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HomeMy WebLinkAboutRes1994-192 . . . Sponsored by: Tones CITY OF SEWARD, ALASKA RESOLUTION NO. 94-192 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING THE SMALL BOAT HARBOR MANAGEMENT AGREEMENT WHEREAS, the Seward Small Boat Harbor is owned by the State of Alaska; and WHEREAS, the City of Seward operates the Small Boat Harbor under the terms of a management agreement between the city and the state; and WHEREAS, the current management agreement has expired; and and WHEREAS, the city and the state have negotiated a new management agreement; WHEREAS, numerous public hearings and other public meetings have been conducted to receive comments from harbor users and the general public regarding the proposed agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The Small Boat Harbor Management Agreement between the City of Seward and the state of Alaska, a copy of which is attached and incorporated herein by reference, is hereby APPROVED. Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 24th day of October, 1994. THE CITY OF SEWARD, ALASKA Jl(h~ l& QA~ Dave W. Crane, Mayor CITY OF SEWARD, ALASKA RESOLUTION NO. 94-192 AYES: NOES: ABSENT: ABSTAIN: Anderson, Crane, Darling, Deeter, King, O'Brien, Sieminski None None None ATTEST: APPROVED AS TO FORM: Wohlforth, Argetsinger, Johnson & Brecht, Attorneys for the city of Seward, Alaska -.?c.Lt-~~r:<7' ~ ~. ~_(~a_ ./ ~inda S. Murphy, CMC!AAE City Clerk ~f~ City Attorney (City Seal) . . . STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES SEWARD SMALL BOAT HARBOR DBH NO. 01067 BOA T HARBOR Agreement This J<;"'" day of ~c.h~ , 199'1, the STATE of Alaska, Department of Transportation and Public Facilities, hereinafter referred to as the "STATE". whose address is P.O. Box 196900, Anchorage, Alaska 99519-6900, and the City of Seward, hereinafter referred to as the "OPERATOR", whose address is P.O. Box 167, Seward. Alaska 99664, do enter into this agreement of _ pages, including exhibit and signature pages. RECITALS WHEREAS THE ST ATE has constructed and owns marine facilities (hereinafter referred to as "HARBOR") at Seward, Alaska, for the use and benefit of the public, the HARBOR being more particularly described in paragraph No.1; and WHEREAS, THE STATE desires to have the HARBOR managed. administered, maintained, and operated in a safe and efficient manner by a local entity; and WHEREAS. it is the STATE'S intent that the HARBOR become self-supporting through the generation of income by having user fees charged for use of the HARBOR; and WHEREAS. THE STATE recognizes the OPERATOR'S ongoing commitment to manage, administer. maintain, operate and charge for the use of the HARBOR; and WHEREAS. THE STATE acknowledges and appreciates the OPERATOR'S efforts to manage, administer and operate the HARBOR. NOW THEREFORE. in consideration of the tenus, conditions, and provisions of this agreement, the STATE and OPERATOR mutually agree as follows: 1. PREMISES. The OPERATOR agrees to manage, administer, maintain. and operate according to the tenus of this agreement, STATE owned marine facilities. referred to in this agreement as the "HARBOR", located at Seward, Alaska, in the Kenai Recording District. Third Judicial District, Alaska, more particularly described as follows: 1 All that property consisting of six approaches and steel gangways; one gridiron; one seaplane float; floats commonly known as A, B, C, D, E, F, G. H, J, K, L, S and X floats; one four lane boat ramp; walks; water and electrical systems associated with the existing floats; and, other marine facilities and associated water area located within the Seward Small Boat Harbor, as shown as shaded items on Exhibit "A", Sheet 1 of 1, dated July 14, 1994 attached and made a part of this agreement. 2. TERM. The term of this agreement is 10 years beginning November 1, 1994, to October 31, 2004. 3. OPERATION AS A PUBLIC FACILITY. OPERATOR agrees to administer, maintain, and operate the HARBOR as a public facility for the use and benefit of the public. OPERATOR further agrees to make all facilities and services at the HARBOR available to the public on fair and reasonable terms without discrimination, and to provide mooring space in the HARBOR to all who are in need of such space, subject to the physical limitations of the HARBOR. 3.1 The OPERATOR acknowledges that upland areas adjacent to the HARBOR are integral to the operation of a public harbor. Therefore, the OPERATOR agrees to provide the ST ATE with an opportunity to review and comment on any proposed OPERA TOR plan to develop or' have developed, the uplands adjacent to the HARBOR. 4. HARBOR CONDITION & REPORT. OPERATOR has examined and knows the condition and state of repair of the HARBOR. Operator further acknowledges that the STATE has made no representations concerning the HARBOR's condition and state of repair, and the STATE has not made any agreement or promise to alter, improve, adapt, repair or keep in repair the HARBOR unless it has been fully set forth in this agreement. 4.1 The STATE and OPERATOR agree to perform a joint inspection of the HARBOR within one year following the execution of this agreement. The current condition of the HARBOR will be set forth in a Harbor Condition Report. The report will establish a baseline of HARBOR conditions based upon the Corps of Engineer's "Inventory and Condition Report" dated October, 1992. The OPERATOR acknowledges receipt of a copy of the Corps of Engineer's report. 4.2 The Harbor Condition Report will be used by the OPERATOR to establish priorities for HARBOR repair and replacement projects. 5. GENERAL HARBOR OPERATIONS BY OPERATOR. The approaches, docks, and floats in the HARBOR will be considered extensions of public streets and sidewalks. 2 . The public will, except for safety and security considerations, enjoy an unrestricted right of access to all approaches, docks and floats in the HARBOR. 5.1 The OPERATOR acknowledges that the mooring spaces constructed in the HARBOR were designed for a specific boat length. However, OPERA TOR may allow vessels of a length that exceeds the design length of the mooring space in either reserved berthing or transient mooring. The OPERA TOR agrees to assume all responsibility for damage done to HARBOR components as a direct result of mooring vessels that exceed the design length of a berthing or moorage space. 5.2 The construction or installation in the HARBOR of vessel shelter buildings is prohibited, unless approved in writing by the ST ATE and OPERA TOR. 5.3 The OPERATOR must provide reasonable moorage space in the HARBOR to accommodate the needs of transient vessels. 5.4 The OPERATOR will provide precautionary and informational signing for the HARBOR as necessary for the convenience and safety of HARBOR users and the general public. 5.5 . 