensed physician or doctor of osteopathy who is responsible for reviewing positive laboratory results generated by The City of Seward testing program. Prospective Employee means a person who has made application to an employer, whether oral or written, to become an employee. Sample means urine or breath from the person being tested. Screening Test or Initial Test means an analytic procedure to determine whether an employee may have a prohibited concentration of drugs or alcohol in a specimen. Rapid Test means a test designed to provide an instant screened test result. Refusal to submit means failure to cooperate and provide a drug or alcohol sample, after receiving notice of the test in accordance with The City of Seward Drug and Alcohol Policy. A refusal will be 13 treated the same as a positive test result. A refusal to test for alcohol occurs when a covered employee fails to provide an adequate breath for testing without a valid medical explanation after receiving notice of the requirement to be tested in accordance with the provisions of The City of Seward alcohol misuse provention plan or engages in conduct that clearly obstructs the testing process. Substance Abuse Professional (SAP) means a licensed physician (medical doctor or doctor of osteopathy), or a licensed or certified psychologist, social worker, employee assistance professional, or addiction counselor ("Certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or by the International Certification Reciprocity Consortium/Alcohol & Other Drug Abuse") with knowledge of and clinical experience in the diagnosis and treatment of alcohol and controlled substance related disorders. ..r 94 IAA Appendix A Employee Assistance Program We all have problems from time to time, and usually we can cope with them on our own. Sometimes, however, we need outside help. The City of Seward provides all regular, full-time employees with a Health Care Plan administered by RBMS, LLC a Meritain Health Company. The plan offers partial coverage for Alcoholism and Drug Addiction -Inpatient and Outpatient treatment. Please contact the number listed on the back of your insurance card for more information. Below is a list of rehabilitation resources that may help you. Drug Alcohol Counseling Rehabilitation Resources Alaska Council on Prevention of Alcohol & Drug Abuse 800-478-7738 Akeela House, Inc. 907-561-5266 Alaska Addiction Rehabilitation Services 800-376-4535 907-376-4534 Alaska Aviation Toxicology 800-478-3783 907-451-3784 Alaska Human Services 907-561-4535 f Alaska Youth & Parent Foundation 907-274-6541 Alcoholics Anonymous 907-272-7860 Alcoholism 907-243-1181 907-276-2898 Betty Ford Center 800-854-9211 Center for Drug Problems 907-276-6430 Charter North Star Behavioral Health System 907-258-7575 Charter North Counseling Center 907-561-7576 Church of Scientology of Anchorage 907-336-6086 Circle S Recovery Ranch (Washington) 800-533-3046 15 Genesis House, Inc. Lakeside Milam Recovery Centers (Washington) Pacific Rim Counseling, Inc. Providence Breakthrough Residence XII for Women Salvation Army Seaview Community Services Starting Point Sundown M Ranch (Washington) Valley General Hospital Alcohol/Drug Recovery Center WorkSafe, Inc. 907-243-5130 800-231-4303 907-349-0077 907-562-7325 800-776-5944 907-243-1181 907-224-5257 907-562-6116 509-457-0990 G 360-794-1405 907-563-8378 1 Fi ')A n REV DATE; JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY City of Seward SUBSTANCE ABUSE POLICY FOR COMMERCIAL MOTOR VEHICLE DRIVERS 1.0 STATEMENT OF PURPOSE AND SCOPE OF POLICY 1.1 City of Seward ("City") has vital interests in ensuring a safe, healthy and efficient working environment for our employees and in preventing accidents and injuries resulting from the misuse of alcohol or the use of controlled substances by drivers of commercial motor vehicles. The unlawful oK improper presence or use of controlled substances or alcohol in the workplace presents a danger to everyone. For these reasons, and as required by the drug and alcohol testing regulations of the Federal Motor Carrier Safety Administration ("FMCSA"), the City has established this substance abuse policy. Drug and alcohol testing is"an integral part of our program. Compliance with this policy is required as a condition of employment and also as a condition of continued employment. 1.2 Any driver who operates a commercial motor vehicle ("CMV") (as defined in Appendix A — page 22 of this policy) for or on behalf of the City who is required to have a commercial driver's license ("CDL") in order to operate that vehicle is required to comply with the FMCSA's drug and alcohol rules and the pro -visions of this policy ("CMV driver position"). This policy also applies to supervisors of CMV drivers who actually drive or may be required to drive a commercial motor vehicle. Additionally, all applicants who seek employment as a CMV driver are covered by this policy and by the FMCSA's drug and alcohol rules. 1.3 This policy explains the FMCSA's drug and alcohol regulations and the City's own policies with respect to drivers of commercial motor vehicles who use controlled substances or misuse alcohol. Provisions of this policy which are imposed are specifically noted by underline. 1.4 This policy represents malnagement guidelines only and should not be interpreted as a contract of employment. Noncompliance with this policy will result in disciplinary action, up to and including immediate termination. In the case of an applicant, noncompliance will result in an applicant bein ineligible for employment with the City. 1.5 Consistent with its fair employment policy. the City maintains a polici of non- discrimination and will endeavor to make reasonable accommodations to assist recovering addicts or alcoholics and those having a medical history reflecting treatment for substance abuse conditions. We encourage employees to seek REV DATE: JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY assistance before drug and alcohol use renders them unable to perform their essential job functions or jeopardizes the health and safety of themselves or others 1.6 This policy was designed to protect an individual's privacy, to ensure the integrity and reliability of testing procedures and to protect the confidentiality of individual test results and medical histories. Any questions regarding the meaning or application of this policy should be directed to the Designated. Employer Representative: Personnel Officer 224-4074 1.7 The Designated Employer Representative has distributed a copy of this policy to each driver covered by this policy sand will ensure that it is distributed to each driver subsequently hired or transferred to a CNW,driver position. M 2 n A A REV DATE: JuNF 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY 2.0 PROHIBITED CONDUCT 2.1 Prohibited Conduct Concerning Driver's Use of Drugs and Alcohol: a. Drivers are prohibited from reporting for duty, or remaining on duty when using any drugs, except when the use is pursuant to the instructions of a licensed medical practitioner (as defined in Appendix A — page 24 of this policy) who has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle_ b. Drivers are prohibited from reporting for duty or remaining on duty with an alcohol concentration of 0.04 or greater. Driver found to have an alcohol concentration of 0.02`or greater, but less than 0.04, are prohibited from performing any safety -sensitive functions for at least 24 hours from the test. C. Drivers are prohibited from using alcohol in any form (including medications containing alcohol) while performing safety -sensitive functions (refer to Appendix A — page 25 of this policy for the definition of performing safety -sensitive functions). d. Drivers are prohibited from performing safety -sensitive functions within eight (8) hours after using alcohol. On -call employees who are not at work, but could be called to drive or perform other safety -sensitive functions, are subject to this pre -duty alcohol prohibition. This means a driver who is on -call must decline a call to work if his or her acceptance would require the employee to drive or perform other safety -sensitive functions within eight (8) hours after consuming alcohol. An on -call driver who is required to decline work because of his/her violation of the ei>?ht-hour rule is subject to discipline up to and including termination e. Drivers are;;prohibited from using alcohol for eight (8) hours following an accident, or until the driver takes a post -accident alcohol test, whichever occurs first. f. Drivers may not refuse to submit to any drug or alcohol test required under the FMCSA's drug and alcohol rules and/or this policy. g. Drivers are prohibited from performing or continuing to perform a safety -sensitive function if they have tested positive for controlled substances or alcohol. h. Drivers may not refuse to submit to any inspection required under Section 10.0 of this policy, _._ 3 REV DATE: Ju aE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY i. Drivers are prohibited from engaging in the unlawful or unauthorized manufacture distribution, dispensation, sale purchase solicitation transfer possession use or transport of controlled substances or alcohol while on City paid time on City premises, in City vehicles, or while engaged in City activities This prohibition does not include the authorized distribution dispensation, sale, purchase, solicitation transfer, possession, use or transport of alcoholic beverages in connection with Cites sponsored functions or events. j. Drivers are prohibited from failing to stay in contact with the City or its medical review officer while awaiting the results of a drug test. 2.2 Consumption of Food or Food -Products Containing Hemp:. The consumption of food and foodz,products containing hemp (e.g., "Seedy Sweeties" and hemp oil) may cause a driver to test positive. A test result that is positive as a result of a driver's consumption of food or food - products containing hemp will be reported as a positive test and subject the driver to discipline, up to and including termination. (Refer to Section 6.3.) 2.3 Prohibition On Supervisor Or Manager Permitting A Driver To Work: Any supervisor or manager who has actual knowledge that a driver has engaged or is engaging in conduct prohibited above, shall not permit the driver to perform or continue to perform any safety -sensitive function. 2.4 Prohibition Against Working While Using Any Medication Which Affects Safety Or Performance: 2.41 Except as otherwise provided in this section, use of any medication (therapeutic drugs) while engaged in City activities is prohibited to the extent such use may affect the driver's ability to perform his/her job duties safely. 2.42 A driver using any medication that contains alcohol or a controlled substance has an obligation to inquire and determine whether the substance the driver is taking may affect the driver's ability to Al perform his/her job duties safely. 2.43 If the driver is or will be using any such medication, the driver is required to obtain from the driver's licensed medical practitioner a written statement which provides that the medication will not interfere with the driver's ability to safely and efficiently perform the driver's job duties or provides any work restrictions. 2.44 Any such information must be reported to the driver's immediate supervisor prior to commencing any safety -sensitive function_ on a 4 REV DATE: JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY without disclosing the identity of the substance Drivers usin such a medication must have the medication in its original container which identifies the medication dosa e and other ertinent information which maybe reviewed by the Citv's Medical Review Officer (MRO) 2.45 A driver may continue to work, if the City's MRO and the licensed medical practitioner have determined that the medication will not reasonable accommodation can be made. A driver may not be permitted to perform his or her safety -sensitive functions unless such a determination or reasonable accommodation has been made. 3.0 REQUIRED TESTS AND PAST TEST RESULTS INFORMATION As required by the FMCSA's regulations, the City will conduct drug and alcohol tests under the conditions and circumstances described below. 3.1 Pre -Employment Drug Testing and Past Test Results Information: 3.11 All applicants who have received a conditional -offer of employment in a CMV driver position, and all existing employees whose transfer V.. to a CMV position has been conditionally approved, are required to submit to a pre -employment drug test and must receive a negative test result as a condition of employment. Such tests will be conducted prior to the time the applicant is hired or transferred. 3.12 In addition to a pre -employment drug test, FMCSA's regulations require the City to obtain information concerning an applicant's past drug and alcohol tests from all of the motor carriers for which the applicant worked during the two years preceding the date of the application. As "a condition of employment with the City, applicants for CMV driver positions are required to complete and sign the City's "Applicant's Authorization to Obtain Past Drug and Alcohol Test Results" form, which authorizes the applicant's former motor carrier employers during the preceding two years (from the date of application) to release to the City information concerning the applicant's: (i) alcohol test results of 0.04 or greater; (ii) verified positive drug test results; (iii) refusals to be drug or alcohol tested (including verified adulterated or substituted drug test results); and (iv) other violations of DOT drug and alcohol testing regulations. This information will be obtained in a confidential manner. The City will maintain a written confidential record with respect to each former employer contacted. The information from a previous employer may contain any alcohol and drug information the 5 REv DATE: JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY previous employer obtained from other previous employers after January 1, 1995.3 3.13 If the City learns from the driver's previous employers that the driver violated a DOT drug and alcohol regulation, the driver either will be ineligible for employment with the City, or if hired, the driver's employment will be terminated, unless the City obtains evidence that the driver has successfully completed DOT's return - to -duty requirements. 3.2 Post -Accident Drug And Alcohol Testing: 3.21 A driver who is performing safety -sensitive functions (as defined in Appendix A — page 25 of this policy) involving a commercial motor vehicle is required to submit to a post -accident drug and/or alcohol test as soon as practicable following the accident4, under the following circumstances described in subparagraphs a. and b. below': a. A driver who is involved in an accident which results in a death to another human being must always submit to a drug and alcohol test. o b. A driver who is involved in a non -fatal accident must submit to a post -accident drug and alcohol test if the driver was given a citation for a moving traffic violation arising from the accident and the accident results in either: (i) bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of accident; or 3 FMCSA's regulations also permit the information to be provided directly to the City by the driver. In such cases, the City will verify that the information is true and accurate. FMCSA's regulations further require that, if feasible, the required information must be obtained and reviewed by the City prior to the first time a driver performs safety -sensitive functions for the City. If not feasible, the information must be obtained and reviewed as soon as possible, but no later than 30 calendar days after the first time a driver performs safety -sensitive functions for the City. The City will make a good faith effort to obtain the above information. If after 30 days, the information is not available, the City will use or continue to use the driver. If the driver stops performing safety -sensitive functions before the expiration of the 30-day period, or before the City has obtained the above information, the City must still make a good faith effort to obtain the information. 4 FMCSA's regulations require post -accident drug tests to be conducted within 32 hours of the accident and post -accident alcohol tests to be conducted within 8 hours of the accident. If an alcohol test is not conducted within 2 hours of the accident, FMCSA's regulations require the City to document the reasons for the failure to test. Fill out Part I of the City's "Failure to Conduct Alcohol Test" form in this circumstance, and Part II of the same report if an alcohol test is not conducted within 8 hours of the accident. Similar documentation is required if drug testing is not conducted within the required 32 hours. 5 FMCSA's regulations do not require a driver to submit to a post -accident test if the occurrence involved only boarding or alighting from a stationary vehicle or the loading or unloading of cargo. 6 7A a REv DATE: JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY (ii) one or more of the vehicles involved in the accident incurs disabling damage (as defined in Appendix A — page 23 of the policy), requiring the vehicle(s) to be transported away from the scene by a tow truck or other vehicle, (iii) issuance of a moving traffic citation involving property or vehicle damage in excess of $1,000. 3.22 In the event of an accident, the driver must notify the Designated Employer Representative as soon as possible to obtain information on how to proceed with the required testing. Drivers are obligated to follow the Designated Employer Representative's instructions and to submit to post -accident drug and alcohol tests, as directed. 3.23 When required, both alcohol and drug testing must be performed as soon as possible after the accident, but no later than 8 and 32 hours respectively. If alcohol testing is not pompleted within 2 hours, the City will document thc4casons for this failure. If alcohol testing is not completed within 8 hours, the City wilLcease efforts to conduct the test and document the reasons for this failure. 3.24 A driver who is subject to post -accident testing must remain readily available for such testing or else will be deemed to have refused to submit to such testing. However, this "readily available" requirement does not: require the delay of necessary medical attention for injured people, or prohibit a driver from leaving the scene of the accident for the period necessary to obtain assistance in responding to the accident or to obtain necessary emergency medical care. 3.25 A driver who is required to submit to a post -accident test will be placed on paid. administrative leave after completion of the drug and/or alcohol tests. The City also reserves the right to evaluate the conduct of the driver which may have caused or contributed to the accident, to determine if this conduct in and of itself should warrant discipline u� to and including termination 3.3 Random Drug And Alcohol Testing: 3.31 Each year the City will administer random alcohol and drug tests. Random drug tests may be conducted at any time. Random alcohol tests will only be conducted while a driver is performing safety - sensitive functions, just before the driver performs safety -sensitive functions, or just after the driver has ceased performing safety - sensitive functions. 