5.6 5.7 . The OPERATOR will not extend any special preference rights to local residents or to commercial vessels or pleasure vessels except as set out in 5.7. If the demand for reserved berthing space in the HARBOR exceeds the space available, the OPERATOR must establish a waiting list based on vessel size. for space applicants. Once an applicant becomes notified of an eligible berthing space, that applicant must occupy the available berth within six (6) months with an owned (at least fifty-one [51 %] percent) or leased vessel or. applicant must present sufficient documentation that he is obtaining a vessel that he will have fifty-one (51 %) percent ownership. If the applicant does not obtain a vessel in that six month period or declines the offer of the berth, the applicants name will be placed at the bottom of the wait list. After the OPERA TOR begins to maintain a waiting list, the OPERA TOR may, with the State's permission, limit the number of reserved berthing spaces that anyone boat owner may have in the HARBOR. The OPERATOR is authorized to charge a fair and a reasonable fee for an applicant to stay on the waiting list. Vessels owned or operated by any federal, state, or other government agency will use the HARBOR under the same conditions and at the same moorage rates as those specified for the general public, except that the U. S. Coast Guard, fIre fIghting vessels or other similar vessels used exclusively for the health and welfare of the boating public may be given preference berthing or moorage in the HARBOR. 3 5.8 The OPERATOR will keep the HARBOR free of abandoned, derelict and unseaworthy vessels. The OPERATOR through their routine inspections will identify and document abandoned and/or derelict vessels. Any and all costs incurred as a result of OPERATOR'S compliance with this provision are considered legitimate HARBOR expenditures that may be paid for out of HARBOR revenue. (a) To the extent possible, the ST ATE will support and assist, OPERATOR'S efforts and actions to keep the HARBOR free of abandoned, derelict, and unseaworthy vessels. 5.9 The OPERATOR will provide adequate police and fire protection. 5.10 The OPERATOR will provide and maintain vehicle parking for HARBOR users. The OPERATOR will sign, mark, and provide handicap parking in the vehicle parking lot(s). 5.11 The OPERATOR will provide staff coverage of the HARBOR seven days a week, every day of the calendar year. Staff coverage will be a minimum of sixteen (16) hours per day during periods of peak season, and a minimum of ten (10) hours per day during periods of off season. (a) For purposes of this agreement, peak season will be from May 1st, through September 30th. Off season will be from October 1 st through April 30th. (b) Staff coverage will consist of harbor personnel patrolling the HARBOR and staffmg of the HARBOR office during regular business hours. 5.12 The OPERA TOR may submit to the STATE a request to change the hours of staff coverage for the HARBOR. The OPERA TOR must justify its request to change the hours of coverage. Such request must be submitted to the STATE for review and consideration at least sixty (60) days before the anticipated change is to be effective. (a) The OPERATOR will notify the public of its intent to change the hours of HARBOR staff coverage. At a minimum, this notice will be published in a Seward, Anchorage, and Kenai Peninsula newspaper(s) of general circulation to solicit comment from the general public. The notice must be published at least once each week for three consecutive weeks. 4 . . . 5.13 The OPERATOR will increase the hours of staff coverage in the HARBOR as set forth in this provision as is reasonably necessary during holidays and special events. 6. MAINTENANCE AND REPAIR BY OPERATOR. The OPERATOR agrees to perform all routine and preventative maintenance and repairs that are necessary to maintain the HARBOR in a good state of repair and condition throughout the term of this agreement. This includes those items needing repair that are addressed in the HARBOR Existing Condition Report. All routine and preventative maintenance and repair of the HARBOR will be performed using HARBOR revenue. 6.1 Routine and preventative maintenance and repair of the HARBOR will include but are not limited to: (a) Maintenance of floats, approaches, docks, pilings, and grids. (b) Repair or replacement of worn or damaged decking. (c) Replacement of damaged floatation material. (d) Maintenance and repair of electrical, lighting, water and other utility systems. (e) Replacement of eroded bank protection or fill material at launching ramps, approaches, and other similar structures. (t) Repair or replacement of damaged or worn transition plates, hinges, float connectors, pile guides, and similar hardware. (g) Snow removal of approaches, floats and ramps. (h) Provide for waste collection and disposal. pursuant to Maritime Pollution Regulations (Marpol) and garbage pick-up. (i) Repair of any portion of the HARBOR that is damaged by the OPERATOR or the OPERATOR's employees, officers, agents, or contractors. (j) Any other maintenance or repair action of a routine or preventative nature which the STATE determines to be necessary to preserve the HARBOR in good condition. 6.2 The OPERATOR will repair or replace major components of the HARBOR for which the useful life, as will be determined by the Harbor Condition Report, 5 has expired, pursuant to paragraph 12. "Major components" include such items as float systems, docks, approaches, grids, pilings and ramps. (a) The OPERATOR may propose to the ST ATE other components or facilities for consideration to be replaced that are not addressed on the Harbor Condition Report. The STATE will review and either approve or disapprove the OPERATOR's request. If the STATE denies the OPERATOR's request or determines that the item is not a priority for repair or replacement, it will document its reasons in writing to the OPERA TOR. 6.3 The OPERATOR will keep written records of maintenance and repairs performed in the HARBOR and retain the records on file through the term of this agreement. The STATE may inspect the OPERATOR's maintenance and repair records at any time during regular business hours. 6.4 The OPERATOR agrees to keep the HARBOR in a clean and orderly condition throughout the term of this agreement. This will include preventing the accumulation of trash and debris in the HARBOR, prohibiting the use of floats and approaches for the storage of nets, fishing gear, skiffs, barrels, personal use storage boxes, and similar items, and by taking any other actions necessary to keep the HARBOR clean and orderly. The OPERA TOR agrees to take adequate measures to keep the approaches, floats, docks, ramps and other facilities clear of fish gurry, slime, oil or other substances that may cause damage or injury to the facility or its users. 6.5 The OPERATOR further agrees to provide adequate and sufficient toilet facilities, waste disposal receptacles and regular garbage pickup as is needed to facilitate the public's use of the facilities. 7. EMERGENCY HARBOR REPAIR BY STATE. Subject to the appropriation of sufficient funds, STATE will repair or replace facilities in the HARBOR that are damaged or destroyed by storm, tsunami. landslide, avalanche, earthquake, other natural disasters, acts of war, or other catastrophic events which are beyond the OPERATOR's control. As soon as possible after such a damaging or destructive event, the OPERATOR will inform the STATE of the kind and extent of the damage to the HARBOR, will take all reasonable measures to prevent additional damage and will cooperate with the STATE in making temporary repairs. 8. HARBOR INSPECTIONS. The OPERATOR agrees to regularly schedule and conduct inspections of the HARBOR and its components, and to promptly schedule and perform needed maintenance or repairs. The OPERATOR will submit to the STATE, within 30 days following the anniversary date of this agreement, a status report describing the general condition of the HARBOR, major maintenance or repair 6 . . . projects completed during the year, and the OPERATOR's assessment of needed HARBOR repairs and improvements. 8.1 The STATE and the OPERATOR may, on an annual basis. schedule and conduct a joint inspection of the HARBOR for the purpose of determining the condition of the HARBOR and the OPERATOR's compliance with the maintenance and repair requirements of this agreement. Additional joint inspections may be conducted if requested by either party . 8.2 The STATE will prepare a written report following each joint inspection of the HARBOR. Each report will outline the joint fmdings, needed and preventative maintenance, repair or replacement of items, and the time period(s) within which the needed maintenance, repairs or replacement of items must be completed. (a) The STATE may, upon notice to the OPERATOR, perform the maintenance or repair to facilities or components that are in need to prevent imminent failure of the facility or component, or if there is a hazard to the safety and well being of the general public, if the OPERA TOR fails to perform such needed maintenance or repair within the time period established in the joint inspection report. The time period for performing the needed maintenance or repair will be based upon the need of the item needing repair, budgets, seasonal weather conditions and the safety and well being of the general public. Any cost incurred by the STATE in performing such maintenance or repair will be charged to the HARBOR. 8.3 Items that are found on the Harbor Conditions Report, and are eligible for replacement under the "Major Maintenance, Repair or Replacement Fund" will be replaced as provided in Section 12. 8.4 The OPERATOR will have the right to close down or limit use of any component or facility in the HARBOR that is considered unsafe because the component or facility needs repair or replacement. The OPERA TOR will make every diligent effort to repair or replace the component or facility within five (5) working days. 9. RESERVED BERTHING SPACE. The OPERATOR will assign all reserved vessel berthing space on the basis of a written permit prepared by the OPERA TOR and signed by the OPERATOR and the vessel owner/operator. The form and text of the permit will be subject to the OPERATOR's discretion, but must include provisions to address the following: (a) Preferential use without exclusive use. 7 (b) Non-transferability. (c) Requirement for payment of fees. (d) Termination. (e) Transient use. (t) Right to relocate Permittee's vessel for cause. (g) A requirement for the permittee to indemnify, defend and hold both the STATE and the OPERATOR harmless from any liability, action, claim. suit, loss, property damage, environmental damage, or personal injury. including any award of costs and attorney's fees, which results or arises from any act of commission or omission by the permittee, his agents, employees, officers, or guests in connection with their use or occupancy of the HARBOR. (h) A requirement that the permittee's vessel be maintained in a seaworthy condition, capable of navigating under its own power. 10. HARBOR PERSONNEL. At no expense to the STATE, the OPERATOR agrees to employ sufficiently trained and experienced HARBOR staff as is necessary to properly administer, operate, and maintain the HARBOR under this agreement. Specifically, the OPERATOR will appoint a Harbor Master, bonded by the OPERATOR. to supervise and be responsible for the day-to-day administration, maintenance. and operation of the HARBOR and authorized by the OPERATOR to enforce HARBOR rules. The OPERATOR will contract with or employ an accountant, bonded by the OPERATOR, to manage the HARBOR's financial matters. and to prepare the HARBOR's monthly and year end financial statements. 11. HARBOR REVENUE. For the purpose of this agreement, HARBOR Revenue includes all income from berth rental fees, transient moorage fees, grid fees, launching ramp fees, berth waiting list registration fees, permit fees, fuel flowage fees, and all other service and user fees charged by the OPERATOR for use of the HARBOR and its facilities. HARBOR Revenue additionally includes any interest income from any HARBOR Revenue accounts and any proceeds from the sale of equipment purchased with HARBOR Revenue. 11.1 The OPERATOR's use of HARBOR Revenue will be strictly limited to expenditures for the maintenance, repair, operation, and administration of the HARBOR including deposits into the Major Maintenance, Repair and Replacement Fund, the replacement of HARBOR components, acquisition or replacement of HARBOR equipment, the construction of capital improvements 8 . to improve the HARBOR. and debt service for HARBOR capital improvements. Use by the OPERATOR of HARBOR Revenue for any other purpose is prohibited. 11.2 The OPERATOR will establish HARBOR user fee rates. All fees charged by the OPERATOR will be fair. reasonable, and non-discriminatory. Such rates will be set to an amount reasonably necessary to cover: (a) The OPERATOR's cost of HARBOR administration, maintenance. repairs, and operation, (b) The OPERATOR's cost of services provided in the HARP0R, (c) The OPERATOR's cost of acquisition and replacement of HARBOR related equipment and facilities, (d) Annual contribution to the HARBOR'S Major Maintenance, Repair and Replacement Fund. Such fund will be established and maintained as provided in provision 12. . 11. 3 The OPERATOR will not hold the ST ATE responsible or liable for any fmanciallosses it may incur as a result of its administration, maintenance, or operation of the HARBOR. 11.4 The STATE and the OPERATOR acknowledge that the OPERATOR incurs indirect costs in the operation and administration of the STATE harbor facilities for services provided to the HARBOR. The STATE acknowledges that the OPERATOR charges the HARBOR a Payment In Lieu of Taxes (PILT) and an administrative fee to fund indirect costs. The OPERATOR is authorized a maximum of twelve (12) percent of the total amount of HARBOR Revenue to offset OPERATOR'S indirect costs for police coverage, fire protection, and administration of the HARBOR. (a) The PILT will be assessed against the HARBOR at no greater than 8.0% of the actual operating revenues and not include amortization counted as revenue. (b) The administrative fee assessed the HARBOR will be no greater than 4.0% of actual operating revenues. (c) The 12 percent maximum limit on the combined PILT and administrative fee may be raised or lowered based on cost allocation studies of municipal administrative costs or other fmancial or administrative reports prepared by the OPERATOR and approved by . 9 the STATE. The STATE's final approval of any changes will be based on an analysis of such reports and on an assessment of the PIL T and Administrative charges levied at other harbors. Such review of PIL T and Administrative fees will occur at intervals of no less than three years. 