3.32 The minimum number of random drug tests the City will conduct is equal to 50 percent of the average number of driver positions. The minimum number of random alcohol tests the City will conduct is 7 REvDATE: RNE2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY equal to 10 percent of the average number of driver positions. These rates may be increased or decreased as required by the FMCSA's drug and alcohol regulations. 3.33 The City shall select drivers for testing using a random number table or a computer -based random number generator that is matched with the CDL's driver's license number, or other comparable identification numbers which will ensure that each driver has an equal chance of being tested each time selections are made. 3.34 All random tests will be unannounced and the dates for administering the tests will be spread reasonably throughout the calendar year. The dates of randomtesting, locations and names of those to be tested are kept in the strictest confidence by the Designated Employer Representative' 3.35 Each driver who is notified of selection for random drugnor alcohol testing must proceed to the test site immediately. If the driver is performing a safety -sensitive function (other than driving a commercial motor vehicle) at the time of notification, the driver must cease performing the safety -sensitive function and proceed to the test site as soon as possible. Failure to appear for any test within a reasonable time of being to do so will be considered as a refusal to test. 3.4 Reasonable Suspicion Drug and/or Alcohol Testing: 3.41 A driver must submit to a reasonable suspicion drug and/or alcohol test whenever a manager or supervisor has reasonable suspicion to believe that the driver has violated the drug or alcohol prohibitions contained in thisTolicy. Reasonable suspicion drug tests may be conducted at any time. Reasonable suspicion alcohol tests may be conducted only while the driver performing safety -sensitive functions, just before the driver performs safety -sensitive functions, or just after the driver has ceased performing safety -sensitive functions. ' 3.42 Reasonable suspicion determinations will be based on specific, contemporaneous, articulable observations concerning the driver, including but not limited to, the driver's appearance, behavior, Z FMCSA's regulations require reasonable suspicion alcohol tests to be conducted within 8 hours of the determination to test. If an alcohol test is not conducted within 2 hours of the determination to test, FMCSA's regulations require the City to document the reasons for the failure to test. Fill out Part I of the -Awl City's "Failure to Conduct Alcohol Test" form in this circumstance, and Part II of the same report if an alcohol test is not conducted within 8 hours of the determination. 8 I)cn REvDATE: JUNE2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY speech, or body odors. For drug testing, the observations may also include indications of the chronic and withdrawal effects of drugs. 3.43 Documentation of the observations leading to a reasonable suspicion test will be prepared and signed by the supervisor or manager who made the observations. All supervisors or managers who will make a reasonable suspicion determination have received training on alcohol misuse and controlled substances use in accordance with the FMCSA's regulations. The supervisor or manager who makes a reasonable suspicion determination will not conduct the drug or alcohol test. 3.44 A driver who is directed to take a reasonable suspicion drug and/or alcohol testing must submit to the test 'as directed: The City shall transport or ensure transport of the driver both to and from the collection site. 3.45 In the event an alcohol test has not been conducted as required by FMCSA but the City has reason to believe a driver is under the influence of or impaired by alcohol (as shown by the driver's behavior, speech or performance), the driver is prohibited from reporting for duty or remaining on duty requiring the performance of any safety -sensitive functions until an alcohol test can be administered and the result is below 0.62 or 24 hours have elapsed since the reasonable suspicion determination, whichever first occurs. 3.46 A driver who is requested to submit to a reasonable suspicion drug and/or alcohol test will be placed on paid administrative leave If the test results are negative the driver will be reinstated. The Citv also reserves the right to evaluate the conduct of the driver which determine if the conduct in and of itself should warrant discipline up to: Dd including termination. 3.5 Return -To -Duty Drug Or Alcohol Testing: 3.51 FMCSA's regulations prohibit drivers who have engaged in conduct prohibited by the FMCSA's drug and alcohol regulations from performing safety -sensitive functions until they have fulfilled the DDT's requirements for return to duty, including: a. Initial evaluation by a Substance Abuse Professional to determine the level of assistance needed to address the employee's drug and/or alcohol problems; b. Initiation of the education and/or treatment plan prescribed by the SAP; and 9 REv DATE: A NE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRTvER POLICY C. Follow-up evaluation by the SAP to determine whether the employee has successfully complied with the prescribed education and/or treatment plan. 3.52 Drivers who have fulfilled the above requirements for return to duty must also submit to a return -to -duty drug and/or alcohol test and receive negative results prior to returning to safety -sensitive duties. 3.53 Drivers who engage in conduct prohibited by FMCSA's regulations or this policy will not be permitted to return to duty until they comply with the City's terms and conditions. 3.6 Follow -Up Drug and/or Alcohol Testing: 3.61 Drivers who have fulfilled the DOT's requirements for return to duty are required to submit to unannounced follow-up drug and/or alcohol tests after returning to duty, as directed by the SAP's` follow-up evaluation report. 3.62 A minimum of six follow-up drug and/or alcohol tests must be conducted during the first twelve months following the driver's return to duty. Testing may continue for up to- a total of 60 months to be determined by the SAP and or the City Administration. 3.63 Continued "Employment" and..complly with its terms and conditions, directed by a substance abuse professional and receiving negative test results. 4.0 SELF -IDENTIFICATION OF SUBSTANCE ABUSE PROBLEM 4.1 A driver who voluntarily self -identifies himself or herself as having a drug or alcohol problem and requests assistance for such a -problem will be referred to the City's EAP for referral to a substance abuse professional for an evaluation and, if recommended, an appropriate counseling, treatment or rehabilitation program. The cost of the counseling, treatment or rehabilitation is the driver's responsibility. (See the City's policies regarding leaves of absences and benefit entitlement for further detailsl. 4.2 This request must be made before the driver is directed or otherwise required to submit to a drue or alcohol test required by DOT or this policy. Under these circumstances, the City will take no adverse action against the employee. 10 REv DATE: JLNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY 4.3 If the substance abuse professional determines that the driver is able to perform non -safety -sensitive functions while partici ating in such pro rgra�Ir the City will attempt to reassign the driver to another available position which does not require the performance of safety sensitive functions and for which the driver is also qualified. The driver will receive the rate of pay for the position to which he or she has been reassigned. 4.4 Before the driver will be permitted to return to his her driving duties or perform other safety -sensitive functions _the driver will be required to cnhmit to 4-,- —Al-- ..1-1 -1 i _ _. , required to submit to follow-up drug and/or alcohol tests Return to iq and follow-up tests performed under this section of the policy will be conducted in accordance with applicable state or local law, if any. Where v vVLL4l liJ V VG11111rL' such testing the �'Itv will follow the Federal Procedures for Transportation WorkplaceDrug and Alcohol Testing Programs 49 CFR Part 40 as amended. 5.0 DRUG AND ALCOHOL TESTING PROCEDURES As required by the FMCSA's rules, the City's drug and alcohol testing procedures comply with the Federal Procedures For Transportation Workplace Drug and Alcohol Testing Programs, 49 CFR Part 40, as amended. (A copy may be obtained from the Designated Employer Representative). These procedures,ensure the integrity, confidentiality and reliability of the testing processes, safeguard the validity of the test results and ensure that these results are attributed to the correct driver. Further, these procedures minimize the impact upon the privacy and dignity of persons undergoing such tests to every extent feasible. 5.1 Drug Testing Procedures: 5.11 Drugs being tested for: The drugs specifically being tested for include: marijuana, opiates, amphetamines, cocaine, and phencyclidine (PCP) and their metabolites. 5.12 Custody and control form and laboratory: For purposes of conducting drug tests, the City has established a procedure for the collection and analysis of urine specimens, using the Federal Drug Testing Custody and Control Form ("CCF"), that will verify the identity of each specimen and test result. All drug tests conducted pursuant to this policy shall be performed by laboratories which are certified by the Department of Health and Human Services ("DHHS"). 1 REV DATE: TUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIvER POLICY 5.13 Confirmation and review of drug test results: a. All positive drug test results will be confirmed by gas chromatography and mass spectrometry (GC/MS). All confirmed positive drug test results will be reviewed by a medical review officer ("MRO") to determine whether there is any legitimate medical explanation for the confirmed positive, adulterated, substituted or invalid test result. This review may include a medical interview, review of the applicant's or driver's medical history, or review of any other relevant biomedical factors and all medical records made available by the tested individuals. b. Individuals testing positive WM'be given the opportunity to discuss with the MRO any legitimate explanation for the positive test result. If, after speaking with the driver;"'the MRO determines that there is a legitimate medical explanation for the confirmed positive test result, the MRO will report the test result as "negative" to the Designated Employer Representative or his/her alternate. If the MRO determines that there is no legitimate explanation for the confirmed positive test result, the result will be verified as a positive test result by the MRO. ..r C. Under the circumstances set forth in 49 CFR Part 40, the MRO is permitted to verify a test result as positive without having first communicated directly with the driver. In the event that serious illness, injury or other unavoidable circumstances prevented the driver from being contacted by the MRO or a designed City representative, however, the MRO may reopen the verification process to permit the driver to provide information concerning a legitimate explanation for the positive test. 5.14 Right to have split specimen analyzed: All applicants and drivers have the right to request, within 72 hours of being notified by the MRO of a verified positive test result, that the split specimen be analyzed in a different DHHS certified laboratory, selected by the employee, for the presence of the drug(s) for which a positive result was obtained or for reconfirmation of an adulterated, substituted or invalid test result. a. If the split specimen reconfinns the presence of the drug(s) or drug metabolite(s) or the adulteration, substitution or invalid finding, the MRO will notify the Designated '.2 ')FA •r. REv DATE: JLNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLF. DRIVER POLICY Employer Representative or his/her alternate and the tested individual of the test results. b. If the split specimen is unavailable, inadequate for testing or untestable, the MRO shall cancel the test and report the cancellation and the reasons for it to the Designated Employer Representative or his/her alternate and the tested individual. When this occurs, another specimen must be collected immediately under direct observation. C. If the split specimen fails to reconfirm the presence of the drug(s) found in the primary specimen or the adulteration, substitution or invalid finding,, the MRO shall cancel the test and report the cancellation'apd"the reasons for it to the Designated Employer Representative or his/her alternate, the tested individual, and the DOT's Office of Drug and Alcohol Program Compliance. 5.15 Inability to provide adequate amount of urine specimen: Applicants and drivers must provide at least 4� milliliters of urine for a drug test. If the tested individual isjunable to provide such a quantity of urine, then the tested individual will be instructed to drink up to 40 oz of fluids and after a period of time, again attempt to provide a complete specimen. If an applicant refuses to provide a new urine specimen, this will constitute a refusal to submit to a test and the applicant will be ineligible for employment with the City. If a driver refuses to provide a new urine specimen, this will constitute a refusal to submit to testing and the driver's employment will be terminated. If a driver has not provided a sufficient specimen within 3 hours after the first unsuccessful attempt to provide the specimen, the City will direct the driver to obtain as soon as possible, a medical evaluation from a physician selected by the City. If the physician determines that there is no legitimate medical explanation for the driver's failure to provide an adequate amount of urine, this will constitute a refusal to submit to a test and the driver's employment will be terminated. 5.16 Dilute urine specimens: The City will require prompt re -collection in the case of negative dilute results for pre -employment and reasonable suspicion tests, as permitted under 49 CFR 40.197. '3 REV DATE: JUNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY 5.17 Altered or substituted urine specimens: Procedures for collecting urine specimens allow individual privacy unless there is a reason to believe that a particular individual has altered or attempted to alter or substitute the specimen as defined in the Federal Procedures for Transportation Workplace Drug Testing Programs, 49 CFR Part 40. In such cases, a specimen may be obtained under the direct observation of a same gender collection site person in accordance with such procedures. 5.2 Alcohol Testing Procedures: 5.21 How test will be performed: Alcohol screening tests will be performed by a screening test technician ("STT") using a non - evidential screening device, or by a breath alcohol technician ("BAT") using an evidential breath testing device ("EBT"). The City has a quality assurance plan for each non -evidential alcohol screening device and EBT it uses. In addition, the City ensures that the STTs are proficient in the operation of non -evidential screening devices and that the BATS are proficient in the operation of EBTs. Further, the City uses non -evidential alcohol screening devices that are on the National Highway Traffic Safety Administration's ("NHTSA") Conforming Products List ("CPU) for non -evidential screening devices and EBTs which are on NHTSA's CPL for evidential breath measurement devices. 5.22 Confirmation of alcohol test results: In accordance with 49 CFR 40.251 if the result of the screening test is an alcohol concentration of 0.02 or greater, a confirmation test will be performed using an EBT. A waiting period of at least 15 minutes from the completion of the screening test must be observed. The confirmation test then will be conducted within 30 minutes from the end of the waiting period. The confirmation test result is the final result upon which any discipline or other action taken under the City's policy shall be based. 5.23 Inability to provide adequate amount of sample for alcohol testing: a. If a driver fails to provide or claims that he or she is unable to provide a sufficient amount of breath sample to permit a valid breath test for whatever reason, including a medical condition, the City will follow the guidelines found in 49 CFR 40.265. The DER will be notified immediately in the event an individual is not able to produce a sufficient breath sample. 14 REv DATE: JLNE 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY b. If the driver is unable to provide sufficient saliva to complete a test on a saliva screening device, the STT shall conduct a new test, using a new device. If the driver refuses to complete the new test, this will constitute a refusal to submit to a test and the DER will be notified immediately. If the new test is completed, but there is an insufficient amount of saliva to activate the device, the driver shall immediately take an alcohol test using an EBT. If the driver refuses to submit to the test using an EBT, the DER will be notified immediately. 6.0 CONSEQUENCES FOR POLICY VIOLATIONS The consequences discussed below apply to applicants and drivers who are found to have violated this policy. Regardless of the discipline imposed, however, FMCSA's regulations require drivers who engage in any prohibited conduct under this policy to be advised of available resources for evaluating and resolving problems associated with drug use and alcohol misuse, including the names, addresses, and telephone numbers of substance abuse professionals and counseling and treatment programs. This information will be provided through the City's Human Resource Department. 6.1 Automatic Removal From Safety -Sensitive Functions: FMCSA's regulations require drivers who violate this policy in any way to be immediately removed from their safety -sensitive functions. Such drivers are prohibited from performing, or being permitted to perform, a safety - sensitive function. 