12. MAJOR MAINTENANCE. REPAIR AND REPLACEMENT FUND. The OPERA TOR will establish a Major Maintenance, Repair and Replacement Fund (MMRRF). The purpose of this account is to allow the OPERATOR ready access to funds to do major maintenance, repair and/or replacement of existing HARBOR components or facilities. 12.1 Each fiscal year, within one hundred twenty days of the last day of OPERATOR'S fiscal year, the OPERATOR will, at a minimum, deposit in the MMRRF, for use as described, funds from actual HARBOR revenue according to the following schedule: Deposit Years Annual Amount 1-5 6-10 $250,000.00 $300,000.00 The OPERATOR, with written approval from the STATE, may deposit other harbor enterprise income into the MMRRF to supplement the required minimum deposit from the HARBOR revenue. The OPERA TOR must clearly segregate HARBOR revenue from other revenue deposits and track expenditures. (a) Upon written approval from the STATE, the OPERATOR may deposit an amount less than the required amount in the MMRRF for that payment year. (b) The MMRRF will be re-evaluated by the OPERATOR and the STATE annually, throughout the term of this agreement. This evaluation will be used to adjust the accumulation rate of annual deposits to the MMRRF. (c) Upon approval by the STATE, the OPERATOR may develop a budget to address a specified MMRRF project or projects in the HARBOR. All costs must be documented by a separate project account and submitted to the STATE for review upon completion of the approved 10 . 12.2 . 12.3 . project. Upon verification of project costs, the STATE will allow a credit in like dollar amount against the required annual deposit to the MMRRF. The OPERA TOR may use funds from the MMRRF, upon written approval from the STATE, for the following purposes only: (a) Major maintenance and repair of HARBOR components. For the purpose of this agreement, "Major Maintenance and Repair" means, the maintenance or repair of any component within the HARBOR whereby the cost to repair such component is more than 25 %, but less than 51 % of the replacement cost of such component, and the useful life of the repaired component will be at least ten years. (b) Replacement of existing HARBOR components that are lost, damaged, or destroyed as a result of a catastrophic event, third party actions, or have exceeded their useful life and are worn out. Replacement is appropriate when the cost of repair of a single component exceeds 51 % of the replacement costs of such component, or if the expected useful life of the entire component after repair is less than ten years. The OPERATOR may replace the component with funds from the MMRRF. (c) The OPERATOR may use funds from the MMRRF for matching funds for improving the HARBOR. For the purpose of this agreement, improving the HARBOR means any development of the HARBOR by constructing new components or facilities. (d) The OPERATOR may use funds from the MMRRF to pay the debt service on bonds issued for the purpose of accelerating the major maintenance, repair or replacement of HARBOR components. Subject to: (i) all local, State and federal laws and regulations governing the sale of bonds by a municipal government; and, (ii) STATE approval of the proposed projects to be funded by the bonds. Funds used from the MMRRF for repair or replacement of catastrophic event damage will be reimbursed by the STATE to the MMRRF subject to paragraph 40. For the purpose of this agreement, catastrophic event damage is damage done to the facilities of the HARBOR by an act of nature. 11 12.4 The OPERATOR may, upon written approval from the STATE. invest the funds deposited in the MMRRF if the MMRRF holds a substantial amount of cash that is not needed for immediate disbursement and that, under prudent cash practices could be deposited or invested in order to earn a higher rate of return prior to being needed, the OPERA TOR may invest such amount. Such investment will be managed in accordance with acceptable standards of prudent investing so that the deposited money earns a guaranteed yield at a minimal risk prior to disbursement. 12.5 Interest earned by the MMRRF will be treated as HARBOR Revenue to be expended solely on the HARBOR. 12.6 The OPERATOR acknowledges and agrees that deposits into the MMRRF are to be used as provided within three years of the date the deposit is made into the MMRRF. However, if OPERATOR encumbers or otherwise obligates the funds for a Major Maintenance, Repair or Replacement project and construction will not be started within that three years, the ST ATE may, by written authorization, allow the funds to be carried over to the next year. If the funds are not used within the allotted period, OPERA TOR may be required to forfeit the funds to the STATE. 12.7 If this agreement is terminated by the STATE's conveyance of the HARBOR to the OPERATOR pursuant to Paragraph No. 22, the balance of HARBOR revenue and the MMRRF will vest in the OPERA TOR to be used for HARBOR related purposes only. 13. ACCOUNTING OF HARBOR REVENUE AND EXPENDITURES. The OPERATOR will segregate revenue and expenditures within the Harbor Enterprise fund to show the separation of accounts between the HARBOR and OPERATOR owned facilities. The OPERATOR will keep accurate books and records of all revenue and expenditures related to HARBOR related expenditures which are paid from sources other than harbor revenue and all deposits to, and expenditures from. MMRRF accounts. The records will show the OPERATOR's revenue and expenditures on a monthly basis. The OPERATOR will keep all records in a manner consistent with generally accepted accounting principles. 13.1 The STATE will have the right to inspect and audit the OPERATOR's records and supporting data upon request at any time during normal business hours. STATE audits, may be funded with HARBOR revenue. 14. ANNUAL REPORTS. ..~<;'Q~~l1'\.l~..)Vj,ll~'12.~J the following reports to the , STATE on or before tlie RlRetietB (~) day followmg the close of the OPERATOR s annual fiscal year. Each report must be certified by an authorized officer of the OPERATOR. 12 , . . . 14.1 A financial report containing an itemized accounting of revenue, expenditure. and investment activity related to the STATE owned harbor facilities including the following: (a) All HARBOR revenue generated on a monthly and yearly basis. (b) All HARBOR related expenditures paid with HARBOR revenue on a monthly and yearly basis. (c) All HARBOR related expenditures, if any, which the OPERATOR paid with funds derived from sources other than HARBOR revenue. (d) All deposits to, expenditures from, and year end balance(s) of. any saving account(s) maintained by the OPERA TOR for the HARBOR. (e) Listing of all investments made from the MMRRF, the current rate of rerum, and amount of funds invested into each investment. 14.2 A maintenance report containing an itemized listing of repairs perfonned and repairs needed. 14.3 The OPERATOR will retain the HARBOR fmancia1 reports for a period consistent with the laws of the State of Alaska. 15. ASSIGNMENT. SUBLEASING. Assigrunent by the OPERATOR of this agreement or any of the OPERATOR's rights or obligations hereunder is prohibited unless approved in writing by the ST ATE. 15.1 The OPERATOR may not sublease or rent any portion of the HARBOR for any of the following purposes: (a) Non-marine purposes of any kind. (b) Any HARBOR related commercial business enterprises excluding berth rentals for commercial vessels, charter boats, tour vessels, freight and towing vessels, subject to OPERATOR's rules and regulations. 15.2 Any assigrunent or sublease executed by the OPERATOR in violation of 15.1 (a) and (b) of this paragraph will be invalid and of no force or effect. 16. SUBCONTRACTING. Upon prior written approval by the STATE, the OPERATOR may enter into subcontracts with other government entities or private companies for the perfonnance of HARBOR related operations, maintenance, repair, or construction; 13 provided that the OPERATOR will remain responsible to the STATE for the performance of all of the OPERATOR's obligations under this agreement. 17. CONSTRUCTION BY OPERATOR. The OPERATOR must inform the STATE of any proposed construction projects in the HARBOR and the STATE will notify the OPERATOR of the need for a design review and provide an estimated cost of the review prior to constructing permanent improvements in the HARBOR. These projects include floats, docks, buildings, utility systems, breakwaters or other related harbor facility. The OPERATOR must submit detailed plans and specifications prepared by a professional engineer registered in Alaska to the STATE and obtain the STATE's written approval. 17.1 The STATE will review and either approve or disapprove of OPERATOR's plans within thirty (30) days of the STATE's receipt of the plans. 17.2 The STATE may assess the OPERATOR for the design plan review of proposed major HARBOR construction projects. The fee will be for actual costs but will not exceed $2,500.00 per review. This fee will be subject to review and adjustment on a per project basis. The OPERA TOR'S method of payment will be: (a) If the STATE provides grant funds for the construction project, the STATE will withhold the fee for the project under review, or (b) the OPERATOR may pay the STATE from sources of HARBOR revenue. Such payment will be rendered upon the STATE's final approval of the construction plan review. 17.3 Within sixty (60) days following the completion by the OPERA TOR of any improvements in the HARBOR, the OPERA TOR will submit as-built drawings to the STATE which accurately depict the location, dimensions, and construction details of the improvements. 18. CONSTRUCTION BY THE STATE. The STATE, together with its agents and contractors, will have the right at all times to enter the HARBOR for the purpose of constructing improvements. The STATE will submit to OPERATOR detailed construction plans. OPERATOR will have thirty (30) days to review and submit comment to the STATE. The STATE will coordinate such improvement construction projects with the OPERATOR. 19. SUBJECT TO LAWS. This agreement is subject to all of the provisions and requirements of the laws and regulations of the State of Alaska relating to STATE owned boat harbors. 14 . . . 20. 19.1 The OPERATOR, its agents, subcontractors, and sublessee's will conduct all operations of the HARBOR in compliance with all federal. state, and local laws, ordinances, rules, and regulations now or hereafter in force, which may be applicable to public boat harbor operations. 19.2 The OPERATOR agrees to comply with all federal and state environmental laws applicable to water and land pollution/contamination, and the handling and storage of fuel or other hazardous materials in the HARBOR as may now or may become subsequently applicable. 19.3 The OPERATOR agrees to comply with the federal American With Disabilities Act (ADA) of 1990, 42 USC 12101,28 CFR Part 35, as it pertains to the management and operations of public boat harbors. 19.4 The STATE reserves the right to modify this agreement to meet the revised requirements of federal. state, or international laws, rules, regulations or treaties as pertains to the operation and administration of the HARBOR. 19.5 The OPERATOR must obtain all necessary permits and pay all assessed fees, charges, or fmes lawfully imposed. HARBOR ORDINANCES AND REGULATIONS. The OPERATOR will promulgate ordinances, rules or regulations as necessary to provide for the safe and orderly operation of the HARBOR. All such ordinances, rules or regulations must be consistent with the terms of this agreement, and with federal and state laws applicable to the operation of public boat harbors. The ordinances, rules and regulations must include, but may not be limited to, the following: (a) A prohibition against use of docks, floats or berths in the HARBOR by abandoned, derelict or unseaworthy vessels and procedures for removal of such vessels from the HARBOR. (b) Procedures for the assignment and use of reserved vessel berthing spaces in the HARBOR. (c) Procedures for the administration of waiting list(s) for reserved vessel berthing spaces. (d) Rules for the use of the HARBOR by vessel operators and other members of the public, including rules for the mooring of vessels. (e) Procedures for charging and collecting HARBOR user fees. 15 (t) Procedures for use of the HARBOR for commercial enterprises that are consistent with normal HARBOR functions. (g) Procedures for administrative appeal by parties aggrieved by the OPERATOR's HARBOR decisions. The appeal process must conform to the minimum requirements of due process and must be conducted on the record. 21. RENEWAL. At the expiration of the initial term of this agreement, if the OPERATOR desires a renewal, it will, within ninety (90) days before the expiration of this agreement, make application in writing for a renewal. Such application will operate to extend the terms of this agreement until such time as STATE gives written notice to OPERA TOR that: (a) The request for renewal has been granted and appropriate renewal documents have been executed on behalf of the STATE and the OPERATOR; or, (b) The request for renewal has been rejected by the STATE. The STATE will not unreasonably withhold approval of a request by OPERA TOR to renew this agreement. 22. HARBOR TRANSFER TO OPERATOR. Pursuant to AS 35.10.120 the OPERATOR may apply to the STATE, or the STATE may request of the OPERATOR, at any time during the term of this agreement for transfer of ownership of such portions of the HARBOR as are owned by the STATE, and to any personal property, easements. permits, or rights, owned by the ST ATE at the HARBOR. The ST ATE may convey ownership to the OPERA TOR if such conveyance is determined to be in the best interest of the public and the OPERA TOR has met all the requirements of law and regulations regarding qualifications to receive ownership of the HARBOR. The total purchase price will be for a nominal sum. Any conveyance will be subject to any restrictions on the STATE's title and will include the following provisions: (a) If the OPERA TOR attempts to transfer title to or control of the facilities conveyed without the prior written approval of the STATE (Grantor), such transfer will be void and of no effect. (b) The OPERATOR will administer, maintain, and operate the HARBOR as a public facility for the use and benefit of the public. The OPERATOR will make all facilities and services at the HARBOR available to the public on fair and reasonable terms without discrimination. 