6.2 Positive Test Results: 6.21 Applicants: REV DATE: JUNE 2009 CITY OF S EW ARD COMMERCIAL MOTOR VEIIICLEDRIVERPOLICY TABLES OF PROHIBITED CONDUCT AND DISCIPLINARY CONSEQUENCES Controlled Substances (Drugs other than Alcohol) PROHIBITED CONDUCT DISCIPLINARY CONSEQUENCE A. Positive test result for controlled A. Split specimen sample may be tested at an substance, including positive result for employee's option and expense. Request post -accident test. must be made within 72 hours of receipt of a positive test result by a medical review officer. Any employee testing positive will be suspended for a minimum of 901days. See policy and procedure for return to work. Any employee who tests positive a second time will be dismissed. B. Refusing to participate in required B. Refusineto participate is treated as a testing, including required post -accident positive test result. Any employee who tests. refuses to participate in required testing will be subjecs to the disciplinary consequences in "A" above. C. Attempting to adulterate, tamper with, or C. Any employee who attempts to adulterate, modify the sample or test result. tamper with, or modify the sample or test result will be immediately dismissed for cause. D. Use of controlled substance on duty. D. Any employee using a controlled This means reporting to work, working, substance on duty will be immediately or acting or appearing on behalf of the dismissed for cause. City while under the influence of drugs,, E. Criminal conviction for drug offense. E. Any employee who is convicted of a drug offense will be immediately dismissed upon conviction. F. Failing to notify the supervisor or F. Failing to notify will result in disciplinary foreman of any arrest or conviction action up to and including dismissal. under any criminal federal, state, or local When failing to report could cause serious drug law or statute by the next workday consequences to the employer, it may following the arrest or conviction. result in immediate dismissal 16 7r,R REV DATE: SEFTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VBHICLEDRIVERPOLICY TABLES OF PROHIBITED CONDUCT AND DISCIPLINARY CONSEQUENCES Alcohol PROHIBITED CONDUCT A. Blood alcohol concentration (BAC) of0.04 or greater immediately prior to, following, or during performance of CDL duties.I B. BAC of at least 0.02 but less than 0.04 immediately prior to, following, or during performance of CDL duties. C. Use of alcohol within eight hours prior to reporting for duty or performing state work of any kind. D. Use of alcohol on duty. This means reporting to work, working, or acting or appearing on behalf of the City while under the influence of alcohol. E. Refusing to participate in required testing; including required post -accident tests. F. Attempting to adulterate, tamper with, or modify the sample or test result (including false claims of inability to test). G. Following an accident, consumption of alcohol within 8 hours or until the employee has been tested for alcohol (whichever comes first). H. Failing to notify the supervisor or foreman of any arrest or conviction under any criminal federal, state, or local alcohol law or statute by the next workday following the arrest or conviction. 1 The city considers CDL holders to be performing CDL duties; or about to perform CDL duties, any time they are on duty, regardless of whether they use thew CDI.'s an a daily basis or sporadically. DISCIPLINARY CONSEQUENCE A. Any employee whose BAC is 0.04 or greater immediately prior to, following, or during the performance of CDL duties will be immediately dismissed for cause. B. First Violation— Suspended for a minimum of 90'days. See policy and procedures for conditions on return to work. Second Violation — Dismissal for cause- C. First Violation — Suspended for a minimum of 90 days: See policy and procedures for conditions on return to work. Second Violation — Dismissal for cause. D. Any employee "using alcohol on duty will be immediately dismissed for cause. I" E. Refusing to participate is treated as a positive test result. Any employee who refuses to participate in required testing will be subject to the disciplinary consequences in "B" above. F. Any employee who attempts to adulterate, tamper with, or modify the sample or test result will be immediately dismissed for cause. G. .Any employee who consumes alcohol prior to being tested for alcohol within eight hours of an accident will be immediately dismissed for cause. H. Failing to notify will result in disciplinary action up to and including dismissal. NVhen failing to report could cause serious consequences to the employer, it may result in immediate dismissal. REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY 6.22 Drivers: a. Temporary suspension: Any driver who is required to submit to a reasonable suspicion or post -accident drug or alcohol test pursuant to this polite will be placed on paid administrative leave. If the verified test results or split specimen test results are negative the driver will be reinstated. b. Verified positive drug test and alcohol test results of 0.04 or greater: Any driver who receives an alcohol test result of 0.04 or greater will be ten ninated. C. Positive alcohol test results of 0.02 or greaterbutless than 0.04 or a positive drug test: Any driver who receives a verified positive drug test or a confirmed alcohol test result of 0.02 or greater, but less than 0.04, for the first time, will 'be suspended without pay for 90`days. However, the driver's employment will not be tenninated unless: (1) The City has first given the driver an "Agreement For Evaluation And Conditions For Continued EmploynA66" ("Agreement for Evaluation"), which provides the employee with the opportunity to participate in (at the driver's own expense or pursuant to coverage under an employee benefit plan), a drug or alcohol evaluation, counseling, treatment or rehabilitation program, whichever is determined to be more appropriate by the substance abuse professional who evaluates the driver, and (2) The driver: (i) refuses or fails to be evaluated by a substance abuse professional, (ii) refuses to participate in the counseling, treatment or rehabilitation program recommended by the substance abuse professional, (iii) fails to successfully complete the program, as evidenced by the driver's withdrawal from the program before its completion or (iv) violates the drug/alcohol prohibitions of this policy during the two-year period after return to duty. I n Oan REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY (3) A driver's errinloyment will be terminated if he/she. (i) refuses or fails to be evaluated by a substance abuse professional L fails to fully cooperate and complete the recolnmended counseling, treatment or rehabilitation program, (iii) refuses to sign the "Agreement For Evaluation" or fails to comply with its terms or (iv) violates the drug/alcohol prohibitions of this policy during the two-year period after return to duty. The employment of a driver who receives a confirmed positive alcohol test result of 0.02 or greater or a positive drug test for a second time will be terminated. d. Fitness -for -duty evaluation in the event of driver's legal and authorized use of a controlled substance: Whenever a driver submits to a reasonable suspicion test and receives_ a positive result for the legal and authorized use of a controlled substance the driver will be'required to submit to a fitness -for -duty evaluation which may include a review of the driver's medical records andga medical examination by a licensed medical rofessional. Under such circumstances drivers will be required to provide the City with the necessary authorization to obtain the driver's medical records and agreement to submit to the medical examination. The_purpose of the evaluation is to determine whether the driver can satisfactorily perform his/her essential job functions or poses a direct threat to the health or safety'of the drivers or others Depending_on the results of the evaluation the City will consider whether the safety or health risk can be eliminated or substantially reduced by a reasonable accommodation if applicable 6.3 Other Policy Violations: Drivers who commit policy violations other than those addressed in Sections 6.2 and 6.3 above will be subject to discipline_ Lip to and including, immediate termination of employment Applicants who violate this policy will be ineligible for gm loymgnt with the City. 6.4 Potential Forfeiture of Workers' Compensation and/or Unemployment Compensation Benefits: A driver's violation of FMCSA's regulations and/or the requirements of this policy constitute gross and willful misconduct. In addition to the disci line and other consequences imposed by FMCSi and the City under this policy, such misconduct may also result in the denial of unemployment compensation REV DATE: SEPTEMBFR 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRNER POLICY under the applicable state law. In addition drivers who are injured as a result of a violation of FMCSA's regulations and/or the City's safety rules (including but not limited to the conduct prohibited under this policy) may also forfeit workers' compensation benefits under the applicable state law. 7.0 NOTIFICATION OF TEST RESULTS Applicants will be notified of the results of a pre -employment drug test, if the applicant requests his/her test results within 60 days of being notified of the disposition of the employment application. Drivers will be advised of drug test results.,which are verified positive, adulterated, or substituted, and the drug or drug(s) for which a positive result was verified. Drivers will be notified of the results of their alcohol tests immediately after the administration of the screening test and, if necessary, the confirmatory test. 8.0 TESTING EXPENSES AND COMPENSATION FOR TESTS The Citv willnav for drug and alcohol tests and related expenses as follows:,; 8.1 The City pay for all drug and alcohol tests required to be taken by drivers or applicants under this policy, including confirmation tests. Except where prohibited by state or local law, any test taken at a driver's request, including snlit specimen tests_ will he at the driver's exnense_ unless the specimen tests in all locations, but will be reimbursed by the City if the result is negative. 8.2 All time spent by drivers providing a urine; saliva, or breath specimen required under this policy, including travel time to and from the collection site, will be considered as on -duty time. The driver will receive his or her regular compensation, including overtime if applicable, for such time. 9.0 RECORDKEEPING, ACCESS TO RECORDS AND CONFIDENTIALITY OF TEST RESULTS 9.1 The City will maintain records of its alcohol misuse and drug use prevention programs as required by the FMCSA's regulations. These records will be maintained in a secure location with controlled access and will not be released to any person except as required by law or expressly authorized by the driver. 9.2 The laboratory may disclose drug test results only to the MRO. The MRO, Screening Test Technician (STT) and Breath Alcohol Technician (BAT) may disclose test results only to the individual tested, designated City representatives, a treatment program, or a court of law or administrative tribunal to the extent required by law. Beyond that, a driver's test results shall not be released to any person without the individual's written consent. - n ncn REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY 10.0 INSPECTIONS 10.1 Inspections of City Property: There is no reasonable expectation of privacy in or on Qy city property, the City may conduct unannounced random inspections for drugs and alcohol on City facilities and property such as, but not lnmted to, City vehicles desks file cabinets City issued employee lockers in which the City retains a copy of the key or the combination, etc. Drivers are ex ected to cooperate in the conduct of such inspections. Inspections of City facilities and property may be conducted at Any tune and need not be based on reasonable suspicion. 10.2 Inspections of Driver Property: Inspections of drivers and their personal property such as but not lunited to vehicles clothing packages purses brief cases lunch boxes. or -other containers brought on to City premises may be conducted when there is reasonable suspicion to believe that the driver may have or has violated the drugor alcohol prohibitions contained in this policy. 11.0 COMPLIANCE WITH POLICY AS CONDITION OF EMPLOYMENT All applicants and drivers are advised that full compliance with this substance abuse policy shall be a condition of employment and continued employment See Section 6.0 for the consequences for refusal to submit to tests and policy violations. 12.0 EMPLOYEE ASSISTANCE PROGRAM ("EAP") As part of the City's commitment to provide a safe: healthy and efficient working environment for our employees. the City 2ns 2ram("E loyee Mof ogAP" ). The EAP provides nnformation ffects nces ofalcohol and drug use on an individual's heaersonsigandsymptoms of an alcohol or drug roblem IEAP pral servicesto drivers and their families seekinhelwiultingmisuse and drug use. Participation in this program isvoluntary and confidential. The EAP can discuss available counseling treatment and rehabilitation programs fiscal responsibilities and can help the employee decide4�vhat program might be best for his or her situation. F_ or further information a list of employee alcohol and drug counseling and rehabilitation resources is provided in Appendix B Use of these resources is at the employee's expense. REv DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY Appendix A: Definitions from 49 CFR Part 382 (Regulatory language cited) Actual knowledge for the purpose of subpart B of this part, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer's direct observation of the employee, information provided by the driver's previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee's admission of alcohol or controlled substance use, except as provided in §382,121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under §382.307. Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol. Alcohol concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by -.an evidential breath test under this part. Alcohol use means the drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol. Commerce means: (1) Any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States; and (2) Trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (1) of this definition. Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle— ¢. (1) Has a gross combination weight rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or (2) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 or more pounds); or (3) Is designed to transport 16 or more passengers, including the driver; or (4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 5103(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F). REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY Confirmation (or confirmatory) drug test means a second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite. Confirmation (or confirmatory) validity test means a second test performed on a urine specimen to further support a validity test result. Confirmed drug test means a confirmation test result received by an MRO from a laboratory. Consortium/Third party administrator (C/TPA) means a service agent that provides or coordinates one or more drug and/or alcohol testing services to DOT -regulated employers. C/TPAs typically provide or coordinate the provision of a number of such services and perform administrative tasks concerning the operation of the employers' drug and alcohol testing programs. This term includes, but is nof limited to, groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members (e.g., havingka combined random testing pool). C/TPAs are not "employers" for purposes of this part. Controlled substances mean those substances identified in §40.85 of this title Designated employer representative (DER) is an individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety -sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the City. Service agents cannot serve as DERs. Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs. (1) Inclusions. Damage to motor Vehicles that could have been driven, but would have been further damaged if so driven. 4 (2) Exclusions. (i) Damage which can be remedied temporarily at the scene of the accident without special tools or parts. (i) Tire disablement without other damage even if no spare tire is available. (iii) Headlight or taillight damage. (iv) Damage to turn signals, horn, or windshield wipers which make them inoperative. DOT Agency means an agency (or "operating administration") of the United States Department of Transportation administering regulations requiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), in accordance with part 40 of this title. I 1 0ar REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY Driver means any person who operates a commercial motor vehicle. This includes, but is not limited to: Full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner -operator contractors. Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance with this part. The term, as used in this part, means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations of this part and any applicable DOT agency regulations. Service agents are not employers for the purposes of this part. Licensed medical practitioner means a person who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local; or foreign laws and regulations, to prescribe controlled substances and other drugs. Performing (a safety -sensitive function) means a driver is considered to be performing a safety -sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety -sensitive functions. Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug tests results (i.e., positives, negatives, and refusals) under this part. Refuse to submit (to an alcohol or controlled substances test) means that a driver: (1) Fail to appear for any test (except a pre -employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner -operator) to appear for a test when called by a C/TPA (see §40.61(a) of this title); (2) Fail to remain at the testing site until the testing process is complete. Provided, that an employee who leaves the testing site before the testing process commences (see §40.63(c) of this title) a pre -employment test is not deemed to have refused to test; (3) Fail to provide a urine specimen for any drug test required by this part or DOT agency regulations. Provided, that an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see §40.63(c) of this title) for a pre -employment test is not deemed to have refused to test; (4) In the case of a directly observed or monitored collection ni a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen (see §§40.67(1) and 40.69(g) of this title); REV DATE: SFPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRFVER POLICY �— (5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see §40.193(d)(2) of this title); (6) Fail or declines to take a second test the employer or collector has directed the driver to take; (7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under §40.193(d) of this title. In the case of a pre -employment drug test, the employee is deemed to have refused to test on this basis only if the pre -employment test is conducted following a contingent offer of employment; (8) Fail to cooperate with any part ofthe testing process (e.g-,,, refuse to empty pockets when so directed by the collector, behave in a confrontatioiial way that disrupts the collection process); or (9) Is reported by the MRO as having a verified adulterated or'substituted test result. Safety -sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety -sensitive functions shall include: (1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer; (2) All time inspecting equipment as required by §§3.92.7 and 392.8 of this subchapter or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time; (3) All time spent at the driving controls of a commercial motor vehicle in operation; (4) All time, other than driving time, ilnor upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of §393.76 of this subchapter); I (5) All time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded: and (6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle. Screening test (or initial test) means: (1) In drug testing, a test to eliminate "negative" urine specimens from further analysis or to identify a specimen that requires additional testing for the presence of controlled substances. REvDATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRNER POLICY (2) In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen. Stand -down means the practice of temporarily removing an employee from the performance of safety -sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test results. Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under this part plus the number of refusals of random alcohol tests required by this part, divided by the total number of random alcohol screening tests (including refusals) conducted under this part. REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY ..- Additional Terms from 49 CFR Part 40 (Regulatory Language Cited) In this part, the terms listed in this section have the following meanings: Adulterated specimen. A specimen that contains a substance that is not expected to be present in human urine, or contains a substance expected to be present but is at a concentration so high that it is not consistent with human urine. Affiliate. Persons are affiliates of one another if, directly or indirectly, one controls or has the power to control the other, or a third party controls or has the power to control both. Indicators of control include, but are not limited to: interlocking management or ownership; shared interest among family members; shared facilities or equipment; or common use of employees. Following the issuance of a public interest exclusion, an organization having the same or similar management, ownership, or principal employees as the service agent concerning whom a public interest exclusion is in effect is regarded as an affiliate. This definition is used in connection with the public interest exclusion procedures of Subpart R of this part. Air blank. In evidential breath testing ,devices (EBTs):using gas chromatography technology, a reading of the device's internal standard. In all other EBTs, a reading of ambient air containing no alcohol. Alcohol. The intoxicating agent in beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol. Alcohol concentration The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by a breath test under this part. Alcohol confirmation test. A subsequentJest using an EBT, following a screening test with a result of 0.02 or greater, that provides quantitative data about the alcohol concentration. Alcohol -screening device (ASD). A breath or saliva device, other than an EBT, that is approved by the National Highway Traffic Safety Administration (NHTSA) and placed on a conforming products list (CPL) forl�such devices. Alcohol screeningtest. An analytic procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen. Alcohol testing site. A place selected by the employer where employees present themselves for the purpose of proyiding breath or saliva for an alcohol test. Alcohol use. The drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol. Blind specimen or blind performance test specimen. A specimen submitted to a laboratory for quality control testing purposes, with a fictitious identifier, so that the laboratory cannot distinguish it from an employee specimen. Breath Alcohol Technician BAT. A person who instructs and assists employees in the alcohol testing process and operates an evidential breath testing device. Cancelled test. A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which this part otherwise requires to be cancelled. A cancelled test is neither a positive nor a negative test. Chain of custody. The procedure used to document the handling of the urine specimen from the time the employee gives the specimen to the collector until the specimen is destroyed. This procedure uses the Federal Drug Testing Custody and Control REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRrvFR POLICY Form (CCF). Collection container. A container into which the employee urinates to provide the specimen for a drug test. Collection site. A place selected by the employer where employees present themselves for the purpose of providing a urine specimen for a drug test. Collector. A person who instructs and assists employees at a collection site, who receives and makes an initial inspection of the specimen provided by those employees, and who initiates and completes the CCF. Confirmation (or confirmatory) drug test. A second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite. Confirmation (or confirmatory) validity test. A second test performed on a urine specimen to further support a validity test result. Confirmed drug test. A confirmation test result received by an MRO from a laboratory. Consortium/Third-party administrator, (C/TPA). A service agent that provides or coordinates the provision of a variety of drug and alcohol testing_services to employers. C/TPAs typically perform administrative tasks concerning the operation of the employers' drug and alcohol testing programs. This term includes, but is not limited to, groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members. C/TPAs are not "employers" for purposes of this part. Continuing education. Training for medical review offices (MROs) and substance abuse professionals (SAPS) who have completed qualification training and are performing MRO or SAP functions, designed to keep MROs and SAPS current on changes and developments in the DOT drug and alcohol testing program. Designated employer representative (DER). ,An employee authorized by the employer to take immediate action(s) to remove employees from safety -sensitive duties, or cause employees to be removed from these covered duties, and to make required decisions in the testing and evaluation processes. The DER also receives test results and other communications for the employer, consistent with the requirements of this part. Service agents cannot act as DERs. Dilute specimen. A specimen with creatinine and specific gravity values that are lower than expected for human urine. DOT, The Department, DOT agency. These terms encompass all DOT agencies, including, but not limited to, the United States Coast Guard (USCG), the Federal Aviation Administration (FAA), the Federal Railroad Administration (FRA), the Federal Motor Carrier Safety Administration (FMCSA), the Federal Transit Administration (FTA), the National Highway Traffic Safety Administration (NHTSA), the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the Office of the Secretary (OST). These terms include any designee of a DOT agency. Dru s. The drugs for which tests are required under this part and DOT agency regulations are marijuana, cocaine, amphetamines, phencyclidine (PCP), and opiates. Employee. Any person who is designated in a DOT agency regulation as subject to drug testing and/or alcohol testing. The term includes individuals currently performing safety -sensitive functions designated in DOT agency regulations and applicants for ?7n REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY ... employment subject to pre -employment testing. For purposes of drug testing under this part, the term employee has the same meaning as the term "donor" as found on CCF and related guidance materials produced by the Department of Health and Human Services. Em Dover. A person or entity employing one or more employees (including an individual who is self-employed) subject to DOT agency regulations requiring compliance with this part. The term includes an employer's officers, representatives, and management personnel. Service agents are not employers for the purposes of this part. Error Correction Trainin . Training provided to BATs, collectors, and screening test technicians (STTs) following an error that resulted in the cancellation of a drug or alcohol test. Error correction training must be provided in person or by a'means that provides real-time observation and interaction between the instructor and trainee. Evidential Breath Testing Device (EBT)A device approved by NHTSA for the evidential testing of breath at the .02 and .04 alcohol concentrations, placed on NHTSA's Conforming Products List (CPL) for "Evidential Breath Measurement Devices" and identified on the CPL as conforming with the model specifications available from NHTSA's Traffic Safety Program. HHS. The Department of Health and Human Services or any designee of the Secretary, Department of Health and Human Services. Initial drug test. The test used to differentiate a negative specimen from one that requires further testing for drugs or drug metabolites. Initial validity test. The first test used to determine if a specimen is adulterated, diluted, or substituted. Invalid drug test. The result of a drug test- for a urine specimen that contains an unidentified adulterant or an unidentified interfering substance, has abnormal physical characteristics, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing or obtaining a valid drug test result. Laboratory. Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minunum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT under this part. (The HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs are available on the internet at http://www.health.org/workpl.htm or from the Division of Workplace Programs, I Choke Cherry Road, Room 2-1035, Rockville, MD 20587) Medical Review Officer MRO J. A person who is a licensed physician and who is responsible for receiving and reviewing laboratory results generated by an employer's drug testing program and evaluating medical explanations for certain drug test results. Office of Drug and Alcohol Policy and Com liance O( DAPC). The office in the Office of the Secretary, DOT, that is responsible for coordinating drug and alcohol testing program matters within the Department and providing information concerning the implementation of this part. Primary specimen. In drug testing, the urine specimen bottle that is opened and tested by a first laboratory to determine whether the employee has a drug or drug metabolite in his or her system; and for the purpose of validity testing. The primary specimen is distinguished from the split specimen, defined in this section. Qualification Training. The training required in order for a collector, BAT, MRO, rl�4 REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY SAP, or STT to be qualified to perform their functions in the DOT drug and alcohol .., testing program. Qualification training may be provided by any appropriate means (e.g., classroom instruction, internet application, CD—ROM, video). Refresher Training. The training required periodically for qualified collectors, BATS, and STTs to review basic requirements and provide instruction concerning changes in technology (e.g., new testing methods that may be authorized) and amendments, interpretations, guidance, and issues concerning this part and DOT agency drug and alcohol testing regulations. Refresher training can be provided by any appropriate means (e.g., classroom instruction, internet application, CD—ROM, video). Screening Test Technician (STT). A person who instructs and assists employees in the alcohol testing process and operates an ASD. Secretary. The Secretary of Transportation or the -Secretary's designee. Service agent. Any person or entity, other than an employee of the employer, who provides services specified under this part to employers and/or employees in connection with DOT drug and alcohol testing requirements. This includes, but is not limited to, collectors, BATS and STTs, laboratories, MROs, substance abuse professionals, and C/TPAs. To act as service agents, persons and organizations must meet the qualifications set forth in applicable sections of this part. Service agents are not employers for purposes of this part. Shipping container. A container that is used for transporting and protecting urine specimen bottles and associated documents from the collection site to the laboratory. Specimen bottle. The bottle that, after being sealed and ,jabeled according to the procedures in this part, is used to hold the urine specimen dunifig transportation to the laboratory. Split specimen. In drug testing, a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result. Stand -down. The practice of temporarily removing an employee from the performance of safety -sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an adulterated test, or a substituted test, before the MRO has completed verification of the test result. Substance Abuse Professional (SAP). A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare. Substituted specimen. A specimen with creatinine and specific gravity values that are so diminished that they are not consistent with human urine. Verified test. A drug test result or validity testing result from an HHS-certified laboratory that has undergone review and final determination by the MRO. [65 FR 79526, Dec. 19, 2000, as amended at 66 FR 41950, Aug. 9, 2001; 71 FR 49384, August 23, 2006; 71 FR 55347, Sept. 22, 2006] 97') REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY �..- 382.113 Requirement for notice Notice of Testing: Before performing each alcohol or controlled substances test under Part 382, the City will notify a driver that the alcohol or controlled substances test is required by Part 382. The City will not falsely represent that a test is administered under this Part 382. § 382.301 Pre -employment testing Once -a -Year Drivers If the City uses, but does not employ a driver more than once a year to operate commercial motor vehicles the City must obtain the following information at least once every six months. c) (1) An employer who exercises the exception in paragraph (b) ofthis section shall contact the controlled substances testing program(s) in which the driver participates or participated and shall obtain and retain from the testing program(s) the following infonnation: (i) Name(s) and address(es) of the program(s). (ii) Verification that the driver participates or participated in the program(s). (iii) Verification that the program(s) conforms to part 40`of this title. (iv) Verification that the driver is qualified under the rules of this part, including that the driver has not refused to be tested for controlled substances. (v) The date the driver was last tested for controlled substances. (vi) The results of any tests taken within the previous six months and any other violations of subpart B of this part. The records prepared in compliance with this section will,be maintained in accordance with §382.401 of the regulations. If the City cannot verify that the driver is participating in a controlled substances testing program in accordance, the City will conduct a pre -employment controlled substances test:. § 382.303 (g)(1)(2) Post -Accident Tests Administered by Law Enforcement Officials A driver may be directed to submit, to a drug and/or alcohol test at the accident scene by a federal, state, or local law enforcement officer. Whenever a law enforcement officer conducts a drug or alcohol test on a driver involved in an accident, the driver must contact leis/her supervisor or other City official to report the test result. Whenever a driver 'is involved in a DOT accident and is not tested for controlled substances and/or alcohol by a law enforcement officer, the driver is required to immediately contact his,/her supervisor or other City official and remain available to be tested. The City will provide the driver with the necessary instructions in the event of an accident that requires a drug/alcohol test. REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY § 382.303 (h) Exception to Post -Accident Testing Requirements Per the regulations (references cited) this section does not apply to: (1) An occurrence involving only boarding or alighting from a stationary motor vehicle; or (2) An occurrence involving only the loading or unloading of cargo; or (3) An occurrence in the course of the operation of a passenger car or a multipurpose passenger vehicle (as defined in §571.3 of this title) by an employer unless the motor vehicle is transporting passengers for hire or hazardous materials of a type and quantity that require the motor vehicle to be marked or placarded in accordance with §177,823 of this title. § 382.601 (d) Certificate of receipt The City will ensure that each driver is required to sign a statement certifying that he or she has received a copy of the educational and policy materials described in this section. The City will maintain the original of the signed certificate and may provide a copy of the certificate to the driver. DRUG PERSONNEL AND SERVICES 11. SERVICE AGENT (SA) Worksafe, Inc. 300 West 361h Avenue, Suite A Anchorage, Alaska 99503 2. MEDICAL REVIEW OFFICER (MRO) Dr. Stephen Herbets, MD 16560 Harbor Blvd. , Suite A Fountain Valley, CA 92708 3. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA) LABORATORY Pathology Associates Medical Laboratory 11604 E. Indiana Road Spokane, WA 99206 4. EMPLOYEE ASSISTANCE PROGRAM — Appendix B 7 I 77d REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY Appendix B Employee Assistance Program We all have problems from time to time, and usually we can cope with them on our own. Sometimes, however, we need outside help. The City of Seward provides all regular, full-time employees with a Health Care Plan administered by RBMS, LLC a Meritain Health Company. The plan offers partial coverage for Alcoholism and Drug Addiction -Inpatient and Outpatient treatment. Please contact the number listed on the back of your insurance card for more information. Below is a list of rehabilitation resources that may help you. Drug Alcohol Counseling Rehabilitation Resources Alaska Council on Prevention of Alcohol & Drug Ab"use 800-478-7738 Akeela House, Inc. 907-561-5266 Alaska Addiction Rehabilitation Services 800-376-4535 907-376-4534 Alaska Aviation Toxicology 800-478-3783 907-451-3784 Alaska Human Services 907-561-4535 Alaska Youth` & Parent Foundation 907-274-6541 Alcoholics Anonymous 907-272-7860 Alcoholism 907-243-1181 y 907-276-2898 Betty Ford Center 800-854-9211 Center for Drug Problems 907-276-6430 Charter North Star Behavioral Health System 907-258-7575 Charter North Counseling Center 907-561-7576 Church of Scientology of Anchorage 907-336-6086 Circle S Recovery Ranch (Washington) 800-533-3046 REV DATE: SEPTEMBER 2009 CITY OF SEWARD COMMERCIAL MOTOR VEHICLE DRIVER POLICY Genesis House, Inc. Lakeside Milam Recovery Centers (Washington) Pacific Rim Counseling, Inc. Providence Breakthrough Residence XII for Women Salvation Army Seaview Community Services Starting Point Sundown M Ranch (Washington) Valley General Hospital Alcohol/Drug Recovery Center WorkSafe, Inc. -.W 907-243-51,i0 800-231-4303 907-349-0077 907-562-7325 800-776-5944 907-243-1181 907-224-5257 907-562-6116 509-457-0990 360-794-14 n 5 907-563-8:3, 6 97I; City of Seward, Alaska Member 28, 2009 CALL TO ORDER City Council Minutes r VLKLrLG J The September 28, 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY Police Chief Tom Clemons led the pledge of allegiance to the flag. )ULED ation on Impact eing the zero for he most nework Dutton Parks. Russ Maddox was surprised the city did not turn in any comments on the spraying of herbicide by the Alaska Railroad. He wondered if it was oversight or miscommunication why the community didn't weigh in. He thought this spraying was close to city drinking water wells and that the City should have taken advantage of that and spoke against the spraying of herbicide. .� Tim McDonald, wanted to keep his request fresh in everyone's mind to post signs or placards on the area by the waterfront off Nash Road that it was within city limits and there was no shooting or ATV's allowed. n�-7 City of Seward, Alaska City Council Minutes September 28, 2009 Volume 38, Page APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Keil/Dunham) Motion Passed Approval of Agenda and Consent Agenda Unanimous The clerk read the following approved consent agenda items: Resolution 2009-090, Authorizing An Additional Fifty Thousand',PWIlars (50,000) As A Potential Contingency For Unit Company's Contract To Constructseward Mountain Haven Long Term Care Facility. ��r :.. Resolution 2009-091, Authorizing The City Manager Togntvr Into A Con ct!ith Rise Alaska, LLC (Rise) For Professional Project Manageme., eryces Through Sc h ' k tic Design 5 )h. Of A New Co -Located Library Museum Facility And o Apprap iate Funding of -To -Exceed Thirty Six Thousand Seven Hundred And Ten Dolla"ry_($36,7,�0) Resolution 2009-092, Authorizing A Memorandum Of Agreement With The Alaska Railroad Corporation For The Purpose Of Utilizing A State Legiatii"Grant To Dredge The Approach And Berthing Basins Of The,Aasi a Railroad Dock To�Accommodate Cruise Ships. Resolution 2009-093, Accepting The Department Q,f`Cd'm, erce, Community And Economic Development Division Of Community And Regiprial Affairs FY 2010 Designated Legislative Grant For Dredging Cruisgbi B sins And"i pproaches And Appropriating Funds. The September 14, 20¢9, egular C%ty CouneilIeeting Minutes Were Approved. SPECIAL ORDERS, PRES�ITATIONS AND REPORTS ations VBor6i%h Assembly P*port. Borough Assembly Representative Ron Long followed up that funding wit-i", proved f9 Stoney Creek and Bruno Road improvements, and tipped his hat to the work done by the read seol area board. City Manages Report. City Manager Phillip Oates stated there had not been any city expenditures of $10,000 to $50,000 to report to council. He urged the public to view an award winning film "A Sea Change" about ocean acidification tomorrow at the AVTEC Auditorium. Finance. The finance department had been busy preparing the City's first biennial budget, in addition to identifying funding alternatives for the enterprise fund rate review. Staff members were implementing some of the new efficiency items discussed with Council over the past few months. The finance director continued to work with the leadership of Providence to negotiate the new hospital management and operating agreement which expires at the end -of this year. In addition, 97R City of Seward, Alaska Member 28, 2009 City Council Minutes i/_1_ financial questions are being answered from the State Department of Health and Social Services, aimed at establishing the new reimbursement rates for the Long -Term Care Facility. Forest Acres Levee Road. Staff had been working with right-of-way agents to finalize the property negotiations on all remaining property purchases for the levee/road project, and hoped to have all final offers presented to Council for approval within the next month or so. Once property released. purchases were completed, the RFP for a construction contract for the levee project would be Oates stated the harbor had received close-out documents from Swalling nstruction for the I & T Dock Projects and a claim settlement was negotiated. The autos d pay parking station proved successful with about 50% of customers use credit card without an�t=prompting. Oates noted the many Sports and Recreation and Teen and Youth activities tha 'iver6�` earin up for the fall season, and the construction of the replacement sand shed structures ' beg.'Oates thanked over 250 people who attended the Grand Opening of Seward Mountain aiyn on Saturd' eplmber 19, 2009, with elders moving into their new home on October I, 009. Oates updated th6`66 icil on city property replats for the south harbor uplands and librtylmuseum; Title 15 including floodplain management and FEMA updates and on obtaining qu)etitle actionton three lots located within the Two Lakes Park. These lots were obtained by the City of Se{aid in 1939 for delinquent taxes, but the process was never completed. F) MA planned to provde;new Flood Insurance Rate Maps (FIRM) for the City of Seward within the upcoming months and"�a tlyA AT&T had been given the go-ahead to install their tower in Seward WL, City Attorney's Report. Cheryl Bro' king�staled t ,: continued to provide assistance on various matters related to library museum, employment rib"', drug and alcohol policies, building code and enforcement questions, questions oritli levee, utilities and easements, harbor vessel impoundment, user fees and"' ontracts as they arose Oral argument was given to the 9'h circuit court in Resurrection Bay C.Qh§6rvation Alliance (RBC�M`vs City of Seward. Brooking detailed whdtl knew of the lawsuit filed against the Department of Revenue by the Alaska Cl ine Shi :AssociatI' Slle explained that the three elements to the complaint were: 1 A tonnage clause violatipn which}11ited the State of Alaska from imposing fees and taxes for passe ational waters, �;;19 2 Vio tio� f shipping stdutes and clemency clause which states the federal government had control so stat-- vernment uyas prohibited from action, 3. An interstate cot' ercekeblfause violation for managing interstate commerce, which claimed entry fees paid by passengersbhly affects cruise ships owned by people outside the State of Alaska. Brooking noted this was only half of the story since the state had not responded yet. As to a hand raised, Mayor Corbridge ruled that Mr. McDonald was out of order and could not ask the attorney a question at this time. Chamber of Commerce Report. Laura Cloward stated they had a record number of Salmon Derby participants. Both the halibut and salmon derbies were successful in this downturn market. She appreciated the comments by council members that asked at what point do we break the City of Seward, Alaska City Council Minutes September 28, 2009 Volume 38, Page back of the businesses during discussions on enterprise fund deficiencies. Cloward stated most responded to a harbor survey by saying they would continue coming to Seward as long as it was economically feasible. An economic development plan for Alaska was moving forward and businesses were networking on how to survive in this economic climate. Other Reports, Special Presentations Alan Parks of the Alaska Marine Conservation Council, Pres Alaska Coastal Communities Global Climate Change which looked at affects climate change was having on Alaska coastal communities, ocean 4� issues, and the profound affects and the need to understand and determ* stop it. A PACAB report was given by Chair Ron Long. A Seward Senior Center report was given byszecutiv�Director PUBLIC HEARING Ordinance 2009-007, Amending City Original Townsite Of Seward From S Located On The West Side Of Brown 210 Brownell Street. Motion (Smith/Keil) City IV requesting this within the UR contiguous a%tre�d� the city attg fey and g Map By Rezun xmily Residential ef- Ah orth OJ ed a Report on the curses, impacts and M. �iedtion and resource action was needed to erman. ots 25 And 26a, Block 12, To Urban Residential (UR) hington Street At 208 And Enact Ordinance 2009-007 Oates, stated tlushlad been introduced and the applicant was le, -#unable :land: for possible future development uses as allowed �n into conformance with the land use plan. These lots were ann' g & Zoning and the Comp Plan. They were reviewed by no &WEassociated with this rezone. Notice df thepublic hearing n,_ g posted and published as required by law was noted and the public hearingwas o ehed. No on eared to address the Council and the public hearing was closed. P , ;pP P g Motion Passed W Unanimous NEW BUSINESS Resolution 2009-089, Stating An Intent To Fund 54,060,000 For The North Seward Water Storage Tank & Pumping Facility Project Subject To Receiving A Loan In That Amount, Authorizing A Loan Application With The Alaska Drinking Water Fund And Authorizing The City Manager To Accept A Loan Offer From The Alaska Drinking Water Fund With -ft► Payments Subject To Bi-Annual Appropriation. 9An City of Seward, Alaska September 28, 2009 Motion (KeiUSmith) City Council Minutes Volume 38. Page Approve Resolution 2009-089 Oates stated this was a critical item for the water fund that would allow the city to meet current demand and later usage, provide redundancy for other tank failures, and allow the city to request low interest funding. Public Works Director W.C. Casey had a deadline of Thursday to complete an application for $500,000 reduction for the first phase. This put the city in a better position for a 70/30 match when turning in a grant application next June. <. Motion Passed Unanimous Resolution 2009-094, Amending The Legal Services Agreement'nBetween Tlie City Of Seward And The Law Firm Wohlforth, Johnson, Brecht, Cartledge ands -Brooking N Motion (Dunham/Smith) Approve Resolution 2009-094 Yh. Oates stated this firm had been invaluable and best interest of the city to approve it. The firm had not requested an increase for yis increase was factored into the upcoming budget. It remained Oates' objective to keep legal costs as 16iV as possible. g a� Keil could not support this increase be au5€f critical infrastructure needs. She felt when revenues go down you could not increase s in eid. to g �<r ;l� In Section 2, remove the words "immediately Amendment (Keil/Valdatta' --upon adoption" and replace with January 1, x z 7 a 2010. Amendment Passed Unanimous z � = 000 Unanimous consent was given to amend in Section 1, after the words "enter into.." add '"M the words "Amendment #1 to" Main Motion Pased as Amended 4-1 Yes: Valdatta, Smith, Dunham, '= Corbridge No: Keil INFORMATIONAL ITEMS AND REPORTS (No action required Financial statements for Providence Seward Medical Center as of July 2009. ... Two resolutions approved by Port & Commerce Advisory Board were reviewed. Resolution 2009-007 Recommending the City Council authorize and implement necessary improvements for the pedestrian corridor between the cruise ship dock, railroad terminal and small City of Seward, Alaska City Council Minutes September 28 2009 Volume 38, Page boat harbor area. Resolution 2009-008 Recommending the City Council authorize and implement a transportation plan utilizing state cruise passenger tax receipts to provide passenger access between the cruise dock, business districts and the Alaska Sealife Center. City Manager Oates would bring RFP parameters before the council. A memo on Chugach Electric rate increase. Councilmember Dunham notified the public a 9.7% increase was .dining` from Chugach Electric.-..'r;, COUNCIL COMMENTS Keil thanked the Mayor for his statements and thankp"d'everyone who particio%6d'in making the Long -Term Care Facility a reality. She thought Seward shouh be proud of thIffacility. The music festival was great and she thanked the organioe T that "O'efit. Dunham also thought the Long Term Care Facility wad` eat. He was very proud of Christy Terry for coordinating. He thanked Rolf Bardarson for mm t�i iwr q ed van at mile 4 today. He was delighted it was gone. He thanked therra society and the po'��iY players for organizing the a music festival. The blues train also was bi s,�ss,, He noted' VTEC's accreditation people were in town. Dunham explained it was Da iyl Sc 'e fq' who spent months working on recouping $1.6 million from Exxon when he wads' enapl4oyed with the city, and that that money would not have been here withoutdati3ligence ofKScliaefermeyer. CITIZENS COMMS Russ Madd x echoed2, ut signing up on the climate change issue. He heard there was suppose to b SO °ncl sea le rise on the west coast coming. He thought it showed great leadership make a planes and everyone to sign onto these compacts. "TimieMeDonald than kd Mayor Corbridge on his tenure as Mayor. He reminded the city council even th4gh it was i11 mportant to keep the municipal ship afloat, but there were a lot of things affecting the citizt3and Veryone was hurting. It was not popular to raise rates and he thought policy and facing fact ere what was important now. McDonald stated it was time to allow people to hook up wind gerxFexation. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS In response to an earlier citizen comment, Oates wanted to bring to the council's attention and note the Public Works Director did not think there was any threat to the city water system or it would have been brought to the council. 9A9 City of Seward, Alaska September 28, 2009 ADJOURNMENT The meeting was adjourned at 9:15 pm. Jean Lewis Clark City Clerk Mayor (City City Council Minutes no13 City of Seward, Alaska City Council Minutes November 09 2009 Volume 38, Page CALL TO ORDER The November 9, 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Willard E. Dunham. OPENING CEREMONY Police Chief Tom Clemons led the pledge of allegiance to the flag Mayor Willard Dunham called for a suspension of the rules to�dio�w for a moment of silence in honor of Veteran's Day and those who served for the country< < „, ITEMS SCHEDULED Dixon stated he had been From drunken driving and Stance from the Troopers. ults from state authorities ought it was out of their Karin Sturdy announced the members of the TYC council to the council and public. She announced the various jobs and duties of those who served on the TYC council and noted the City Council met with the Teen Youth Council earlier this evening for a pizza party. The youth council members then announced their name and how many years they had served on the council. Howard Ferren thanked council for supperting 2009-120, which was on the consent agenda. Alan Parks with the Alaska Marine Conservation Council attended a council meeting and presented 9AA City of Seward, Alaska November 09, 2009 City Council Minutes Volume 38, Pa e on the Alaska Coastal Communities Climate Change Compact earlier this year, and he appreciated council's support. Jeff Mow spoke to council on recent National Park Service activities. There was a Park Service planning meeting on November 19, 2009 regarding development of the Herman Leirer Multi Modal Trail, with in mind of alternative access at Exit Glacier. This was not to be confused with another project out at Exit Glacier, which was a traditional use study of the area. Paul Tougas stated he had initiated some discussion on the requirements for public notice in regards to newspapers and web media, and felt it was a discussion for 2010'-�w.. Tim McDonald spoke on the clerk's office and he was very;_h'4ppy witht`hk r office. The right information was a legal right and felt transparency in govern enf Was worth protecting. Tom Tougas spoke on Resolution 2009-122 and wdntedjo know what this plan was and wished council to refer this item to PACAB before approval He vAkuld like to see more public input on this item before approval.. p p Ron Long wanted to be clear that council directed PACA`)3'"tio'come up with a North East Harbor Development Plan, which they did and it ent to council If they did refer Resolution 2009- 122 to PACAB tonight, they would like to logk a i ,1f Aot distinguish some particular items. x vh; APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson/Shafer), Approval of Agenda and Consent Agenda Motion Passed Unanimous The following was added Discussion Item onlood Boai^ Openings under Other New Business Items The clerk, read the foll-""ing approved consent agenda items: Resolution 2009-119 Accepting A Grant In The Amount Of $1,827.30 From The Alaska Highway Safety;Office For 2010 First Quarter Alaska Strategic Traffic Enforcement Program (ASTEP) Dring Under The Influence (DUI) Enforcement Campaign And Appropriating Funds. Resolution 2009-120, Supporting The Alaska Coastal Communities Global Climate Change Compact. Resolution 2009-121, Authorizing The City Manager to Enter Into A Purchase Agreement For 30,000 Feet Of 1/10, 15KV Primary Wire For A Total Amount Not To Exceed $59,850.00. noc City of Seward, Alaska City Council Minutes November 09 2009 Volume 38, Page Resolution 2009-123, Approving Amendment No. 14 To The Contract With Hoffman, Silver, Gilman & Blasco, P.C. To Extend The Term For Federal Lobbying Representation Through December 31, 2011 For A Total Of $6,416.66 Per Quarter In 2010 And $7,058.33 Per Quarter In 2011. Resolution 2009-124, Approving Amendment No. 21 To The Contract With Kent Dawson Company, Inc. For State Lobbying Services Through December 31, 2011 For A Total Of )rough he had Clure ce that by the ie calls Lion of onthly before waste )rough )eputy ability unities )il and as also lectric rgency ,unami Inundation Map and other issues with City staff and members of the public. The City was working to establish a quarry contract with West Construction (Anchorage, Alaska) who was awarded the Breakwater Extension Project by the US Army Corps of Engineers. The Harbor was working with Alaska Logistics to develop a lease for Lot 2, Block 3 at SMIC. The Harbormaster and a representative from the Chamber would attend the Pacific Marine Expo in Seattle November 19-21, 2009 to promote