16 . . . 23. 24. (c) Prior to the STATE'S transfer of the HARBOR to the OPERATOR. the OPERATOR will provide to the 5T ATE a detailed harbor management and financial plan that demonstrates how the OPERA TOR proposes to maintain and operate the facility. Such plan must also address anticipated future development or expansion of the HARBOR. 22.1 It is mutually agreed that the OPERATOR will take possession and ownership of any components of the HARBOR, such as but not limited to. floats, docks. grids, approaches, etc., that are repaired, replaced or newly constructed and have an expected useful life of twenty (20) years. Such transfer of ownership will be upon final inspection and acceptance for use of the component by the STATE and the OPERATOR. 22.2 In the event the HARBOR is transferred to the OPERATOR as provided in paragraph 22, this agreement will terminate on the effective date of the STATE's conveyance of ownership to the OPERATOR. In the event that HARBOR components are transferred to the OPERA TOR as provided in paragraph 22.1, this agreement will continue in full force and effect. However, those portions of the HARBOR transferred to the OPERA TOR will. by reference in the transfer document, be deleted from this agreement. 22.4 The OPERA TOR agrees that any component or facility of the HARBOR that is transferred pursuant to this provision, will be subject to the same operating rules as those portions of the HARBOR that remain in STATE ownership. However, this provision only applies for the remainder of the useful life of the component or facility that is transferred to the OPERATOR. The useful life of a component or facility will be determined by mutual agreement by the STATE and OPERA TOR through a joint inspection of the component or facility prior to its being transferred to the OPERA TOR. TITLE REPRESENTATIONS. This agreement is subject to any and all of the covenants, terms, and conditions that are contained in the instruments conveying title or other interests or improvements related to the HARBOR to the STATE. TERMINATION OF AGREEMENT. The STATE may cancel this agreement by giving the OPERATOR sixty (60) days advance written notice upon the failure of the OPERATOR to perform, keep, and observe any of the terms, covenants, and conditions contained in this agreement, unless the deficiency is cured or the OPERATOR can prove diligent effort is being made to cure any such deficiency or compliance with any term, covenant or provision of this agreement within such sixty (60) day period. 17 24.1 The OPERA TOR agrees that the Major Maintenance. Repair & Replacement Fund and all unexpended HARBOR revenues and any investments therefrom will be surrendered by the OPERA TOR upon demand by the 5T ATE, if: (a) The STATE terminates this agreement for default pursuant to paragraph 24; or (b) This agreement is not renewed because the OPERA TOR fails to request renewal pursuant to paragraph No. 21, or chooses not to sign a renewal agreement offered by the STATE; or 24.2 The provision of 24.1 will not apply if this agreement is terminated as a result of the STATE's transfer of HARBOR ownership to the OPERATOR pursuant to paragraph No. 22. 25. DISPOSITION OF HARBOR IMPROVEMENTS UPON TERMINATION. It is understood and agreed to by the STATE and the OPERATOR that the HARBOR is a public facility for the use and benefit of the public. Therefore. upon termination of the agreement by the STATE under paragraph No. 24.1(a). or if the OPERATOR fails to renew the agreement under paragraph No. 24.l(b), title to all permanent improvements in the HARBOR, whether originally constructed by the STATE or by the OPERATOR will vest in the STATE, In addition, title to all personal property that is essential to the operation of the HARBOR. such as waste oil tanks and trash receptacles, fire fighting equipment. office equipment. computers, maintenance equipment, tools, vehicles. etc., whether originally owned by the STATE or by the OPERATOR. will likewise vest in the STATE. Further. any equipment, vehicles, or supplies that have been purchased with HARBOR funds will be transferred to the STATE. However, any waste tanks, trash receptacles, etc., owned by a third party will remain the property of the third party. 25.1 If upon expiration of this agreement. the OPERATOR does not renew the agreement by its signing of a succeeding agreement. title to all improvements constructed by the STATE and personal property owned by the STATE will remain vested in the STATE. Further, title to all improvements to the HARBOR constructed by the OPERA TOR, and any and all equipment and vehicles purchased with HARBOR funds will vest in the 5T ATE. Further. all revenue or other accounts whereby HARBOR revenue is deposited will be turned over to the STATE. However. any personal property owned by the OPERATOR will remain vested in the OPERA TOR. 26. LIABILITY. The OPERA TOR will indemnify, defend, and hold the 5T ATE. its officers, employees and agents harmless from any liability, action. claim, suit. loss. property damage, or personal injury of whatever kind including any and all legal actions or claims whatsoever resulting from or arising out of any act of commission 18 . . . or omission by the OPERA TOR, his agents, employees, or officers, arising from or out of the OPERATOR's use, operation, maintenance, and repair of the HARBOR. This indemnify, defend and hold harmless clause will survive the expiration or early termination of this agreement. 27. INSURANCE. At no expense to the STATE, the OPERA TOR will obtain and keep in force throughout the term of this agreement adequate insurance to protect both the STATE and the OPERATOR against comprehensive public liability in connection with the HARBOR. All insurance required by this covenant must: (a) Carry a minimum coverage limit of $5,000,000.00, Combined Single Limit (CSL) for personal injury and death per person per occurrence. (b) Name the STATE as an additional assured. (c) Include a waiver of subrogation by which the insurer waives all rights of subrogation against the ST ATE for payments made under the policy. (d) Notify the STATE at least thirty (30) days in advance of any cancellation, termination, or material change in the coverage. (e) The OPERATOR will provide the STATE with proof of insurance coverage in the form of a certificate of insurance or insurance policy upon request. 27.1 The ST ATE and OPERATOR agree to review the level of insurance coverage of the HARBOR annually to determine if sufficient coverage is in place to adequately protect both the OPERATOR and the STATE as provided. In the event that the STATE determines that the coverage amounts are not adequate. the 5T ATE will furnish the OPERA TOR with written notice of the required minimum coverage level. The OPERATOR will, within thirty (30) days following the OPERATOR's receipt of the STATE's notice, submit to the STATE evidence that the required coverage has been obtained. 27.2 The requirement of insurance coverage does not relieve the OPERA TOR of any other obligations under this agreement. 28. FACILITY DAMAGE BY THIRD PARTIES. In the event a party who is not a signatory to this agreement damages any part of the HARBOR, the OPERA TOR agrees to make a diligent effort to determine the identity of the party responsible for the damage and to recover the cost of repairs. The OPERATOR will inform the STATE instances of third party damages and the proposed methods of recouping the costs to repair or replace the damaged HARBOR facility. 19 28.1 The OPERATOR will repair or replace structural damage to docks, floats. piling, grids, approaches or other HARBOR components which results from damage by a third pany to ensure the safe and continuous operation of the HARBOR. Such repairs are eligible for funding from the MMRRF as described in Paragraph 12 of this agreement or from HARBOR revenue. Expenditures from these sources will be reimbursed to the HARBOR upon senlement of the claim. 29. DISCRIMINATION. The OPERATOR covenants and agrees that discrimination on the grounds of race, color, religion, national origin, ancestry, age, or sex will not be permined against any patron, employee, applicant for employment, HARBOR user or other person or group of persons in any manner prohibited by federal or state law. The OPERA TOR recognizes the right of the STATE to take any action necessary to enforce this clause, including actions required pursuant to any federal or state law. 30. DISPUTES AND CLAIMS. The STATE and OPERATOR agree to diligently work to resolve any dispute between the parties of this agreement. However, in any dispute between the parties that is not resolved, the OPERA TOR will: (a) submit a wrinen request for review of the decision within fifteen days to the Regional Director of the Department of Transportation and Public Facilities stating with specificitY the OPERATOR's basis for the review with any supporting documents; (b) within 30 days the Regional Director will issue a wrinen decision; (c) If the OPERATOR wants to appeal the decision of the Regional Director, the OPERATOR must submit a wrinen appeal to the Commissioner of the Department of Transportation and Public Facilities within fourteen days after receiving the Regional Director's decision. The appeal must contain a copy of the decision being appealed and identify the factual or legal errors in the Regional Director's decision that form the basis of the appeal; (d) within fourteen days after the receipt of the appeal, the Commissioner may adopt the decision of the Regional Director as the final decision of the Department without a hearing or may determine a hearing will be conducted on the appeal; (e) if the Commissioner determines a hearing will be conducted, the Commissioner will designate an employee of the Department who has not been directly involved in the contract as the hearing officer, or appoint a hearing officer from outside the Department; 20 . . . 31. 32. (1) the hearing officer will follow substantially the same procedures as provided in AS 36.30.670; (g) the hearing officer will make a recommendation to the Commissioner based on the evidence presented; (h) the Commissioner may affinn, modify, or reject the hearing officer's recommendation in whole or in part, may remand the matter to the hearing officer with instructions, or take other appropriate action; (i) a decision of the Commissioner after a hearing under this paragraph is final and may be appealed to the Superior Court in accordance with the Alaska Rules of Appellate Procedure; U> a decision of the Commissioner made without a hearing may be appealed to Superior Court for a new trial; (k) In any unresolved disputes or appeals between the OPERATOR and the STATE, the laws of the State of Alaska will govern any lawsuit which must be brought in the Superior Court for the State of Alaska, in the Municipality of Anchorage, Third Judicial District. 30.1 The OPERATOR agrees to notify the STATE of any claim, demand, or lawsuit arising out of, or connected with, the OPERATOR's use or operation of the HARBOR. At the STATE's request the OPERATOR will cooperate and assist in the investigation and litigation of any claim, demand, or lawsuit against the ST ATE which is related to the HARBOR. LIENS. The OPERATOR will keep the HARBOR free of all liens. pay all costs for labor and materials arising out of any construction, repair or improvements by the OPERATOR at the HARBOR, and hold the ST ATE hannless from liability for any such liens, including costs and attorney fees. NO WAIVER. The failure of the STATE to insist in anyone or more instances upon the strict perfonnance by the OPERATOR of any provision or covenant in this agreement may not be considered as a waiver or relinquishment for the future, but the provision or covenant will continue in full force. The waiver by the ST ATE of any provision or covenant in this agreement cannot be enforced or relied upon unless the waiver is in writing and signed on behalf of the STATE. 33. VALIDITY OF PARTS. If any provision or covenant of this agreement is declared to be invalid by a court of competent jurisdiction, the remaining covenants and provisions will continue in full force. 21 34. ENTIRE AGREEMENT. This agreement and Exhibit A contain the entire agreement between the STATE and the OPERATOR and may be amended only by subsequent written agreement. No promises or representations, except as contained in this agreement, have been made to the OPERA TOR respecting the condition of the HARBOR. 35. AMENDMENT. No amendment, alteration, modification of or addition to the agreement will be valid or binding unless expressed in writing and signed by the party or parties to be bound by such change. The OPERATOR agrees to make any modifications of the terms and provisions of this agreement necessary to meet revised requirement of federal or state grants or to conform to the requirements of any revenue bond covenant to which the STATE is a party, provided, however, that such modifications will not reduce the rights and privileges granted to the OPERA TOR by this agreement nor act to cause the OPERATOR financial loss. 36. NATURAL DISASTERS. In the event any cause, which is not due to the fault or negligence of either the OPERA TOR or the STATE, renders the HARBOR unusable and makes the performance of this agreement impossible, this agreement may be terminated by either party upon written notice to the other party. Such causes include acts of Nature or the public enemy, acts of the United States, earthquake, fire, or flood. All HARBOR revenue in the MMRRF Fund, other unexpended HARBOR revenue, and equipment and vehicles purchased with HARBOR funds will be surrendered to the STATE upon closure of the HARBOR, once the HARBOR is determined to be unusable and is decommissioned, or either party informs the other in writing of its intent to cancel the agreement. All decommissioning activities with respect to the HARBOR and the closure of the HARBOR will be completed within 90 days from the date of the event unless otherwise agreed to in writing by the parties. 