the Harbor and SMIC. 9uA City of Seward, Alaska November 09, 2009 City Council Minutes � r olume 3� The new sand/plower truck had been ordered and should arrive at a perfect time to be put to good use. Public works would face the onset of winter with a full staff. The new water tanker should arrive any time. Reminder: Please remove all items from the right-of-way in preparation for winter road maintenance. Mayoral Report. Mayor Willard E. Dunham reported on his recent travels on behalf of the City of Seward. Other Reports, Special Presentations PUBLIC HEARING Resolution 2009-104 through 2009-1 l4 Adoption Of Fisca Consisting Of General Funds, Enterprise Funds, Motor P The Capital Budget. Notice of the public hearing being.pos was noted and the public hearing was opened. Tim McDonald felt SMIC was slated for a loss for council to do something about it. Tom Tougas had concerns with the prdj City of Seward $544,171.98 in sales tax and heat and head tax. Revenues were down $800,000. be drastically down. Tougas 5,tated f -was critic the projections were going,td`` eclme,. "He felt the and the seasons were getting shorter Ifthe city' seasonal businesses would-be nut ouf"nfhvcinPs The public hearing was 2010 And 201I City Budget, Id, Debt Service Funds And published as required by law straight and encouraged ected're�tnub budget. In 2008, his company paid the d tax: In 2,009, they would pay $429,601 in sales tax Sales tax°on tours and fishing charters alone would it. to look at the real sales projections, as each year ,decrease was mostly driven by the high cost of fuel continued to add to the costs to do business, more 5liater wanteds�lo__know`if staff had a plan if the projections were as low as some were anticipating. Oates reapinded administration did have plans if that was the case. There were some �t areas where revenue was up, but obviously tourism numbers were not. Finance Director Kris Erchinger stated the; oal was to look as broadly as possible. Unfortunately, the best place to get information us9 retrospective. Third quarter projections of the city sales tax, typically the largest figure of the year; were not yet in from the borough. Erchinger stated they had to look at gross sales and what was<going on in community as a whole. Tourism was down about 31 %, but everything was up in the air. Thankfully the community was not heavily reliant on the tourism industry, but still was somewhat reliant on it. Staff had cut back tremendously on the motor pool fund, and was being as aware as possible to keep costs down. Keil felt very uneasy about passing a budget without the current sales tax figures. Erchinger ` stated she thought they may have them by Nov. 20, 2009, but it still might not be an accurate representation of the numbers, for reasons such as delinquent filers. Oates stated this was a working k7.r.. City of Seward, Alaska City Council Minutes November 09 2009 Volume 38, Page document, and it could always be amended and re-evaluated as projections and figures became available. Smith understood the problems before administration. Until they received the sales tax numbers, they really didn't know. He didn't know if he was comfortable with the assumptions or not, but it really was anyone's guess. Dunham commented on the lack of staff layoffs. He was proud the city was4laying anyone off, that administration was able to balance the budget but still hold on to the staff, as keeping staff was still a dispersal of funds back into the city. Bardarson wanted to say in fairness of the borough, the third quarter reporfs v`eren't,dae until the end of October. Keil wanted council to consider privatizing roads arld streets in 2011. It was too late to do it for 2010. Amberg added this had been brought up manyts in thepast, contracting services out. There were qualified businesses in town to do some city*, rk�,The city did not have to be the employer; she would like to see that be discussed again.:', Resolution 2009-115, Amending The Elects Annual Adjustments To All Rates And Fee Years' Average Increase In The Anchorage And Automatic Pass -Through Of Rate Inei And Charges Tariff To Include Automatic Amounk Equal To The Previous Five Full rerPrice Index For All Urban Consumers, roan Chugach Electric Association. Motion (Bardarson/Smith) Approve Resolution 2009-115 Oates stated this was probably the most critical of all tariff changes tonight. This resolution +r, presented a 5% increas§ ui20h0; a`51 in in 2011, and thereafter based on the CPI. Staff eliminated the industrial rate,hich affected the Alaska Railroad, the Alaska Sealife Center, and Icicle Seafoods The city managei was preparing to establish special electrical rates at the December 14, 2009 cognetl inetmg for these`three businesses. A rate study had not been done since 1993, and even the�nt was decidetf pot to increase as recommended. It was unfortunate to bring these increases to coal when econorruc times were as difficult as they were, but the condition of the critical infras#ri dire outweighed in importance and the utility was seriously underfunded. Erch nger.,pa'ssed out possible rate increases for the average residential customer. Water and sewer had beet added, with respect to both residents inside and outside city limits. For inside city limits, users ebuld expect their bill to go up 5.19% and outside users 5.82%. The fuel factor could always change these figures, also. Oates stated this tariff also passed on any increases Chugach Electric tagged on, which the city could no longer afford not to pass on to their customers. Electric Utility Manager John Foutz noted any decreases received from Chugach Electric would be passed along to the customer as well. Notice of the public hearing being posted and published as required by law was noted and the public ')AJQ City of Seward, Alaska November 09, 2009 City Council Minutes Volume 38, Pa e hearing was opened. Tom Shirk, spoke on behalf of the Seward Windsong Lodge. He felt the resolution was not clear for indicating the actual proposed increases. With standard rate increases, Shirk estimated they would be paying 10-12% more. As stated earlier, tourism was down this year, and the Windsong was down 40%, with projections of business continuing to decline. Workforces were reduced and they had to take whatever action possible to reduce energy costs. Even so, 2009 costs were $105,000 in electric, which equates to a $5,700 increase inutility rates. Shirk stated the City, pf. Seward needed to run their business the way any other business in Seward did, which was bu c`i i; i; hack Rhonda Hubbard, thought it was presumptive to assume no one �ould,want to buy the electric utility. She thought it worthwhile the council consider it. She;disagreedwt-the mayor that the city did not need to cut workers and asked what was wrong,,,with contract labor. `The most disconcerting was raising these rates with a large population outside of city (units without representation. She had talked with Homer Electric and was sad,Seward was just," w considering no net metering. Hubbard encouraged council to consider alternative Jenergv ideas. Tim McDonald, thought Hubbard may be on to something The., city should look at a long term plan. He stated Seward had some of the best renewable energy otential in Alaska with tidal, rain, wind, and hydro. It was something to for,the future to study" and the utility be phased out as obsolete methods of power generation. There was merit,in these thoughts. The public hearing was closed. Valdatta commented,on the sf`reet lights and that he had heard our electric lines were in terrible shape. He was in,favor of raising fees for improvements of items like street lights. Smith said the'"Ohy, could go t6_dlternative sources of electricity. Seward didn't generate electricity, the problem was !the distribution. The wires poles, transformers, all of these responsibilities would exist no°>matter'what kind of energy was pushing out the power. raising the KW hours by 5%, but it now appeared to her it was an So many were one time uses, she didn't feel it was worth debating, Oates catnpiemed a lot of people thought they knew what the status of the utility was, but he felt pretty up topeed on the condition. Renewable power was tremendously expensive to establish. The city may get to the point where the most prudent thing to do was sell the utility. At this point, Oates didn't feel it was viable. Someone might buy it, but probably wouldn't pursue emergency back up generation for the community. Shafer stated she would like Oates to look at special rates for hotel/motels. City of Seward, Alaska City Council Minutes November 09, 2009 Volume 38, Page Dunham stated Seward had some areas with lines that gave up to a 40% loss. There were problems in the system. It was a painful increase, but he also pointed out they have not raised rates and now may be the time to do it. It was time to repair. Bardarson wanted clarification on the 5% increase. Erchinger stated the increase was 5% in 2010, 5% in 2011, and whatever the Consumer Price Index increase was thereafter. The way this resolution was made before the council, in 2012, the CPI increase would be implemented each year until council changed that. Keil was not comfortable with the automatic mereo"dSe, neither was »W Amberg. Oates clarified that CPI was only to keep up with inflation. Not having -"a CPI"Just gets you behind, as the city already was. �y Motion Passed Unanimous; Council recessed at 9:12 p.m. r` Council resumed 9:21 p.m. Motion to Reconsider (Keil/Bardarson) 15 Keil felt the title language was confusing and she thoughtth"e I" ere just reviewing these for public hearing tonight like the budget resolutions. She was not under the impression this resolution was up for adoption tonight. Smith said they could always amend the tariff and give direction to look at special rates. r: Oates stated they had provision for a special rate in the tariff and the code. He planned to bring these resolutions for�special races back to council on the December 14, 2009 meeting. r,f Motion to Reconsider Failed , Unanimous Resolution 2009 116 Amending Th'e Port And Harbor Tariff And Providing For Automatic Annual Adjustor its To Moorage And Dockage Rates By An Amount Equal To The FivePrevious MFYears'�Average Increase In The Anchorage Consumer Price Index For r All Urban Consumers Motion (Bardarson/,Amberg) Approve Resolution 2009-116 Oates stated this resolution addressed an increase to the rate structure of the CPI which was 2.8% in 2010'and 3.1 % in 2011. Harbormaster Kari Anderson restated the changes before the council. There was a moorage rate increase and the introduction of a capital renewal/replacement fee. She felt there were appropriate amendments to make for larger vessels. The electric infrastructure fee and fish tax would go directly to harbor to replace D-float. Rate structures in SMIC storage fees were adjusted to not promote long term storage or abandoned vessels. Staff was trying to make sure they could do ...� 94n City of Seward, Alaska November 09, 2009 City Council Minutes Volume 38, Pa e replacement/maintenance on places in the harbor that were given to the city by the state in poor condition. Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. Ron Wille talked about what these changes meant to Kenai Fjord Tours. Neither of these were modest increases, he felt. When adding fees for the capital repair/replacement fund, the moorage expenses for KFT went up 12%. The corresponding increase with storage:.across the bay would go up over 70% for storage at SMIC. It was cheaper for him to put his big boats`in the water than to keep in storage. Another hard hit was the changes as proposed would cause them to make additional personnel cuts. There had already been a reduction in staff and he ad.to reduce for the upcoming year already. By unanimous consent, Council suspended the rules to allow Wille,to continue'speaking. Wille offered proposed amendment ideas and suggested counc.4, institute a hiring freeze. The resolution stated the enterprise funds were operated in"a mirher equivalent to a private business. What his company had to do was hold the line on costs; and the �t should really cut costs instead of raising rates if they acted like a private business. Tim McDonald, suggested on the den of waiting for a decade of arrears in payment. Susan Kaanta, had been involved with Elie promises of improvement, but redproduct seen there had been many problems and things were accountability on additional raised,,rates, - set a reasonable time limit instead harbor for many years. There had been many When the city got the harbor from the state, confusing. She would like to encourage Rhonda Hubbaras getting harder and harder to get fishermen to Seward. She hoped Seward could improve; the hospitality for fishermen and transients. Hubbard needed clarification_orithc capital rene —) and replacement fee in regards to the fishing industry. She was frustratedl'with all the increased fees but was glad to see the general fund giving up the fish tax. Hubbard thought the ould petition the borough for their portion as well. She felt the lack of accountability really decreased people coming to Seward to use the harbor. Dian "Dubuc, was a resident and small boat harbor business owner in Seward. She was frustrated with;fli'e increase in fees as well. Proposed was a raise in slip fees, moorage increases, and plus sales tax:` She was not in a position to increase fees to her guests. Visitors wanted a deal and would go the furthest to get it. She asked council to look at proposed maintenance tariff. Ron Long, stated PACAB did the best they could in reviewing the budget. He noted the board did not have the operational budget in front of them when making recommendations. The board was looking to turn the dynamic around in SMIC when coming up with storage fees in that area. Long wanted to encourage business and hope the council would attempt to meet the user Onl City of Seward, Alaska City Council Minutes November 09 2009 Volume 38, Page halfway, and not put all the increases on the user for the harbor improvements. He also was a business man in the harbor who had to lay off workers who live in Seward. Tom Tougas, stated he would never ask for a special rate for his company. He wanted to be part of a vibrant, healthy economy. They were talking about capital intensive businesses and a portion of the moorage rate goes to operations and a portion of the CPI increase should go to capital improvements. Tougas noted as fares increased, sales and property tax would decrease. The public hearing was closed. Bardarson understood derelict problem, but also agreed that thes6 were gpeople who did not bother to pay initially, and asked was it really going to accomplishge ting ridVf ,qrelict-,Vessels? Oates stated part of the problem was they become man power.;aritensive. He" agreed with Bardarson's derelict boat comment, it didn't matter what you charged, they weren't going to pay. Anderson stated there were several tiers of problems with,SMIC and derelict vessels. Oates stated they wanted to encourage people to come over, but didn'tvt to encourage them staying too long. Motion to Amend (Bardarson/Keil) Amend Resolution 2009-116 Section 280 .0 k � `< subsktibn 2 of the 2010 and 2011 Harbor Tariff from a lay time rate of $.15 to $.10 per linear foot of the overall length of the vessel per calendar day, from 180 days to one year, and from $.30 to $.20 for charges for stays over one year. In lieu of the 10:30 p.m. ti' eXestraints, council recessed the November 9, 2009 regular city meeting to the following dayrpediately following the Seward Ship's Drydock scheduled work sessin'at1k;�(�.m. in the city council chambers. Council recessed at 10:30 p.m. The NovemUer 9� 2009 City Council Meeting resumed at 12:24 p.m. on November 10, 2009. On the floor wasain motion to approve Resolution 2009-116 and a motion to amend Resolution 2009-116. Anderson dispensed out a hand out to council to run some numbers by council. With these changes, they may go backwards with stays less than 30 days. The proposed amendment for $.10 was slight and doable, she felt. Motion to Amend Passed Unanimous 999 City of Seward, Alaska November 09, 2009 City Council Minutes volume 38, Pa e Shafer was not comfortable in annual changes not going before council each year. She wasn't sure if it should be automatic. She realized why moorage rates had to increase, but the harbor was a major economic generator the city, and if they kept hitting people with fees, she was worried they would lose people. Oates' concerns were paying off the revenue bonds in the harbor and to build up a bigger reserve in the harbor. D float and dredging needed to be done. If they cut the budget back too much, they wouldn't be able to get too many things. Shafer wanted to see aprofessional assessment of the float to see howpch that would cost. Oates stated another challenge was to receive g grants they had to provic3esmatchirlg"funds. Erchinger pointed out the cash flow statement of the harbor budget and'the entire budgfi`.vvould have an increase in cash of approximately $3,806. The city gave alL$365 000 4fish tax 6 harbor, gave half to MMRF for the first time in 15 years, she estimatede"Their goals were to,work on capital improvements, get debt paid, and breaking even. If passenger fees�stayed low, the city would still have to pay bond payments; and the maintenance fund woul- have to go on back burner because bond payments must come first. The increase in fees was to fiiC some problems, one of them being with paying the bond payments down the road. Keil argued more Moats would be leaving Seward if they kept raising rates. .. Shafer wanted to delay on the capital renewal' and replacement fee for one year. She was worried they would hurt the businesses too much.,She thought they had to be realistic about what people were facing out there. She understood the concern, but felt the council needed to allow the businesses to generate business Motion to Amend (Shafer/Keil) Delete Section 231, the Capital Replacement and Renewal Fee, in the 2010 tariff, but leave in the 2011 tariff and , change the fees for vessels 45 to 79 feet from $20.00 to $15.00 and vessels 80 feet and longer from $30.00 to $20.00. t)ates supported the amendment. It was needed but it was not the time to introduce the capital renewal, and replacement fee. He would ask for continued support of the CPI increase. Anders6h stated out of 600, maybe 90 vessels would be over 45 feet in length. Smith said if they got the Exxon Valdez settlement money, the city would be able to fix D-float. If they charged each boat a yearly fee, he estimated it would be $30,000 roughly. He felt they have time to buildup for other things, but D-float needed to be fixed. Keil said they needed an assessment of d-float. Motion to Amend Passed Unanimous OnQ City of Seward, Alaska City Council Minutes November 09, 2009 Volume 38, Page By unanimous consent, the rules of order were suspended to allow a second public hearing on this resolution. Tim McDonald said the city should be planning for larger costs, every shiplift outside Alaska was cement and they should prepare for that. He thought they should have costs associated with people working on boats. Diane Dubuc didn't believe it was prudent to double costs of lay days T)zy✓as why boats came to Seward to die. Dubuc wanted to know why couldn't the cruise ship tax fund` float. Ron Long said this was his testimony alone. He tried to poll PACAB'o ome input, but was unable to deliver. He provided a lay down to council to consider et houghf iO11, Slie tariff capital renewal and replacement fee should be seen as a percentag -T, Qr the tariff could be amended at anytime and PACAB would be reviewing`and bringing it to cc iuicil later, as well. An automatic CPI increase seemed convenient, howev r may take the public ut of the process which should always go before the council. He had no, lieartbucnawith the CPI, but wanted the opportunity each year to review it. Ron Wille thanked council's support on these issues Hetiid'Kenai Fjords Tours did not W v want a special rate, either. They contributed hundreds and thousands of dollars, but now with revenue down and passengers down. He thanked coI Qil,for their consideration. Tim McDonald played advocate about SMIC. Il�should have half the effort of the harbor crew, he thought. Why was the city, not considering divesting themselves 100% of the facility? If they sold SMIC, it would be uft' ec pyofessional management. The city wouldn't have to deal with the environmental issues. ,lf it was worth $26M=as some estimated, he said sell it. Dunham responded;the state was about $7 million short incoming up with their share for the � �. boat harbor. They had never;c�mpleted their sale agreement to Seward. He reminded the public that Seaton would be to Seward the nextiwo days and hoped the public would speak to him about money in the harbor:' p 4p. o i, MainiMption Passed as, Amended Unanimous Res olutio'W,,,,, 009-1174. Amending The Water Tariff And Providing For Automatic Annual AdjustmentVTO All Rates And Fees By An Amount Equal To The Five Previous Full Years' . N Average Incrf a"se In The Anchorage Consumer Price Index For All Urban Consumers. Motion (Bardarson/Shafer) Approve Resolution 2009-117 Oates stated administration compared competitive water rates in the state. The real challenge was to increase rates to meet the need. They were proposing a 4.8% increase in 2010, a 5.1 % increase in 2011, which was CPI plus 2% each year. Erchinger said this increase for the average customer equated to extra $4.68 per month. 294 City of Seward, Alaska November 09, 2009 ON Council Minutes volume 38, Pa e Public Works Director W.C. Casey stated the critical needs of the water department, including a new water storage tank, a roof on the gateway tank, and the pressure station project. He wanted to be clear on his optimism on state funding. They were given $600,000 already for the water tank project. He was optimistic with the engineering completed and ADEC approval, the city was posturing themselves to apply and be successful for 70/30 matching grant dollars from the state. Staff was working diligently to bring down the $4 million sticker price of the project. Casey stated staff was going to start working on some projects in house He wVi ted council to consider the miles and miles of water/sewer main, treatment facilities, and" astructure Seward had. It was not a matter of being able to shut part of a service off, they were all4o*ed and needed to be operational. There were certain costs associated with infrastructure.that the}rwere stuck with. Staff was looking at energy efficiency and upgrading with more efficient equipmen Oates stated the water in Seward was the best an, ywhere. Icicle Seafoods was the one business in town affected by this tariff change, as well as the elec, c, changes. Erchinger said she had proposed rescinding some prewipus, resolutions, which would have disaggregated Icicle's bills, but after discussions, the decision was made to keep those past practices. Shafer stated the multiple increases were going to have a negative effect on some businesses. �— Amberg didn't like special rates. Motion Passed Unanimous Motion to Reconsider (Bardarson/Amberg) - Reconsider Resolution 2009-117 due to lack of public hearing held. Mayor Dunham noted�iepublic hearing was not opened prior to passage of this resolution as required by law�S He requested`coiz di reconsider this resolution in order to hold a public hearing. e 2; Motion tof Reconsicje"assed Unanimous Y yr . Resolut .2009 117, Amending The Water Tariff And Providing For Automatic Annual Adjustmentsi;To All;Rates And Fees By An Amount Equal To The Five Previous Full Years' t 34 Average Incr$ea -In The Anchorage Consumer Price Index For All Urban Consumers. Motion afer) Approve Resolution 2009-117 Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. Ron Long thanked the council for lunch. The public hearing was closed. nnc City of Seward, Alaska City Council Minutes November 09 2009 Volume 38, Page Motion Passed Unanimous Consent Resolution 2009-118, Amending The Wastewater Tariff And Providing For Automatic Annual Adjustments To All Rates And Fees By An Amount Equal To The Five Previous Full Years' Average Increase In The Anchorage Consumer Price Index For All Urban Consumers. Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. No one appeared to address the Council and the public hearing w4sosed. Motion (KeiUBardarson) Approve Resolution2049-118 Casey said the improvements needed were diesel engine replacement at th4 Forest Acres Lift Station. Because of state regulations, they had to install doubleyall fuel t nks` at several facilities. There was some bypass valving to be done at SMICP, =A"gerierat©r for lift station #1 at the boat harbor was needed. Some of the critical needs had been -included in the operating budget for the sewer system, which was going to save money in the longterm _ r*i Erchigner reminded council that the city had hired ML"Easter and Associates for a water system study and Casey has engaged them to do a similar study ou the sewer system. She pointed out the critical needs list may be quite different next year. Erchinger noted this increase would equater'to $2:07-"month for the average user. *A Motion Passed Unanimous NEW BUSINESS Resolution 2009-12 Corporation (URS) For Amount Not -To -Exceed Boat Motion to (thbrizing The`City Manager To Enter Into An Agreement With URS Change Order 97 To The East Harbor Expansion Contract For An $72104I:221 And Appropriating Funds For Engineering, Design And A Northeast Harbor Uplands Development Plan In The Seward Small Approve Resolution 2009-122 Add the following: "Whereas, council directed the Port and Commerce Advisory Board to forward a North Harbor Development Plan, and PACAB passed Resolution 2009-002, which includes some of the elements the contractors will consider as part of this award, and others they will not; and Whereas, in order to ensure that the engineering and design functions of this award do not preclude Oor, City of Seward, Alaska November 09, 2009 City Council Minutes Volume 38, Pa e Motion to Amend Passed implementation of the remainder of the North Harbor Development Plan forwarded by PACAB, that plan and its attachments be forwarded to the contractors for consideration in their work product." Unanimous Bardarson had a question on the fiscal note of the agenda st funding for the project came from a Denali Commission grant, which work had already commenced. This was in addition to their con underground utilities. z Keil asked how long URS had been the engineer for.tl is project. AndersoAoted URS was formerly Tryck, Nyman and Hayes and she estimated they -had been,with the project since 2000. Main Motion Passed Unanim6ii OTHER NEW BUSINESS By unanimous consent, council recommended Cmdy Ecldurid for the Kenai Peninsula Borough Planning Commission vacancy to be appointed -by the: Borough Mayor David Carey. Discussed Advertising Media: council decided this'was a discussion for later. Flood Board Openings, Discussion. nt:_.. Anderson said the mMarch 2010, and this vas, for,,inore of Mayor Dunham encouraged all council members to start looking for members to fill the three vacancies on the Seward Bear �C-rcek flood Service Area Board. REPORTS (No action required) Shafer'said°the budget was always difficult but she thought they did a good job this year. Barddrson thanked the public for participating in the budget process. Dunham reminded everyone of the Veteran's Day activities tomorrow. 20 years ago the Berlin Wall came down. On Wednesday at the Senior Center the American Legion was putting on a Veteran's Appreciation lunch. He thanked the TYC council for the presentation and dinner. Dunham congratulated Casey on the fish ditch. Representative Seaton was in Seward tomorrow and the next day. He thanked Robin Coleman for years of service to the city, 0n7 City of Seward, Alaska City Council Minutes November 09, 2009 Volume 38, Page CITIZENS' COMMENTS Ron Long, hoped they could keep tearing down walls. The flood board seats were valuable positions. He commended Assembly Member McClure for her neutrality. He thanked council and administration for the budget process. Not having the state budget and the P quarter sales tax figures made it hard to have a calendar year budget instead of a fiscal year budget. Tim McDonald, read vote results from the 1992 ballot proposition the salovlease of SMIC, both were defeated. He pointed out the citizens voted to not do business,with "rd Ship's Drydock anymore. The harbor side was making money, the SMIC side was 6L The city had every right to revisit the contract and do away with the present situation. It `was . ygwhelmingly not approved by the citizens of the city, and he felt this could solve a lot of budget pro�il'�ms. McDonald said the present situation was unacceptable. �^ COUNCIL AND ADMINISTRATION RESPONSE TOACITIZENS' COMMENTS Keil thought there was a vote in 1994 or 1995 for the inainienance and operating agreement that did pass. Oates said the city could not sell SMIC the, way the funds came to them to use the shipyard. Dunham said the conference he recently attended warned to never sell waterfront property. Bardarson was reviewing the,budget process and wanted council to think about going to a fiscal year, so state money and -sales' tax revenues would be known. This would also alleviate new council members coming on right in the middle of budget process. There was merit to looking at the middle of the year. Shafer said when th' ity went to the calendar year budget they did not have a lot of public input. She regretted, doing so, and "agreed it would be better to have a fiscal year budget. ;t lyr'chinger stat�it, was ahuge impact on the departments on the change in schedule and to be devel, 0i the budget' k' summer. She wasn't as compelled by the sales tax 3rd quarter projections, becai s� still were always projecting forward regardless. AD APPEAL Reffiedel. terminated — no appeal needed) ADJOURNMENT The meeting was adjourned at 2:30 p.m. 298 City of Seward, Alaska November 09, 2009 City Council Minutes Volume 3$ P e Johanna Dollerhide Acting City Clerk (City Seal) Willard E. Dunham Mayor r&m City of Seward, Alaska City Council Minutes November 23, 2009 Volume 38, Page CALL TO ORDER The November 23, 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Willard Dunham. OPENING CEREMONY Police Chief Tom Clemons led the pledge of allegiance to the flag. ROLL CALL There were present: Willard E. Dunham presiding and Jean Bardarson Tom Smith comprising a quorum of the Council; and Vanta Shafer Linda Amberg Bob V aldatta,. Marianna Keil Phillip Oates, City Manager Christy Terry, Community Development Director standing., in for the City Clerk's Office Nanci Richey, Administrative Assistant_ ABSENT — None CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING Tim McDonald objected to passing Resolution 2009-106, the SMIC Enterprise Fund budget. APPROVAL OF AGENDA AND_ CONSENT AGENDA Motion (Keil/Amberg) Approval of Agenda and Consent Agenda Resolutions 2009-104,105,108,111,129 and the cancellation of the December 28, 2009 regular city council meeting were pulled from the consent agenda. Resolutions 2009 112 and 107 were added to the consent agenda. A Mayoral Report was added to 6E of the agenda. Motion Passed Unanimous The clerk read the following approved consent agenda items: The October 12 And October 26, 2009 Regular City Council Meeting Minutes And The October 20 And November 9, 2009 Special City Council Meeting Minutes Were Approved. inn City of Seward, Alaska November 23, 2009 City Council Minutes Resolution 2009-106 Adopting The Seward Marine Industrial Center Enterprise Fund Budget For Calendar Year 2010 And 2011. Resolution 2009-107 Adopting The Small Boat Harbor Enterprise Fund Budget For Calendar Year 2010 And 2011. Resolution 2009-109 Adopting The Hospital Debt Service Fund BudgetFor Calendar Year 2010 And 2011. Resolution 2009-110 Adopting The Seward Mountain Haven Long Term Care Facility Debt Service Fund Budget For Calendar Year 2010 And 2011. Resolution 2009-112, Adopting The Electric Enterprise Fund Budget For Calendar Year 2010 And 2011. Resolution 2009-114i Adopting The Capital Improvement Plan For Calendar Year 2010 And 2011. Resolution 2009-127, Rescinding Erroneous Resolution 2009-123 And Approving Amendment No. 14 To The Contract With Hoffman, Silver, Gilman & Blasco, P.C. To Extend The Term �. For Federal Lobbying Representation Through December 31, 2011 For A Total Of $6416.66 Per Month IN 2010 And $79058.33 Per Month In 2011. (Corrects the previous resolution typo from quarterly to monthly) Resolution 2009-128 Authorizing ;And Supporting A Small Sign Honoring Long Time Resident Patricia Williams And Family To Be Placed Under The Spruce Tree In Pat Williams Park For An Amount Not To Exceed $1,200. Resolution 2009-130. Adopting An A£1`ternative Allocation Method For The FY2010 Shared Fisheries Business Tax Program;` And Certifying That This Allocation Method Fairly Represents The Distribution: Of Significant Effects Of Fisheries Business Activity In The Cook Inlet Fisheries:Managemerit Area. xesomnon ZOU9 131 Authorizing Early Adoption Of Governmental Accounting Standards Board Statement No 54. Establishing New Fund Balance Classifications, To Be Consistent With The 2010/2011 Biennial Budget. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Proclamations and Awards A Certificate Of Appreciation Was Given To Mike Gillen, Project Manager For The Long -Term Care Facility. 11M City of Seward, Alaska City Council Minutes November 23, 2009 Volume 38, Page Mayor Dunham presented the "Just a Darn Good Idea" Award that Seward won at the Alaska Municipal League Conference for the Seward Mountain Haven Long Term Care Facility, and thanked Christy Terry, Phillip Oates and Kris Erchinger for their dedicated involvement. Oates also thanked City Clerk Jean Lewis for coming up with the idea. City Manager's Report. City Manager Phillip Oates stated since the last Council meeting there had been no city expenditures of $10,000 to $50,000 and no Requests For Proposals (RFPs). Oates notified that Representative Seaton visited Seward November I f and 12`h and attended sessions with the city council, various commissions, and the public as well=as a number of Veteran's Day events in town. Also, the Library/Museum design planning sessions werdheld last week and the Alaska Sealife Center would host a "Marine Gala" on January 17, �010 at the Dena'ina Center in Anchorage. H1N1 vaccine clinics were held at all three schools with'a second cline scheduled for January 6, 2010. Oates attended a Renewable and Naturat:Resourees Conference fin -Anchorage. Oates also clarified that the party planner for the City-thristmas- Party was paid'i00% by the employees themselves and no city funds were expended -for these parties. Chamber Of Commerce Report, Director Laura Cloward discussed how 72% of the U.S. Chamber of Commerce businesses were disappointed with government, on all levels. There was a campaign for free enterprise to consider alternatives because of jobs_needed and public partnerships were being encouraged. City Financials for September 2009 were discussed. Oates stated overall revenues were lower in September than in the prior year. Finance Director Kristin Erchinger thanked the Kenai Peninsula Borough for their promptness in delivering the new numbers. Mayor Dunham gave a reA rt ogthe AML and the ACoM Conference held in Anchorage. Council Members 1VM4nanna Keil and Jean Bardarson also reported on their trip to AML. - - _ T- . ----- Resolution 20-09-126, Authorizing The City Manager To Enter Into A New Lease With Alaska Logistics, LLC For Lot 2, Block 3, Seward Marine Industrial Subdivision, Plat 97-27, Seward Recording District, Third Judicial District, State Of Alaska. Motion (Bardarson/Shafer) Approve Resolution 2009-126 City Manager Phillip Oates stated Alaska Logistics, LLC submitted aproposal to lease this property within the Fourth of July area at Seward Marine Industrial Center. This property would be used to construct a large vessel maintenance and repair facility in support of their western Alaska barge service operation. They would be storing vessels, conducting ship repair, and storage. The company had submitted a plan for water and sanitary disposal and a plan for compliance of in') City of Seward, Alaska November 23, 2009 City Council Minutes Volume 3$ PaRe environmental hazardous waste laws and stormwater permitting. They would be stacking convex shipping containers within an enclosed facility. Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. Tim McDonald wanted clarification of the location of the property and wanted to know how the barges would be lifted out. He felt the lease rate was under market value. Oates stated the boats would he lifted out of the water by the 250-tontr'avelift Harbormaster Kari Anderson clarified the lease rate was low because the company would only be using about 40% of the land because of soil farming that would continue for another year. After all contaminates are removed, Alaska Logistics would pay the full market. value of $13,600 annually for this site. Public hearing was closed. The rules were suspended by unanimous consent to allow another comment about containment by Tim McDonald. Motion Passed - Unanimous NEW BUSINESS Resolution 2009-104. Adopting The Water Enterprise Fund Budget For Calendar Year 2010 And 2011. Motion (Keil/Amberg) Approve Resolution 2009-104 Oates reminded; council the tariffs with changes had already been passed and approved by the city council at a prior meeting for Wate . and Wastewater. Amendment Member Keil;wanted clarification on the increased personnel costs. 1;ardars6n) Put the personnel costs for the Project Manager position back into the General Fund Amendment Failed 6-1 Main Motion Passed Yes: Keil No: Bardarson, Valdatta, Smith, Shafer, Amberg, Mayor Dunham Unanimous �n� City of Seward Alaska City Council Minutes November 23, 2009 Volume 38, Page Council recessed at 8:33 p.m. Council resumed 8:40 p.m. Resolution 2009-105, Adopting The Wastewater Enterprise Fund Budget For Calendar Year 2010 And 2011. Motion (Bardarson/Keil) Approve Resolution 2009-105 Motion Passed Unanimous Resolution 2009-108, Adopting The Parking Enterprise Fund BudgetFor Calendar Year 2010 And 2011. Motion (Bardarson/Amberg) Approve Resolution 2009=108 Oates stated there were no increases in rates to this enterprise fund, only restored the rates that were reduced this past year because of the recession Amendment (Shafer/Keil) Go back to 2009 rates of $5 including parking passes Finance Director Kris Erchinger clarified that;,the daily rates were reduced from $10 to $5 because of the recession, but the rates for the parking passes remained the same. If these levels were kept, the city would lose $80,000 revenue in 2010, after some Phase I sealing, patching, striping and the payment of two pay statioris. If that rate decrease was continued into 2011, that would put the account in the negative., If 'passes were cut in half, that would result in a depletion in 2010 of $40,000 with no money for capital replacement and maintenance list. Shafer wanted to reduce the 2010 rates back to 2009 rates of $5 per day and reevaluate this in 2011. The clerk. clarified the motion to be: ' For FY2010 continue the daily parking at the reduced 2009 amount, and keep the parking passes the same. Parks & Recreation -Director Karin Sturdy further clarified that this was a daily parking rate of $5 a day and the parking passes would stay the same rate at they were. Amendment Passed 4-3 Main Motion Passed as Amended 5-2 Yes: Amberg, Shafer, Bardarson, Keil No: Valdatta, Smith, Dunham Yes: Smith, Amberg, Bardarson, Keil, Shafer No: Valdatta, Dunham ,ina City of Seward, Alaska November 23, 2009 City Council Minutes Volume 38, Page Resolution 2009-111 Adopting The Motor Pool Internal Service Fund Budget For Calendar Year 2010 And 2011. Motion (Keil/Shafer) Approve Resolution 2009-111 Oates requested the Motor Pool budget be approved. He reiterated that all purchases would still have to come before the council before purchase. Motion Passed Unanimous Resolution 2009-113 Adopting The City General Fund Operating Budget For Calendar Year 2010 And 2011 And Approving The Mill Rate For 2010 Motion (Bardarson/Amberg) Approve Resolution 2609-113 Motion Passed 6-1 Yes: Shafer, Bardarson, Valdatta, Smith, Amber"g, Dunham No•Keil Resolution 2009-129, In Support Of Home -Porting The Alaska Region Research Vessel In Seward And Designating The City Of Seward As The Northern Maritime Research Capital Of Alaska And Requesting The State Of Alaska To Endorse This Designation Motion (Bardarson/Shafer) Approve' Resolution 2009-129 Oates described this resolution as a strong signal of support to homeport the ARRV in Seward. This vessel is being built by the National Science Foundation and operated by the University of Alaska Fairbanks. This would bring the focus of arctic and national research to Seward. He recommended- approval.' Amendment (Bardarson/Snuth) , At the end of the 12`s whereas, add; "and has hosted the National Ocean Sciences Bowl competition in 2008." Amendment Passed Unanimous Main Motion Passed as Amended Unanimous Resolution 2009-132- Authorizing The City Manager To Select And Purchase Outright, Vehicles And Equipment In An Aggregate Amount Not To Exceed $286,000 In 2010 And $130,000 In 2011, And To Purchase Heavy Equipment With Accessories, Subject To Obtaining Financing, In An Amount Not To Exceed $380,000 In 2010, From The Motor Pool Internal Service Fund. Motion (Bardarson, Smith) Approve Resolution 2009-132 �n� City of Seward, Alaska City Council Minutes November 23, 2009 Volume 38, Page Oates stated considerable work had been done on the motor pool fleet replacement list within the last two years and many vehicles were taken off the list. A study of the city's motor pool fleet was commissioned to determine if contributions were sufficient to meet the goal of forward funding of the replacement of city fleet and equipment. The motor pool replacement plan was the result which lists all vehicles on the city fleet and prioritized those items when replacement should occur. The items on this resolution were recommended for replacement these years from the Bird Efficiency Study. Oates felt these vehicles were needed now because they were critical equipment and postponing would just compound the problem of backload down the road. He was pleased the city had such a valid and systematic replacement schedule in place and needed the flexibility for purchasing. Public Works Director W.C. Casey addressed concerns from the council and stated his concerns with emergency responses and safety for his working crew:. -Much discussion between staff and council ensued. Motion Passed Yes: Bardarson, Shafer, Valdatta, Smith, Dunham' No: Keil, Amberg Motion (Bardarson/Amberg) Cancel the December 28, 2009 regular city council meeting. Motion Passed Unanimous INFORMATIONAL ITEMS AND REPORTS (No action required The Providence Financials. for September 2009 were discussed. COUNCIL COMMENTS Keitthought the budget process had been a thorough one this year and she brought up the question contracting roads and, streets after conducting some research. Of 42 miles of road, SewarB on, budget indicated tl city spent $23,000 per mile on roads. Keil still believed it maybe cost effective to contract in the future for roads and lawn mowing of cemetery and parks. She did not find it was a comfortable position to be spending more money than what was being brought in. Keil also mentioned that she was proud to be at AML with the Mayor and be presented the award for "Just a darn good idea" Bardarson thanked the staff and the public for their work and input into the budget process, and also thanked Christy Terry and Nanci Richey for stepping in during the City Clerk's absence. Valdatta wished everyone a Happy Thanksgiving and mentioned the free meals that would be offered through the Senior Center and the Legion through the holidays. ,3nFi City of Seward, Alaska November 23, 2009 City Council Minutes Volume ! L e Smith wished everyone a Happy Thanksgiving and thanked the staff for the budget process. He knew it was painful, and he was concerned about next year, so hoped some of their fiures and forecasts would be close. g Shafer also wished everyone a nice Thanksgiving and realized this was a painful budget process because of the uncertainty for next year. Even though she was opposed at first of the mass purchase of vehicles, she knows of all the emergency situations those dozers were used in and did remember paying for the one that was not the city's when it was destroyed. Dunham wished all a Happy Thanksgiving and urged people to remember those less fortunate. He sent his congratulations to the new Chamber of Commetee.Board of Directors and was called from AT&T who stated after a few hiccups, they hoped to have the tower in operation by the end of December. He thanked and appreciated the clerk's office for the new packet format and the individual pictures on the front. He thanked Council Member Keilfor her help and comments at the AML conference. His thoughts went out to Jim Lewis who had a procedure to remove a blood clot in his leg, and City Clerk Jean Lewis, and hoped for a speedy recovery. CITIZENS' COMMENTS Tim McDonald thanked the administration for their budget, process, but felt 74% of the people now days were unhappy with their state and local government. He said the council's constituency felt alienated and he would always bring the positive answers with the negatives to balance things out. McDonald stated SMIC had shown:no revenue for the past 20 years, and was not happy with council entering into another lease. He accused that all negotiations were done in secret and behind closed doors. He continued to speak about the volunteer city council not representing people well, the flawed system, their multiple multi -million dollar mistakes, how all other boards in the city were professional but this one, and then he proposed that a different form of government system was needed. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS Yaldatta had his own thoughts on government systems but would not argue it here. Keil noted there were some points well taken, but defended the people on this city council as an experienced group that were smart, professional and competent. She assured nothing had been done behind closed doors by this council or for her own benefit, as insinuated. Dunham had listened to this a lot lately, and responded that SMIC had an interesting history. He agreed there had been differences of opinion with the lease and whether to enter into a new lease. Although the SMIC area may had been a hole where a lot of money had went into, the operator of Seward Ships Drydock was not at fault for that, and had put more money back into this community than most businesses excluding Harbor Enterprises. Dunham iterated many more businesses started up from this owner who started with a beat up welding truck in a quonset but and defended this business and the decisions made. He also wanted it known that looking into a new form of government had been researched before, and this form still seemed to be the best. City of Seward, Alaska City Council Minutes November 23, 2009 Volume 38, Page ADJOURNMENT The meeting was adjourned at 10:11 p.m. Jean Lewis, CMC City Clerk (City Sea]) 'Ansq City of Seward, Alaska November 24, 2009 City Council Minutes Volume 38, Page CALL TO ORDER The November 24, 2009 special meeting of the Seward City Council was called to order at 6:00 p.m. by Mayor Willard E. Dunham. OPENING CEREMONY Council Member Tom Smith led the pledge of allegiance to the flag. ROLL CALL There were present: Linda Amberg„ Willard F. Dunham, presiding and Marianna Keil Bob Valdatta Tom Smith Betsy Kellar Jean Bardarson comprising a quorum of the Council; and Phillip Oates, City Manager Nanci Richey, Administrative Assistant and in attendance from Chugach Electric was; Rebecca Logan, Board Chair Lee Thibert, Senior VP of Strategic Affairs and Corporate Planning Mark Fouts, Director of Corporate, Planning ABSENT — None CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING - None APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson, Keil) Approval of Agenda Motion Passed NEW BUSINESS Unanimous Resolution 2009-133, Resolution Of The City Council Of The City Of Seward, Alaska, In Support Of The Greater Railbelt Energy And Transmission Corporation. Motion (Bardarson, Keil) Approve Resolution 2009-133 onn City of Seward, Alaska City Council Minutes November 24, 2009 Volume 38, Page City Manager Phillip Oates spoke in support of The Greater Railbelt Energy and Transmission Corporation (GRETC) resolution. He felt GRETC legislation would secure a stable and affordable energy future for the railbelt, modeled after the Bradley Lake public/private partnership model to meet future projects and needs. Oates recommended council approve participation of the Bradley Lake model of GRETC which would be operated by the utilities themselves. Rebecca Logan, Board Chair spoke, and a report was given by Mark Fouts, Director of Corporate Planning at Chugach Electric. Motion Passed Unanimous COUNCIL COMMENTS The City Council thanked everyone from Chugach for coming. CITIZENS' COMMENTS - None COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS'COMMENTS - None ADJOURNMENT The meeting was adjourned at 7:00 p.m. Jean Lewis, CMC City Clerk (City Seal) Willard E. Dunham Mayor .- AGENDA STATEMENT Meeting Date: December 14, 2009 From: Johanna Dollerhide, Assistant City Clerk Agenda Item: Non -objection to the Liquor License Renewal for Thorn's Showcase Lounge BACKGROUND & JUSTIFICATION: The City Council has an opportunity to object to the request for a liquor license renewal for Thorn's Showcase Lounge. The City of Seward Police Department, Fire Department, Utilities Department and the Kenai Peninsula Borough Finance Department have no objections to the liquor license renewal for this business. FISCAL NOTE: In the event the City of Seward chooses to file a protest for the above liquor license renewal, then under Alaska Statutes the City of Seward will be required to assist in, or undertake the defense of its protest. RECOMMENDATION: Non -objection to the Beverage Dispensary Liquor License renewal for Thorn's Showcase Lounge. 44.1 MEMORANDUM Date: December 14, 2009 To: Michelle Endresen, Finance — Leases Kari Atwood, Finance — Public Utilities Chief Tom Clemons — Police Department Chief David Squires — Fire Department From: Johanna Dollerhide, Assistant City Clerk,. Subj: Verifying Compliance for the renewal of liquor license for Thorn's Showcase Lounge. The following business has applied for renewal of liquor license. Please review the following business for compliance with all utilities, lease payments, and assessments. Thank you! Name Department Status Initials Thorn's Showcase Lounge Beverage Dispensary License #1130 Finance/Leases i- ti Finance/Utilities Ct K Police Chief 0 K` Fire Chief 312 l KENAI PENINSULA BOROUGH 144 North Binkley Street o Soldotna, Alaska 99669-7520 PHONE: (907) 714-2160 o FAX: (907) 714-2388 Toll -free within the Borough: 1-800-478-4441, Ext 2160 EMAIL: assemblyclerk@borough.kenai.ak.us r November 13, 2009 Ms. Dawn Holland -Williams Records & Licensing Supervisor Alcoholic Beverage Control Board 5848 E. Tudor Road Anchorage, AK 99507-1286 Re: Application for Renewal of Liquor License: #1130 Dear Ms. Williams: JOHNI BLANKENSHIP, CIVIC BOROUGH CLERK .� Please be advised that the Kenai Peninsula Borough has reviewed the following liquor license renewal application and has no objection to the continued operation of the liquor license for the establishment within the City of Seward, Alaska: Beverage Dispensary Thorn's Showcase Lounge #1 130 The Kenai Peninsula Borough Finance Department has reviewed its files and has raised no objection based on unpaid or delinquent taxes. Sincerely, 7ohni Blankenship CMC Borough Clerk c: Applicant City of Seward KPB Finance Department File '2 1 0 Page 1 of 3 Johanna Dollerhide From: Holland -Williams, Dawn R (DIPS) [dawn.holIand-williams@alaska.gov] Sent: Tuesday, November 10, 2009 11:07 AM To: Holland -Williams, Dawn R (DIPS); Kenai - Borough; SMorgan @borough. kenai.ak.us; Kenai; Johanna Dollerhide; Jean Lewis; Seldovia Subject: CORRECTED Liquor license renewal notification Follow Up Flag: Follow up Flag Status: Red KENAI Type: Beverage Dispensary - Tourism Lic#: 1859 Establishment: Uptown Motel/Louie's Owner: Shilling Alaska Inc. Location: 47 Spur View Dr Mailing address: 47 Spur View Dr Kenai AK 99611 Type: Beverage Dispensary — Tourism Duplicate Lic#: 2237 Establishment: Uptown Motel/Back Door Lounge Owner: Shilling Alaska Inc. Location: 47 Spur View Dr Mailing address: 47 Spur View Dr Kenai AK 99611 SELDOVIA Type: Package Store Lic#: 1019 Establishment: Seldovia Liquor Store Owner: Seldovia Native Association Inc. Location: 281 Main St Mailing address: PO Box L Seldovia AK 99663-0250 SEWARD Type: Beverage Dispensary Lic#: 1130 Establishment: Thorn's Showcase Lounge Owner: Thorn's Showcase Lounge LLC Location: 208 41h Ave Mailing address: PO Box 1261 Seward AK 99664 We have received application(s) for renewal of liquor license(s) listed licensees within your jurisdiction. You are being notified as required by AS O4.11.520. Additional information concerning ..r filing a "protest" by a local governing body under AS O4.11.480 is included. 04 A Page 2 of 3 "' A local governing body as defined under AS 04.21.080(11) may protest the approval of an application(s) pursuant to AS O4.11.480 by furnishing the board and the applicant with a clear and concise written statement of reasons in support of a protest within 60 days of receipt of this notice. If a protest is filed, the board will not approve the application unless it finds that the protest is "arbitrary, capricious and unreasonable". Instead, in accordance with AS 04.1 L510(b), the board will notify the applicant that the application is denied for reasons stated in the protest. The applicant is entitled to an informal conference with either the director or the board and, if not satisfied by the informal conference, is entitled to a formal hearing in accordance with AS 44.62330-44.62-630. IF THE APPLICANT REQUESTS A HEARING, THE LOCAL GOVERNING BODY MUST ASSIST IN OR UNDERTAKE THE DEFENSE OF ITS PROTEST. Under AS 04.11.420(a), the board may not issue a license or permit for premises in a municipality where a zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages, unless a variance of the regulation or ordinance has been approved. Under AS 04.11.420(b) municipalities must inform the board of zoning regulations or ordinances which prohibit the sale or consumption of alcoholic beverages. If a municipal zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages at the proposed premises and no variance of the regulation or ordinance has been approved, please notify us and provide a certified copy of the regulation or ordinance if you have not previously done so. Protest under AS O4.11.480 and the prohibition of sale or consumption of alcoholic beverages as required by zoning regulation or ordinance under AS 04.11.420(a) are two separate and distinct subjects. Please bear that in mind in responding to this notice. AS 04.21.010(d), if applicable, requires the municipality to provide written notice to the appropriate community council(s). If you wish to protest the application referenced above, please do so in the prescribed manner and within the prescribed time. Please show proof of service upon the applicant. For additional information please refer to 13 AAC 104.145, Local Governing Body Protest. Note: Applications applied for under AS 04.11.400(g), 13 AAC 104.335(a)(3), AS 04.11.090(e), and 13 AAC 104.660(e) must be approved by the governing body. iiiioi,Innn nAC 6:00pm cc Spc. Mtg. 16 1 7:00pm City Council 12.00pm P,FiCAB Work ' 9:OOam Social Security Meeting $Qs§ipn ",> Rep 6:30pm Historic Preservation Meeting 21 — 22i _ 231 12:00pr6Christmas Eve / Offices 06se 't1 Noon H 29 — - Ill rvanci rocney 1 12/10/2009 8:41 AM 11A 7:00pm City Council Meeting January 2010 February 2010 S M T W T F S S M T W T F S 3 4 '5 6 7 8 9 7 8 91011'1213 10 11 12 13 14 15 16 14 15'1617 18 19'20 17 18 19 20 21 22 23 " 21 22 23 24 2526 27 24' 25 26 27 28 29 30 28 31 dnesd Thursday - Friday F7 41 --- Sj ---- --- - — -- 7 - 7:30pm P&Z Meeting 12:00pm PACAB Meeting -- -- 131 _ --- 14 11:30am' Buff —181 _ 19 6:30pm PA Work"Sessfo2 12:OOpm �ACAB Work 6:30pm Historic Preservation Meeting 15!_26- -- 7:00pm City Council - Meeting i i i I 9:00am Social Security Rep Nand Richey 12/10/2009 8:41 AM