37. NOTICES. Any notice required by this agreement must be hand delivered or sent by registered or certified mail to the appropriate party at the address set forth on page one of this agreement or to any other address which the parties subsequently designate in writing. 38. NATIONAL EMERGENCY. In case of any national emergency declared by the federal government, the OPERA TOR may not hold the STATE nor the STATE hold the OPERA TOR liable for any inability to perform any part of this agreement as a result of the national emergency. 39. APPROV AL BY STATE. Any approvals required of the ST ATE by this agreement will not be unreasonably withheld. 40. SUBJECT TO APPROPRIATIONS. The performance by the STATE of any of its obligations under this agreement which require expenditures will be subject to the 22 . . . 41. 42. 43. 44. appropriation of sufficient funds. The STATE agrees to diligently seek the appropriation of sufficient funds to perform its obligations under this agreement. THIRD PARTY RIGHTS. Nothing in this agreement, express or implied, confers any rights upon any person other than the STATE, the OPERA TOR and their successors. INDEPENDENT COUNSEL. The rule of construction that any agreement shall be construed strictly against the drafter of the agreement will not apply to this agreement as both parties have had the opportunity to secure counsel to examine and advise each party concerning this agreement. PUBLIC INFORMATION. The STATE and the OPERATOR agree that keeping the public informed is critical to the success of operating a public boat harbor. Therefore, the OPERA TOR agrees to establish a public information program for public input, and to inform the general public of proposed HARBOR development and policies. Further, OPERATOR agrees to publish and make available to the general public a newsletter, published quarterly, of various events, projects, developments, regulations, current harbor conditions, HARBOR rates and fees, or other items of public concern. FUEL SERVICES. The OPERATOR will establish adequate procedures for safely storing and dispensing fuel in the HARBOR. Such procedures will be posted in and around the fuel servicing dock, and such other areas within the HARBOR where fuel servicing is performed. The OPERATOR will establish and maintain a State of Alaska Deparnnent of Environmental Conservation (ADEC) approved spill prevention and clean-up plan. Such plan will be located in the Harbor Masters office, the fuel dock, and with the STATE. 44.1 All fuel servicing equipment must meet all regulatory requirements and standards, and all persons who fuel must be trained in the proper procedures for handling fuel, fire safety, and fuel clean-up should a spill occur. Adequate fire extinguishers will be placed within easy reach of each fuel dispensing unit. 44.2 Subject to General Covenant No. 16, the OPERATOR may enter into contracts for mobile and stationary fuel servicing. Any subcontract must meet the terms of this agreement. 44.3 The OPERATOR, or its fuel contractor, will have on site in a conspicuous location, adequate fuel and oil absorbent materials to contain and clean-up any spillage of fuel or oil within the fuel servicing area. Further, all fuel nozzles must be placed in a fuel absorbent closed container when not in use. 23 44.4 All fueling will be performed in designated locations. Such locations will be adequately posted with no smoking signs, where the emergency fuel shutoff is located, where the fuel absorbent materials are located. Emergency telephone numbers for the fire department, police department, Alaska Department of Environmental Conservation, and the Harbor Master's Office must be posted both inside and outside the fuel float's office in conspicuous locations. 44.5 The OPERATOR will at all times maintain control over its fuel servicing area and equipment and, for the safety of the general public, limit or otherwise control public access across the fuel dock and the other fueling areas. 44.6 The OPERATOR will require any fuel contractor that provides fuel service to have adequate insurance coverage that protects the OPERA TOR, the STATE and the STATE owned HARBOR facilities from liability through fuel related incidents, such as but not limited to, fuel spills. fire or contamination. 45. HARBOR ENTERPRISE FUND. The OPERATOR created the Seward Harbor Enterprise Fund for purposes of developing in the community of Seward an integrated marine terminals and facilities agency. The OPERATOR may use amounts from Seward Harbor Enterprise Fund for any lawful purpose, except as limited by the terms and conditions of this agreement. 46. HARBOR INDEBTEDNESS. The OPERATOR acknowledges that the STATE HARBOR Component of the Seward Harbor Enterprise Fund is not obligated to or indebted to the City of Seward's General Fund. 24 . . . , "- , '" -- 0 <: , J: , <( 3: <( c:) '" 0 " .., CO >< " - ? - " - " ~ ~ '" " :: '" 0 J: '" ~ '" <J) ~ x 25 c ....,.:. "L" ,..: \ .).....=- _ '-- ,)..:.. r "K" "F" :x: >- u <[ <[ ~ o C> a:: z Il. <[ ~ C) ;,., 0 co '" "H" >- I- ~ U "- :;; <( '" ? '" J: ::5 z ~ '" -, <( SCALE IN FEE r '90 50 0 100 200 ~oo . ~,~S~1 0: ~ ""\"\ "E" c, '5eo ~L'')~;- -NiTrl 28-4 x 42 3'':' '-, -.. :) "0" 3:: .:..=_ - 'l::' - -'-..... S T ;lL_ ._4 NAVIGATIONAL . GUIDE PILINGS I- <[ o -' .... o '" ~ >< o "X" STATE OF ALASKA DEPARTMENT OF TRANSPORT A TION AND PUBLIC FACILITIES SEWARD BOAT HARBOR, EXHIBIT "A" t ( o:..:i~.l ~ ~~ ~':..:.: 1'.':' . 2 :.:',..: _ ";\'C. = -::,: 4 ~ - =:... ,S' - ~ ~ '': :) ('- . - . '- .. ~ ^' - 0: '( ,~? ',::::C::(: :"2_ !. ..:;- ,~ SEW ARD AK 7/14/94 " ." IN WITNESS WHEREOF, the parties hereto have set their hands and day and year stated in the acknowledgments below. CITY OF SEWARD Tvler .Jones. City Mana2er fr;~~ STATE OF ALASKA ) )ss. ) THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that on this _ day of , 1994, before me, the undersigned, a Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared TYLER JONES, known to me and to me known to be the City Manager of the CITY OF SEWARD, ALASKA, who executed the foregoing instrument on behalf of said CITY, and he acknowledged to me that he signed the same as his free and voluntary act and deed with full knowledge of its contents, for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year above written. Notary Public in and for Alaska My Commission Expires: ******************************************************************************************. STATE OF ALASKA DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES ST A TE OF ALASKA ) )ss. ) THIRD JUDICIAL DISTRICT John D. Horn, P.E. Regional Director, Central Region THIS IS TO CERTIFY that on this _ day of , 1994, before the undersigned, a Notary Public in and for Alaska, personally appeared JOHN D. HORN, P.E., known to me and to me known to be the REGIONAL DIRECTOR, CENTRAL REGION, Department of Transportation and Public Facilities, and he acknowledged to me that he executed the foregoing instrument freely and voluntarily on behalf of the State of Alaska, Department of Transportation and Public Facilities, for the uses and purposes therein set forth and that he is authorized by said State of Alaska so to do. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year first written above. Notary Public in and for Alaska My Commission Expires: