HomeMy WebLinkAbout04042006 Planning & Zoning Packet
Seward Planning & Zoning Commission
..
April 4, 2006
i ~
Marianna Keil
Chair
Term Expires 02/07
Tom Smith
Vice-Chair
Term Expires 02/07
Margaret Anderson
Commissioner
Term Expires 02/09
Kevin Clark
Commissioner
Term Expires 02/09
Lynn Hohl
Commissioner
Term Expires 02/08
Sandie Roach'
Commissioner
Term Expires 02/07
Kay Strobel
Commissioner
Term Expires 02/08
6.
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Clark Corbridge
City Manager
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Malcolm Brown
Planner
Donna Glenz
Planning Assistant
7:30 p.m.
Re~:~~!!~~!=~
1.
Call to Order
2.
Opening Ceremony
A. Pledge of Allegiance
3.
Roll Call
4.
Special Reports & Presentations .
A.
City Administration Report
B.
KPB Planning Commission Report - Lynn HoW
C. Other Reports, Announcements & Presentations
1. Liaison from Seward Bear Creek Flood Service
Area Board
5.
Citizens' Comments on any subject except those items
scheduled for public hearing. [Those who have signed in
will be given the first opportunity to speak Time is limited
to 2 minutes per speaker and 30 minutes total time for this
agenda item]
Approval of Agenda and Consent Agenda. [Approval of
Consent Agenda passes all routine items indicated by
asterisk (*). Consent Agenda items are not considered
separately unless a Commissioner so requests. In the event
of such a request, the item is returned to the Regular
Agenda.]
Planning & Zoning Commission
April 4, 2006
Regular Meeting Agenda
Page 1
7. Public Hearings [Limit comments to 5 minutes. Those who have signed in will be given
the first opportunity to speak]
A. Unfinished Business requiring a Public Hearing
1.
Resolution 2006-09 providing a recommendation to City Council
regarding a proposal by the Seward Association for the Advancement of
Marine Science (SAAMS) to lease a portion of the Alaska Tidelands
Survey 174, located south of City owned Tract 2A, Water Front Tract,
currently leased by SAAMS. [as postponed from the March 7, 2006
Planning and Zoning Meeting] ....................................................... Page 04
..
I
2 ResolutieB 299~ Q7 reeemmeading City CeUfleil atneREl Se>.vard City
Cese Parking R-equirements, 15.10.215 te eRS\1f8 6emplianee '.vith the
parking Felll:1ii'emems ef the Feaeml Amerieans Disabilities 1'.o6t (as
IJastpaBed from the Mareh 7, 200<<; Plllooiog aDd Zaoiog MeetiBg)
[ Due to not being properly posted as a public hearing this item has
been postponed until the May 4, 2006 Planning and Zoning Meeting]
........................................................................................................................
B. New Business Items requiring a Public Hearing
1. Resolution 2006-11, granting a variance from SCC ~ 15.10.220
Development Requirements to allow the existing ice house and grinder/pit
and the proposed freezer unit, within the North and South side setbacks of
Lot 2, Block 9, Fourth of July Creek Subdivision, Seward Marine
Industrial Center, within the Industrial (I) Zoning District............ Page 132
8. Unfmished Business
A. Review and Approval of written facts and findings of the March 16, 2006 Zoning
Violation, Waliezer Appeal Hearing.......................................................... Page 144
9. New Business
A. Resolution 2006-10 supporting the concept of the Mariners Memorial for the
Small Boat Harbor [as postponed from the March 7, 2006 Planning and
Zoning Meeting] ....................................................................................... Page 147
B. Review of the Annual Work Session Topics as prioritized at the March 21, 2006
Council / Planning & Zoning work session ............................................... Page 171
C. Selection of the April 18, 2006 Work Session Topic ................................ Page 171
Planning & Zoning Commission
April 4, 2006
Regular Meeting Agenda
Page 2
*
D.
March 7, 2006 Regular Meeting Minutes .................................................. Page 174
10. Informational Items and Reports (No action required)
A. Anchorage Metropolitan Area Transportation Solutions (AMATS) . Page 186
11. Commission Comments
12. Citizens' Comments [Limit to 5 minutes per individual - Each individual has one
opportunity to speak]
13. Commissions and Administration Response to Citizens' Comments
14. Adjournment
"
Planning & Zoning Commission
April 4, 2006
Regular Meeting Agenda
Page 3
P&Z Agenda Statement
Meeting Date:
April 4, 2006
Clark Corbridge, City Manager ~
Malcolm G. Brown, Planner
Through:
From:
Agenda Item:
The Seward Association for the
Advancement of Marine Science request to lease a
portion of the adjacent tidal and submerged lands
located within Alaska Tidelands Survey 174 to install
and operate a floating dock for tour boat operations
(postponed from the March 7, 2006 meeting)
BACKGROUND & .ruSTIFICATION:
The Seward Association for the Advancement of Marine Science (SAAMS) has
requested to lease a portion of city-owned Alaska Tidelands Survey 174. The tidelands
would be used to support a floating dock for tour boat operations conducted by a private
company. The Planning Commission is reviewing the request to lease City land as per
Council Resolution 94-101. The use of the tidelands was reviewed by the Planning
Commission at the March 7, 2006 meeting as an amendment to the Conditional Use
Permit which was issued in 1994 to SAAMS via Resolution 2006-08.
Resolution 2006-09 was postponed at the March 7,2006 meeting and has been brought
forward verbatim, with the exception of the date for approval, since no amendments were
made. However, staff has received input and additional information and a new
recommendation is being proposed.
SAAMS has constructed an amendment to the lease, dated 10/06/05, referred to as the
"Fifth amendment to agreement for financing, lease, construction, operation, and
maintenance of the Alaska SeaLife Center." The City of Seward has reviewed this
amendment and has brought forward the City's draft lease amendment. This lease
amendment is the "Lease Amendment No.5 between City of Seward, Alaska and Seward
Association for the Advancement of Marine Science d/b/a Alaska SeaLife Center"
(hereafter referred to as the City's lease amendment).
Staff recommends approval of the lease of the tidelands, subject to use of the City's lease
amendment. This amendment has more detail on certain activities, such as passenger
fees, allowances for public use of the dock and operations and maintenance issues.
Section 3.2.9 specifies that "SAAMS shall pay as additional rent [$3.50] per passenger,
or such amount for passenger fees as adopted from time to time in the City's tariffs, for
to
any vessel using the Floating Dock. Payment, reporting, and audit of passenger fees shall
be, in all respects, subject to the provisions of the Port and Harbor Tariff." This
provision ensures consistency with use of City assets.
Section 4.2.(c) states "SAAMS shall accommodate other users desiring to use the
Floating Dock. Such use may be on a scheduled basis and in accordance with such
reasonable terms and conditions as determined by SAAMS and in accordance with all
ordinances and the City policies related to the City's Small Boat Harbor. The Floating
Dock shall be considered a public dock subject to port and harbor rules and regulations
as adopted by the City Council." This provision ensures that the public has access to
infrastructure placed in public tidelands and that the floating dock is not reserved solely
for a private user.
Public input: This item was brought forward as a public hearing item at the March 7,
2006 meeting along with the request to amend the Conditional Use Permit at which
several members of the public spoke. Several members of the public reviewed the
application before that meeting. The Clerk's office has continued to receive requests for
documentation regarding the lease request.
Surrounding Land Use and Zoning: Tract 2A Waterfront Tracts is located within the
Central Business District, a district which is intended to provide an area "of convenient,
attractive, concentrated commercial development primarily intended for retail, financial,
entertainment and professional services occurring within enclosed structures.
Regulations applying to this zone are designed to encourage a compact group of
businesses of the type which are mutually beneficial and located close enough together to
encourage walk-in trade, SCC 15.05.025(9)." The land to the East is used for Parks, the
land to the North is primarily used for retail, offices and restaurants and the land to the
West is used by the Institute for Marine Sciences.
Floodplain status: According to the FEMA Flood Insurance Rate Map, the tidelands
property is located in a Coastal Velocity zone. Staff and the State Floodplain
Administrator are reviewing the proposal to see if the applicants will need to request a
Floodplain Development Permit from the City.
Drainage: Staff does not anticipate any impact on drainage due to this activity.
Utilities: The property is served by existing public utilities and developed streets. The
applicants have stated that their dock will not need electricity, water or sewer.
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Location:
Tract 2A, Waterfront Tracts and an adjacent portion of Alaska
Tidelands Survey 174
Size:
79,451 square feet of tidelands, as per the site plan submitted by
the applicant The City's lease amendment identifies
approximately 34,500 square feet.
1
Zoning:
not zoned.
Central Business District (CBD) for the uplands, the tidelands are
Existing Use: The Alaska SeaLife Center is used for marine research, marine
related outreach, marine education, visitor tours and retail activities.
Proposed Use: The applicant proposes to have a privately owned and used floating
dock to support boat tours of approximately two hours. The tours would take place
several times per day and hold a maximum of fifty (50) passengers.
CONSISTENCY CHECKLIST:
Yes
No
1. Comprehensive Plan (2006) .lL-
The Comprehensive Plan encourages the City to "Improve and expand onshore and
offshore maritime facilities (see Port and Harbor Development) (page 18) and to "Use
city-owned land and tidelands to encourage feasible and sound economic development by
setting development standards and performance periods through the leasing process.
Evaluate for disposal city-owned lands which have not or will not be dedicated to a
public purpose (page 20)."
2. Strategic Plan (1999) .lL-
This plan has statement which provides geneml support for this type of an activity
"Vision Base: We are a community that promotes economic diversity, encourages growth
of year-round businesses, desires environmentally-responsible industry, and seeks jobs
that promote a higher standard ofliving (page 3)."
3. Municipal Lands Management Plan (1995) .lL-
This plan has a recommendation for "Tidelands. Undeveloped Remainder, Retain
ownership. Except for tidelands directly adjacent to upland Parks, dispose through lease
or permit as opportunities arise (pages 22-23).
RECOMMENDATION:
Staff recommends that the Commission approve Resolution 2006-09, in accordance with
the City's lease amendment. which could be included as a supporting document. The
City's lease amendment ensures collection of passenger fees for the City, public use of
the dock and clarifies opemtions and maintenance issues.
f'
LEASE AMENDMENT NO.5
between
CITY OF SEW A
SEWARD ASSOCIATIO
ADVANCEMENT OF MA
0/
SCIE d/b/a Alaska SeaLife Center
"
Effective Date: r
1
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 1 OF 13-
Cj
LEASE AMENDMENT NO.5
This Lease Amendment is made by and between THE CITY OF SEWARD, ALASKA,
a home rule municipal corporation, organized and existing under the laws of the State of Alaska,
hereinafter referred to as "City," whose address is PO Box 167, Seward, Alaska 99664 and the
SEWARD ASSOCIATION FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a
Alaska SeaLife Center, a non-profit Alaska corporation P.O. Box 1329, Seward, Alaska 99664,
hereinafter referred to as "SAAMS."
WHEREAS, SAAMS desires to construct a floating dock faci
SAAMS's operations related to the Alaska SeaLife Center and, to that end, seek
tidelands to the Property under the Agreement; and
,
WHEREAS, the Agreement for Financing, Lease,
Maintenance ofthe Alaska SeaLife Center dated April 28, 199
SAAMS, and amended on May 1, 1996, March 26, 1997, N
(collectively, the "Agreement"); and
WHEREAS, SAAMS has indi .
and submerged lands adjacent to and se
additional area of approximately 34,500 s
d its desire to lease a parcel located within the tidal
the Property currently under the Agreement, an
. size; and
WHEREAS, the Seward City Coun
purposes described herein would be in the pub
at a lease to SAAMS for the
WHEREAS, it is the intent of this L
SAAMS the entire burden of compliance with p
controls with res ect to SAAMS' operations on th
endment to transfer from the City to
t or future environmental regulations or
roperty during the Agreement term.
1.1
, the City and SAAMS hereby amend the Agreement as follows:
ARTICLE 1 - TIDELANDS
n of "Property" as described in Section 1.1.30 of the Agreement
following:
A portion of laska Tideland Survey 174, a parcel south and seaward of Tract 2A,
Waterfront Tracts, according to Plat No. 95-13, Seward Recording District, Third Judicial
District, State of Alaska, containing 34,500 square feet, more or less, including the
(proposed) floating dock structure plus connecting gangway, all as depicted on Exhibit A,
which is attached and incorporated herein by reference ("Tidelands").
1.2 Tidelands Accepted "As-is." SAAMS acknowledges that it has inspected the Tidelands
and accepts the same "as-is" and without reliance on any expressed or implied
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 2 OF 13-
Jo
representations or warranties of City, or agents of the City, as to the actual physical
condition or characteristics thereof, including but not limited to the description of the
Leased Tidelands herein.
1.3 Survey of Lease Site. Within ninety (90) days from the date of this Lease Amendment,
SAAMS, at its sole cost, will cause the Tidelands to be surveyed and platted by a land
surveyor registered in the State of Alaska. A copy of the drawing and description of the
Tidelands based upon this survey shall be attached to this Lease Amendment as Exhibit B
and incorporated herein by reference. The description of the' ds in Exhibit B shall
supersede the description in Exhibit A, and shall be consid e rrect description of
the Tidelands for all purposes under this Lease Amend AAMS shall provide the
City a copy of any and all surveys within ten (10) da 's receipt of any and all
surveys. The City shall have the right to comm. all surveys, but the
exercise of this right shall not imply any obliga . .~ so or an . gation to do so in
any particular way. If the City objects to urveyor's conclusio the survey, the
City may give written notice to SAAMS ity's d 'ection within 0) days of
receipt of the survey. The City shall the and surveyor tered in the
State of Alaska at the City's expense to make ey of the Idelands. City
shall provide SAAMS a copy of the second surve ten (10) days of City's receipt
of the second survey. Unless the City and SAAMS a hich survey is acceptable, the
acceptable survey shall be determined in accordance e arbitration provisions
contained in the Agreement.
1.4 Future Platting. In ent the City elects to replat, the City agrees to include the Lease
Tidelands in suc SAAMS requests a replat of the Tidelands prior to that time,
the City sha S in the preparation of and the filing of the re-plat and
SAAMS sh ity for the City's direct costs in assisting in the preparation
and filing of the S agrees to sign the plat and any other documents
necessary to comple tting of any area including all or a portion of
the Tidelands. SAAM accept reasonable restrictions, easements, or plat notes as
may be required by the Ci governmental authorities as a condition to record the
plat of the Tidelands or the p City-owned real property adjacent to the Tidelands.
ARTICLE 2 -TERM AND EFFECTIVE DATE
2.1 Effective Date. This Lease Amendment shall become effective upon the effective date, in
accordance with, Resolution 2006-_ of the Seward City Council, and continue for the
remaining term of the Agreement unless earlier terminated as provided in this Lease
Amendment or the Agreement.
2.2 Subject to Referendum. SAAMS understands and assumes the risk that under the Charter
and Code of the City, Resolution No. 2006-_ authorizing this Lease Amendment, may
be voided by referendum. SAAMS agrees that if the Resolution is the subject of a valid
referendum petition filed with the Seward City Clerk, SAAMS shall have no rights under
this Lease Amendment unless and until the Resolution is approved by the voters of the
City of Seward, and SAAMS shall not be entitled to any damages or any other relief
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 3 OF 13-
1/
against the City in the event the Resolution is not so approved.
ARTICLE 3 - RENTAL RATE
Section 3.2 of the Agreement is amended by the addition of Sections 3.2.1 through 3.2.9
below:
3.2.1 Initial Rental Rate. Commencing on the effective date of this Lease Amendment, the
initial annual rental rate for the Tidelands shall be set at $8,000. Rent shall be payable
quarterly in advance upon the effective date of this Lease Amendment and thereafter on
or before the 20th day of the first month of each calendar quarter: January 20, April 20,
July 20 and October 20. the amount of each quarterly payment shall be one-quarter (l/4)
of the annual rental rate as initially established or 1 er adjusted under this Section 3.2.
3.2.2 Rental Adjustments. The annual rental pa for the Tidelands shall be adjusted on
July 1, 2010, and on the same date every th fter (each a "Rental Adjustment
Date"). The adjusted annual rental pa der the terms of this Lease
Amendment shall be eight percent (8%), subjec ustment by the Seward City
Council at any time during the term of this Agr , of the appraised Fair Market
Value of the Tidelands at the highest and best use of 'delands. The City shall, at its
own expense, retain an independent MAl-certified ap ho shall determine the
"Fair Market Value" of the Tidelands, exclusive of im ents placed thereon by
SAAMS but inclusive of all improvements made by th City (including those made
before or subsequ this Agreement), assuming the highest and best use of the
Tidelands. The mplete such appraisal and deliver a copy of the appraisal
report to S ninety (90) days before the Rental Adjustment Date.
3.2.3 Procedure for R To adjust the rent for the Tidelands as of any
successive Rental City may, at its own expense, retain an
independent MAI-certi raiser 0 shall determine the adjusted annual rental rate
at eight percent (8%), su ture adjustment by the Seward City Council at any
time during the term of this ment, of the Fair Market Value of the Tidelands in
accordance with Section 3.2. e appraiser's report shall be delivered to SAAMS not less
than ninety (90) days before the Rental Adjustment Date. The appraiser's determination
of the Fair Market Value of the Tidelands shall constitute a final binding determination of
the Fair Market Value and the adjusted annual rental rate until the next Rental
Adjustment Date, unless SAAMS gives notice of objection. If SAAMS objects to the
appraiser's determination of the Fair Market Value, SAAMS shall give written notice to
the City of its objection within thirty (30) days of receipt of the appraiser's report, and
SAAMS shall then engage a second independent MAl-certified appraiser at SAAMS's
expense to make a second appraisal of the Fair Market Value in accordance with Section
3.2.2.
"
If the second appraisal determines a Fair Market Value that varies from that determined
by the first appraisal by no more than twenty percent (20%), then the adjusted rental rate
shall be the average of the rental rates determined by the appraisals. If the second
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 4 OF 13-
/2
appraisal determines a Fair Market Value that varies from the first appraisal by more than
twenty percent (20%), then, unless the City and SAAMS agree on a rate themselves, the
Fair Market Value and the adjusted annual rental rate of the Tidelands shall be
determined in accordance with the arbitration provisions contained in the Agreement.
3.2.4 Effect of Late Appraisal by City. If, for any reason, City does not complete the appraisal
of the Tidelands or delivery a copy of the appraisal report to the SAAMS ninety (90) days
before the Rental Adjustment Date, City may proceed to complete the appraisal or deliver
a copy of the appraisal report to SAAMS at any time ther . However, any such
adjusted annual rental rate shall not be effective until th y payment due date
immediately following the date the City delivers the app ort to SAAMS.
3.2.5 Appraisal by SMMS. If for any particular reason, th 'ty fai btain an appraisal of
the Fair Market Value of the Tidelands or fails to deliv the app eport to SAAMS
by the Rental Adjustment Date, SAAMS may engage an indep MAl-certified
appraiser at SAAMS's expense to make an appraisal under the terms 'ODS 3.2.2
and 3.2.3 and submit a copy to the City before the next quarterly rental pent due date.
However, SAAMS must notifY the City in writing within thirty (30) days freceipt of the
appraiser's report, and City shall then engage a second independent MAl-certified
appraiser at the City's expense tea second appraisal of the Fair Market Value as of
the Rental Adjustment Date and i ce with Section 3.2.2. If the second appraisal
determines a Fair Market Value tha that determined by the first appraisal by
no more than twenty (20%) percent, and SAAMS agree on a rate
themselves, the Fair Market Value ual rental rate of the Tidelands
shall be determined in accordance tion provisions contained in the
Agreement.
.-
3.2.6 Effective Date of Adjusted Rental Rate. djusted annual rental rate for the Tidelands
of the Rental Adjustment Date if the City provided a copy of the appraisal
ninety (90) days before the Rental Adjustment Date. If the adjusted
ased on City's late appraisal or late delivery of the appraisal report
rental rate shall be effective beginning with the quarterly rental
iately following the date the City delivers the appraisal report to
'ng the above, the exercise by either the City or SAAMS of the
ting to rental adjustment shall not postpone SAAMS's obligation
established by the City. SAAMS shall pay the amount of rent as
ed by the City until the question of objection to the rental rate is
finally resolv At such time the objection to the rental rate is resolved, an appropriate
credit or adjustment shall be made retroactive to the date the new rental rate was
established by the City or in cases where the City failed to obtain an appraisal or delivery
the appraisal report to SAAMS, to the Rental Adjustment Date.
3.2.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment
Date, excepting the Rental Adjustment Dates, the annual rental payment for the Tidelands
shall be increased beginning July 1 of every year thereafter (each on "Interim Rental
Adjustment Date") in an amount that reflects the increase, if any, in the cost of living for
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 5 OF 13-
/3
the previous year as stated in the Consumer Price Index, All Urban Consumers,
Anchorage, Alaska Area, All Items 1967=100 ("CPI"), as published by the United States
Department of Labor, Bureau of Labor Statistics for the most recent period published
immediately prior to the Interim Rental Adjustment Date. In no event shall the rent be
less than the previous year. If the CPI is revised or ceases to be published, the City shall
instead use such revised or other index as most nearly approximates the CPI for the
relevant period, and make whatever adjustment in its application as may be necessary, in
the City's sole discretion, to accomplished as nearly the same result as if the CPI had not
been revised or ceased to be published.
If, during the term of this Agreement, the Seward City Council elects to modify the
annual rental rate to any rate other than 8% of the appraised Fair Market Value of the
Tidelands at the highest and best use of the Tide ds, that rate change will take effect
beginning with the quarterly rental payment due . ediately following the effective
date of the Resolution which modifies the 8% e.
e due date shall bear interest
ate permitted under Alaska
o as authorized in the City's fee
e to time by city ordinance or
3.2.8.
Late Payment Charge. Rental payments
until paid at a rate of 10.5% per annum, or ili
law, whichever is less, plus a flat monthly late fee
schedule, or such amount as may be established fr
resolution and relating to late fees for city leases general
3.2.9 Additional Rent. SAAMS shall pay as additional rent [ .50] per passenger, or such
amount for passen as adopted from time to time in the City's tariffs, for any vessel
using the Floati yment, reporting, and audit of passenger fees shall be, in all
respects, subj . ons of the Port and Harbor Tariff.
4.1
Use of Tidelands. Ci
SAAMS for a floating do
be in the public interest. No
in Section 6.1 of this Lease
ited and available for lease. Use of the Tidelands by
has been determined by the City Council of City to
of any kind shall occur on the Floating Dock (defined
endment).
4.2 Obligations of SAAMS.
a) SAAMS shall be solely responsible to construct, in accordance with Article 6 of
this Lease Amendment, own, furnish, maintain, operate, and manage the Floating Dock
and all related equipment essential to its operation. At the expiration or termination of
the Agreement Term (including any extended period) the Floating Dock shall become the
property of the City without the payment of any compensation to SAAMS.
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b) SAAMS shall, at all times, maintain the Floating Dock in good condition and
repair, and in so doing shall keep it clean and clear of unnecessary potential hazards that
may develop as a result of SAAMS operations, or those of its agents, officers, employees,
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADY ANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 6 OF 13-
;Lj
customers, or contractors. Any such hazards that appear or exist on the facility from the
sole negligence or willful acts or omissions of a user, other than SAAMS, its agents,
employees, customers, or contractors, shall be reported immediately by SAAMS to the
City, when such hazardous cond. ition comes to the attention, knowledge, or information
~ .. - ----. -------.
of SAAMS. SAAMS acknowledges that weatber- arid sea- condltions may impacfuse and
maintenance requirements of the Floating Dock.
."
c) SAAMS shall accommodate other users desiring to use the Floating Dock. Such
use may be on a scheduled basis and in accordance with such reasonable terms and
conditions as determined by SAAMS and in accordance with all ordinances and the City
policies related to the City's Small Boat Harbor. The Floating Dock shall be considered a
public dock subject to port and harbor rules and regulations as adopted by the City
Council. Notwithstanding the foregoing, SAAM shall be deemed to have paid annual
moorage for a vessel NTE 50 feet overall 1 or the term of the Agreement in
consideration for construction and mainte of the Floating Dock, for so long as
SAAMS (a) remains in compliance with eem and (b) maintains insurance as
required by the City for vessels carrying s fo
r their use of the Floating Dock
compensate SAAMS for its
. event exceed $5.00 per
4.3
User Fees. SAAMS is permitted to charge other
at any time during the term of this Agreement,
construction, maintenance, and operation expenses, but
passenger.
4.4
Sheet Pile Breakw
satisfaction by
condition.
SAAMS shall repair the sheet pile breakwater to the City's
2006, and shall maintain it thereafter in good and safe
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, D RIGHTS OF ACCESS
5.1 Utilities. SAAMS, at S cost and expense, may provide for the extension of
public utilities to the Tidel fficient for SAAMS intended operations. In so doing,
SAAMS shall comply with City regulations and requirements and the tariffs of the
affected utilities, with respect to the construction of those utilities. The City agrees to
cooperate and assist SAAMS in SAAMS planning and engineering of those
improvements. All construction will be in compliance with the International Building
Code and other codes of technical regulation as adopted by the City. Utilities constructed
by SAAMS within the public rights-of-way or within public utility easements will
i' normally be accepted and maintained by the City or utility companies may be used to
serve other customer's of the utility without payment of fees or reimbursement of
construction cost to SAAMS. However, this does not preclude several customers from
agreeing to share the cost of constructing a utility to serve their facilities. The City or
other utility company may determine that it would be to their benefit to oversize the
utility or install special fittings or equipment in order to serve other existing or future
users. The additional costs of such over sizing shall be borne by the City or other utility
company. Such costs shall be limited to the supplier's cost of the additional fittings,
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 7 OF 13-
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equipment, direct labor, and equipment costs to complete the installation. The costs of
oversizing pipe or electrical conduit shall be limited to the difference between the
supplier's price to provide the size required to serve its facility and the price of the
oversized material required by the City or utility company.
SAAMS shall not be entitled to any refund, rebate, or payments from City for any rent,
investment, or costs incurred by SAAMS with respect to any required permits for
construction or operation of SAAMS facilities on the Tidelands, it being the intent of the
parties that the cost and risk of obtaining required permits solely costs and risks
undertaken by SAAMS.
ARTICLE 6 - CONSTRUCTION
the Agreement is
ock, gangway,
ssary and
6.1
Project. The definition of "Project" as described in Se ion 1.1.
hereby amended to include the Floating Dock which means the floa
supports, utilities, ladders, fire and safety equipment and all equipm
proper for their use.
6.2 Improvements on Tidelands. SAAMS shall have the right and responsibility to plan,
engineer, construct, transport, 1, situate, secure, equip, repair, refurbish, and
maintain, the Floating Dock on ds in accordance with all applicable laws,
. ordinances, rulings of courts and ental bodies, including the Americans
with Disabilities Act, and subject to t s:
a) SAAMS shall cause the Floatin
the Tidelands by July 1, 2006 and the s
satisfaction by October 31, 2006.
t of any such construction, reconstruction, demolition, or of any changes,
vements, shall be borne and paid for by SAAMS.
shall at all times be kept free of mechanic's and materialmen's
d)
and a site
prior to co
pply the City with a copy of all building plans and specifications
for the Property and Floating Dock at least ten (10) working days
ent of construction.
e) On completion of the improvements, SAAMS shall provide the City a copy of an
as-built survey depicting the Floating Dock as completed.
f) Any general contractor employed by SAAMS shall be appropriately bonded by
use of performance and labor and material payment bonds in the customary form when
cost of the work is equal to or exceeds $50,000. Copies of all such bonds shall be
furnished to the City at least ten (10) working days prior to commencement of
construction. If the cost of the work is less than $50,000.00, if no performance and labor
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 8 OF 13-
/~
and material bonds are provided by SAAMS, SAAMS shall provide the City, any
necessary assurance or guarantees that the contemplated work will be performed by the
general contractor or by SAAMS and shall not proceed until the City has provided
written notice of acceptance of such assurances or guarantees.
g) The City may, as contemplated by Alaska Statutes, give notice of non-
responsibility for any improvements constructed or effected by SAAMS on the Property.
h) SAAMS shall comply with all federal, state and local statutes and regulations
with respect to such construction including any required finding by the City Council of
Seward that such action is in the public interest.
6.3 City Review of Construction. The City s have the right to review initial plans,
including those supplied to the City unde n 6.2"1 bove, and any future changes or
additions to SAAMS facilities on the Ti . g the design thereof prior to
the commencement of construction. The City right to comment upon that
design and to require SAAMS to make reasonab ges so as to avoid interference
with public operations, but the exercise of these righ not imply any obligation to
do so nor any obligation to do so in a particular w S shall construct the
Floating Dock in accordance with final design specificati eviewed by the City. The
City's representatives may monitor the work and shall ave access to the site at all
reasonable times. S shall be solely responsible for completing all improvements
according to S and specifications and shall bear all risk, responsibility, and
liability for 'ng the Tidelands before construction and to place all
improvem y without encroaching upon any easements, rights-of-way,
or setback requir shall obtain the usual and customary performance
guarantees from its c shall be named as an additional insured.
OF DEFAULT AND CITY'S REMEDIES
7.1
The following shall be consi
8.1.11:
d additional Events of Default under Agreement Section
a) Failure by SAAMS to construct, in accordance with Article 6 hereof, a Floating
Dock on the Tidelands by July 1, 2006.
b) Failure by SAAMS to repair, in accordance with Article 6 hereof, the sheet pile
breakwall by October 31, 2006.
c) Failure by SAAMS to replat the Tidelands, in accordance with Section 1.3 hereof,
by October 31, 2006 (90 days from the effective date of this Lease Amendment).
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 9 OF 13-
/7
7.2 For any Event of Default described in this Lease Amendment, the City may exercise all
remedies in Agreement Section 8.2, either for the entire Agreement and Property, or, at
the City's option, for the Tidelands and Lease Amendment.
ARTICLE 8 - PERMITS AND ENVIRONMENTAL CONCERNS
8.1 Permits and Reporting by Other Governmental Agencies. SAAMS shall obtain all
permits or approvals required by any applicable law or regulation. Copies of all such
permits shall be provided to the City prior to SAAMS's commencing work under this
Lease Amendment. SAAMS shall comply, and shall remain in compliance during the
term of the Agreement, with all stipulations, requirements, and conditions, within its
power to perform, of any permit of any governmental agency having jurisdiction with
regard to the Property, the Tidelands or the Floa' g Dock, including but not limited to
the Army Corps of Engineers, U.S. Coast G ,p the Seward Planning & Zoning
Commission. SAAMS shall promptly m I reports to any federal, state or local
government or agency required by any p r En nmental Law, including reports
of any spill or discharge of Hazard S accepts all risk and
responsibility for trash collection, waste oil c compliance with all laws,
regulations and ordinances applicable to the Floati k. The City Manager may order
SAAMS to immediately cease any operations or acti n the Tidelands if the same is
being carried out without necessary permits, if not in c . ce with the terms of any
permit or Environmental Law, or contrary to the Agreeme
8.2 Correspondence
immediately pr
between S
SAAMS op
nd Reports of Environmental Agencies. SAAMS shall
ith copies of all correspondence and notices of all reports
te, federal or local government or agency which relates to
of the Tidelands or the Floating Dock.
PRESENTATIONS
9.1
on-profit corporation in good standing under the laws of
9.2
Nonprofit
will not affe
regulations.
S' obligations and performance under this Lease Amendment
atus as a nonprofit corporation under any State or Federal laws or
'.
9.3 Consent. Attached is a resolution duly adopted by the SAAMS board of directors
authorizing the undersigned to execute and deliver this Lease Amendment on behalf of
SAAMS and stating unequivocally that no consent or approval of any other person is
required to be obtained by SAAMS for the execution, delivery and performance by
SAAMS of this Lease Amendment, and this Lease Amendment constitutes a valid and
legally binding obligation of SAAMS, enforced in accordance with its terms.
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 10 OF 13-
Ii
ARTICLE 10 - MISCELLANEOUS
. .
All other terms and conditions of the Agreement remain in full force and effect. The
Agreement is amended consistent with this Lease Amendment. Lessee's budgets, reports,
maintenance plans and all other obligations related to the operation of SAAMS d/b/a the
Alaska SeaLife Center operations, the Property and the Project, are expanded to include
the Tidelands and the Floating Dock.
,-
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 11 OF 13-
;0)
IN WITNESS WHEREOF, the parties hereto have executed this document effective
,2006.
DATED this =-=-day.of
,2006.
LESSOR:
CITY OF SEWARD
SAAMS:
SEW ARD ASSOCIATION FOR THE
ADVANCEMENT OF MARINE SCIENCE
d/b/a ALASKA SEALIFE CENTER
Clark Corbridge, City Manager
ATTEST:
(PRINTED NAME)
STATE OF ALASKA
Jean Lewis, CMC
City Clerk
(City Seal)
THIRD JUDICIAL DISTRICT )
THIS CERTIFIES that on this _ day of ,2006, before me, the undersigned, a
notary public in and for the State of Alaska, duly commissioned and sworn as such, personally
appeared , known to me to be the , of the
Seward Association for the Advancement of Marine Science ("SAAMS") and he/she
acknowledged to me that he/she executed the foregoing instrument on behalf of SAAMS d/b/a
Alaska SeaLife Center.
..
IN WITNESS WHEREOF, I hereunto set my hand and seal.
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADY ANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 12 OF 13-
~o
"
STATE OF ALASKA
)
) ss.
)
THIRD JUDICIAL DISTRICT
Notary Public in and for Alaska
My Commission Expires:
THIS CERTIFIES that on this _ day of , 2006, before me, the undersigned, a
notary public in and for the State of Alaska, duly commissioned and sworn as such, personally
appeared , known to me to be , of the City
of Seward, Alaska, and he/she acknowledged to t he/she executed the foregoing
instrument on behalf of the City of Seward.
IN WITNESS WHEREOF, I hereunto se
Notary Public d for Alaska
My Commisso n Expires:
LEASE AMENDMENT NO.5 between CITY OF SEWARD, ALASKA and SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a Alaska Sealife Center
APRIL 2006
-PAGE 13 OF 13-
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March 22, 2006
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LnJ MAR 2 .4 lOti I. J
Cheryl Rawls Brooking, Esq.
Wohlforth, Johnson, Brecht, Cartledge & Brooking
900 West 5th Avenue, Suite 600
Anchorage, Alaska 99501
Wohlf(lrth~ Johnson, ~t.
Certiedge & BrQOklng
RE: RepresemaLion of SAAMS
Dear Cheryl:
.. . ,"
1 am enclosing a copy of a letter dated Marchl S. 2006, that I received from Mr. Clark
Corbridge, the Seward City Manager. I thought it besl to respond to this le~er through you as the
City's .counsel.
1. Introdllctiolf and BadgroulUf.
In his Jetter, Mr. Corbridge states that the City of Seward ("City") "questions the
involvement ofeithcr [me] or [my] firm in lighL ofLhe Alaska Rules ofProfcssional Conduct 1.9
and l.lO(a)" in representing Seward Association for the Advancement of Marine Science
("SAAMS") "'wiLh regard to the City's Seatife Center inmattcrs involving the City...[i]n light
of [my] prior representation of 1h~ Cily and [my] intimate Involvement and preparation of the
governing documents on behalf of the City..."
.
.
Before discussing the Rules thal lhe letter cites, some history would be helpful. As you
know, before joining Birch, Honon, Bittner and Cherat in July of 1996, 1 was a partner at your
fum, then known as Wohlforth, ArgctsInger, Johnson & l:3recht. and the City was a client ofilial
film. Berween abou11994 anti July of 1996, l.represented the City in two mallers that involved
SAAMS. One conct:IDcd the negotiation of the Agreement between the City and SAAMS for the
Financing, Lc~c, Construction, Operation, and Maintenance of the Alaska ScaLifc Center, dated
April 28, 1995 ("Operating Agreement"). The other concerned the issuance by the Cily of 18.'(.-
exempt revenue bonds to fmance part of thc cost of constructing the Alaska SeaLife Center. .
..
Not long after joining Birch. Honan, Binner and t."herOt in July of 1996. 1 was asked to
perfonn work for SAAMS, some of which involved SAAMS' relationship with the City. Before
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undertaking this work, I sought the consent of Mr.' RO,nald, Oanini, who then was the City
Manager. Mr. Garzini responded that the City would nOl object to my rcprcscnlaLion of
SAAMS, and 1 understood his response to extend to work thatinvolved SA,AMS' rc18tionship
with the City. I believe that Mr. Garzini provided a written confinnation of this response;
however I have not been able to locate a copy in ariy of the pertinent SAAMS files at ouroffice.l
However, I spoke to Mr. Ganini' on Monday, March 20, concerning this matter, and his
recollection of the matter, although not as specific, is consistcot with mine. If you wish to
discuss the malter with Mr. GlU7.ini yourself, you may call him at (760) 202-8743 until April 7,
and thereafter at (541) 420-2045.
Since about 1997, I have represented SAAMS in variousmanCt'S, including matters
involving SAAMS' relationship with the Cily, with the City's knowledge and withoul' any
objection from the City. As an example, I have enclosed a copy of correspondence tTom you as
the City's counsel in ! 999 concerning an amendment to the Operating Agreerrlclll: This letler
demonstrates that The City and its counsel were aware that' I repreSented SAAMS in connecTion
with the preparation of this amendment, ,and that the City made 110 objectlonto my doing so.
The following discusses each o[Thc Rules that Mr. Corbridge cited in his lcner.
2. Ala.<;ka R,de of Professional Conduct 1.9(a).
C'onducl 1.9(a) provides:
Alaska Rule of ,Professional
. '
, '
, (a) A lawyer who has formerly rcptescntcd a client in 'Jl .
matter shall not' thereafter represent another person in the slime or
a substantially.related matter in which that person's interests are
materially adverse to we interests of the former client unless the
fonner client consents after consultation. (Emphasis added)
This Rule thus requires tllree elemenlS lobe present before it would preclude me .from
representing SAAMS in a matter concerning SAAMS' relationship to the City. first, the matter
mUSt be "the same tas] or a substantially related ltoJ" to a matter in which I formerly represented
the City. Second, the interestll ofSAAMS and the City mu.'it be "materially adverse." 'third, the
Cily must not have consented to my representation of SAAMS in the ma.tter. .
The Matters Are Not the Same or Substantially Related. . As 1 stated above, I
reprcst.-nled the City in two maUt.TS thin involved SAAMS, the negotiation of the Operatins
Agreement, and the City's issuance of bonds to finance part of the eost of constrUcting the!
I It cerminly is my pmcacc 10 dOCUJnenl con~n~ afmis son. I requcst that the CitY rc:vit:w also llny pertinenl City
Manager tiles that ~ City has TlllaiDed fot the period from July 1996 to June 1997 for COITlllipondence 011 this
subjl:C'L
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"~' .~, Cheryl Rawls Brooking. Esq-
, :i Wohlfol1h. Jolmson, Brech4 Cartledge & Brooking
Ii ' Maruh 22, 2006 -
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Alaska SeaLife Center. The bonds issued by the City to linance the Alaska SeaLife Center were
rctirecl or defeased in the spring of 2001. At that time the documents under which SAAMS
assumed obligations related to the bond issue ceas~d to have any further effect. ! therefore
assume that the "governing documents" to which your letter refers do not include documents
related to the bond issue, and that your letter is directed only toward my prior representation of
the City in the negotiation of the Operating Agreement in 1994 and 1995.
1 recently have bcen represennng SAAMS in three matters concerning SAAMS'
relationship with the City:
. SAAMS' request to lease from the City tidelands adjacent to the Alaska Sealife Center
site for a floating dock and other uses.
. 'fhe City Planning and Zoning Commission's -consideration of an amendment to
SAAMS' conditional use for the Alaska SeaLife Center to provide for the onshore
facilities that SAAMS will constrUct as pan of the floating dock project
. Y OUT March lO, 2006 letter to Tylan Schrock.; Executive Director of SAAMS,reqliesLing
information about SAAMS' acquisition of two parcels of real property in downloWD
Seward.
I address each of these matters below.
The Tu/eJands Leas~ Request. SAAMS' tidelands lease request is neither tb.e same Dot
substantially related to the negotiation of the original Operating AgreemenL. It involves different
property of the City, and has been made under the Cit)"sgeneral leasing policy. SAAMS'
request for the tidelands lease does not rely on any provision ,of the Operating Agreement,-
beyond the undisputed fact that SAAMS is the lessee of the adjacent uplands.
TIle ConditiolUll Use PerIlLa Amendment. The conditional use permit amendment also
is neither the samc nor subStantially related to thc ncgotiation of the original Operating
Agreement. It is purely a land use regulatory maner, and the City's zoning regulations were not
.at issue in the negotiation of the original Operating Agreement. No tcnn of me .operating
Agreement bas been at issue in connection with the Planning and Zoning Commission
consideration of the conditional use amendment.
~
..
The Request for ProperlY A cqllisition Informatio"~ BaSed on the information available .' .
to me, T do not see how the City could conclude that the requests for infoIDlatlon in 'your
March 10, 2006 letter involve' a matter that is the same or substantially related to the negotiation
of me original Operating Agreement.. After again reviewing the Maroh 10,2006 letter I still do
nol understand the legal basis that the City is asserring for its request for information. The letter
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Mar~28-06 0~:15p. From-XEROXBB6
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T-167 P. 006/01 0 F-373
BJRCH, HORTON. BI lINER AND CHEROT
^ PRorESSIONAL CORPORATION
Cheryl Rawls BTooking, Esq.
Wohltbrth, Johnson, Brecht, Carrledge & Brooking
March 22, 2006
Pal,rc .4-
refers lO "federal funds...earmarked for the City's facility," and to several sections of the City
Codeconeerni11g the acquisition of real propeny by the City. However, the letter does not cite Or
rely on any provision of the Openlling Agreement as the basis fOT the infoimation request.
In At Least Two Marters, SAAMS' and the City's /ntere.m Are Not Mtzterill/ly Aberse.
The. element of material adversity is absent in at least the first two of these three matters.
Additional facts must be developed to copfum that adversity is present in the third maner.
The Tidelands Lease Request. SAAMS made iu; lidelands lease request under me City's
leasing policy. lam not aware that SAAMS has Laken any position adverse to the interest of the
City concerning the application of the leasing policy to SMMS' request
The Conditional Use Pennir Amendment. The .Planning and Zoning Commission has
considered and approved the conditional use permit amendment. The.positionof the City staff
on the conditional use permil amendment was essentially neutral. J see no adversity betWeen
SAAMSand the City on this issue.
The Requestfor Property Acqllisitioll l1ifonnatum. As I stated above, the legal basis for
the City's request for information is not clear to me. It may be that the parties will find thatlhey
have adopted conflicting intetprelations of SMMS' obligations concerning the property
acquisitions. However, the existence of adversity really cannot be confumed until the City
clarifies the legal basis for its position.
Tile City hilS Consented to My Representation (Jf SAAMS In Marten Concerning
SAAMS'Relotionsnip with the City. I have described above how the City has consented to my
representation of SAAMS in mancrs concerning SAAMS' relationsbip with the City.. This
consent has been both express, by Mr. Garzini after I joined Birch. lionon,. Bittner and Cherot, .
i. and implied by.a course of conduct spanning me many yem during wbich I have represented
SAAMS in such mattets .with the City's knowledge and without any objection :lTom the City;
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3. A/osko Rule of Professional Cvndllcc 1.9(b)~ . Alaska Rule. of Professional
Conduct 1.9(b) provides:
(b) A lawyer shall not knowingly represent a person in the
SU111e or a ...llh.vtlUll;olly related matter in which a firm with which
thelawycr formerly was associated had previously represented a
client
(1) whose interests are materially adverse to that person;
and
(2) about whom the lawyer had . acquired information.
protected by Rules 1.6 and I.9(c) that is material LO the matter,
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March 22, 2006
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llIl1ess the former client consentS after consultation. (Emphasis
added).
l".
As indicated by the emphasized language in'the quotation above., the premise for the operation of '
Rule 1.9(b), that the current representation be "in Lhe same or a substantially related matter," is
the same as for lhe operation of Rule 1.9(a). Thus, Rule 1.9(b) does not apply to my pres~t
representation of sAAMS in matters concerning SAAMS' relationship with the City for the
reasons that I have discussed above in my explanation of why Rule l.S~(a) does not apply to that
representation.
"
.
Moreover, another premisc for the operation of Rule 1.9(b) to my present representation
ofSAAMS also fails. Rule 1.9(b) would apply only ifl had "acquired [confidential] inform.ation
[aboutthe CitYl...that is material to the [currentJ maner..." 1 know of no confidential allomcy-
client communications that I received from the City in 1994 and 1995 in connection with the
negotiation of me Operating Agreement The record will demonstrate that the: City's objecli"es ,
and concerns i)1 negotiating the terms of the Operating Agreement in 1994 and 1995 were not.
confidential. On 1.he contrarY. They were the subject of exhaustive public discussion in various
forums including City Council meetings and work sessions.
4. Alaska Rule of Professional Conduct J.9(c).
Conduct 1.9(c) provides:
Alaska Rule' of Professional
(0) A lawyer who has formerly represented a client in a
matter or whose present or former firm has formerly represented a
client in a matter shall not theroaftcr: .
(1) use a confidence or secret relating to the representation
to the disadvantage of the foriner client except as Rule 1.6 or Rule,
. 3.3 would permit or require with respecl to a client.. or when the
confidence or secret has become generally known; or
(2) reveal a confidence or sc:cret relating to the
TepresClltation except as Rule 1.6 or Rule 3.3 would pennit or
requirc'with respect to a Client. .
'.
As slaled above in the discussion of Rule 1.9(b}" I know of no confidential auomcy-clicnt
communications that I received fTom the City in '1994 and 1995 in connection with the
negotiation of the Operating Agreement. Thus. Rule 1.9(c) does not apply to my current
representalionofSAAMS in matters concerning SAAMS'relationshipwith the City.
Alaska Rille of Professional Condllcc 1. J O. Alaska Rule of Px:ofessionaI Conduct 1.10
would operate to disqualifY other membcrs of my firm from representing sAAMS in matters
concerning SAAMS' rc:Jationship with the City if I were disqualified p-om doing so' Wlder
Rule 1.9. I have outlincd above the reasons why Rule 1.9 docS not disqualify me from my
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Page 6
present representation of SAAMS in maners concerning SAAMS' relationship with the City.
For the same reasons, Rule 1.10 doeS not operate tq disqualify other members afmy firm fTom
representing SAAMS in such maners.
TFKIcmm
.Em:Josures
. ".'1=lWIVVlFN!;RAlITFK7722 DOCI
Yours truly,
. BIRCH, HORTON, BITTNER and CHEROT .
~f~
Thomas F. Klinkner
,~
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... SEWARD ASSOCIATION FOR THE ADVANCEMENT OF
MARINE SCIENCE D/B/A ALASKA SEALIFE CENTER
INFORMATION PACKET
1. LETTER FROM THE CITY REQUESTING INFORMATION;
2. SEC. 344 (TITLE III-GENERAL PROVISIONS, CONSOLIDATED
APPROPRIATIONS ACT, 2005);
3. DEMOLITION PERMIT ESCROW AGREEMENT;
4. AGREEMENT FOR FINANCING, LEASE, CONSlRUCTlON, OPERATION
AND MAINTENANCE OF THE ALASKA SEALIFE CENTER;
5. FEASIBILITY STUDY FOR THE ALASKA SEALIFE CENTER
DESCRIPTION OF THE ALASKA SEALIFE CENTER BOARD AND
SAAMS;
6. ALASKA SEALIFE CENTER BUSINESS PLAN DESCRIPTION OF THE
ALASKA SEALIFE CENTER BOARD AND SAAMS;
7. ARTICLE 5. TIDELANDS IN THE CITY OF SEWARD CODES;
8. PLANNING AND ZONING MARCH 7,2006 PACKET INFORMATION
WIlli THE TIDELANDS LEASE PROPOSAL FROM SAAMS;
9. LEASE AMENDMENT NO.5 BETWEEN THE CITY OF SEWARD, ALASKA
AND THE SEWARD ASSOCIATION FOR THE ADVANCEMENT OF
SCIENCEID/B/N ALASKA SEALIFE CENTER;
10. SUBLEASE AGREEEMENT BETWEEN SAAMS AND KFf.
* For additional information or a full copy of any of the referenced documents, please
complete a public information request.
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.. CITY OF SEWARD
Po. BOX 167
SEWARD. ALASKA 99664-0167
" Main Office (907) 224-4050
· Police (907) 224-3338
· Harbor (907) 224-3138
· Fire (907) 224-3445
· Fax (907) 224-4038
March 10, 2006
Mr. Tylan Schrock
Executive Director
Alaska Sealife Center
P.O. Box 1329
Seward, Alaska 99664-1329
Hand Delivered and USPS Certified
RE: Request for Property Information
Dear Mr. Schrock,
The purpose of this letter is to request information about the' proposed purc~ of the .
property located across the street from the Alaska SeaLife Center, commonly known as'
the Arcade Building property. I would like to work with you to make sure that proper
procedures are followed and all necessary approvals are sought, to avoid future problems
and possible allegations of impropriety.
According to the Demolition Permit, the sale of the Arcade Property is expected to close
by March 31, 2006. The City Administration recommends that you postpone the closing
in order to provide sufficient opportunity for involvement by the Seward City Council, as
required by the Seward City Code.
0-
Since the Alaska SeaLife Center is a City-owned facility, the purchase of the property is
subject to the provisions of the Seward City Code and the applic8ble conditional use
permit. Among other things, such a purchase is subject to approval by the Planning &
Zoning Commission and the City Council. Although the City has not yet received formal
notice from SAAMS of its intent to expand the SeaLife Center by using federal funds to
purchase the arcade property, it is our understanding that federal funds have been
earmarked for the City's facility. In accordance with Seward City Code sections
7.05.120, 7.05.125 and 7.05.135, the acquisition ofreal property by negotiation requires a
public hearing and approval by the Seward City Council.
In a meeting held at City Hall on February 15, 2006, attended by you and Darryl
Schaefenneyer, you mentioned that SAAMS purchased the depot building from Chugach
Alaska Corporation in a prior year for use as part of the SeaLife Center. The City hereby
dq
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CITY OF SEWARD
p.o. BOX 167
SEWARD. AlASKA 99664-0167
March 10, 2006
Page Two
o Main Office (907) 224.4050
. Police (907) 224-3338
. Harbor (907) 224-3138
. Fire (907) 224-3445
. Fax (907) 224-4038
requests all relevant information on the depot building property purchase, for the purpose
of seeking Council ratification of that pUrchase.
I look forward to receiving notice that the closing has been postponed and the requested
information as soon as possible. '
Sincerely,
{PJ (;J~
Clark Corbridge
City Manager
CITY OF SEWARD ,
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. Section 344 of the Department of the Interior and Related Agencies Appropriations Act,
2005 as contained in division E of the Consolidated Appropriations Act, 2005 (Public
Law 108-447) has been amended by Section 438 ofP. L. 109-54 and now reads as
follows:
l>J
SEC. 344 (Title III - General Provisions, Consolidated Appropriations Act, 2005)--
Notwithstanding any other provision of law and using funds previously appropriated for
such purpose under Public Law ~06-291 ($1,630,000) and Public Law 108-199
($2,300,000), the National Park Service shall (1) not later than 60 days after enactment of
this section purchase the parcels of real property in Seward, Alaska identified by Kenai
Peninsula tax identification numbers 14910002, 14911033, 14913005, and 14913020,
that have been selected for the administrative complex, visitor facility, plaza and related
parking for the Kenai Fjords National Park and Chugach National Forest which shall
hereafter be known as the Mary Lowell Center; and (2) immediately transfer to the
Alaska Sea Life Center for various acquisitions, waterfront improvements and
facilities that complement the new Federal facility, any remaining balance of
previously appropriated funds.
Demolition Permit Escrow Agreement
IT IS HEREBY AGREED, That Centennial Group, LLC, an Alaska limited liability company ("Principal") is
held and firmly bound unto the City of Seward ("Obligee") in the sum of SEVENTY -FIVE THOUSAND
DOLLARS ($75,000.00) for purposes and as described herein.
WHEREAS, in order to obtain a demolition permit, the Principal has agreed to make certain repairs. and
improvements as set forth in the attached February 21, 2006 letter from the City of Seward (Tom Shepard) to
Centennial Group, LLC (hereinafter referred to as the "Contract").
NOW, THEREFORE, the condition of this obligation is such that if the Principal shall make the repairs andlor
construct the improvements described in the Contract on or before June 2,2006 (or within such further
extensions of time granted by Obligee in writing), then this obligation shall be void, otherwise it shall remain
in full force and effect. This obligation is subject to the following conditions:
1. This Escrow Agreement runs to the benefit of the named Obligee only, and no other person shall have
any rights under this Escrow Agreement. No claim shall be allowed against this Escrow Agreement after the
expiration of one year from the date set forth in the preceding paragraph, or one year from the end of the latest
extension oftime consented to in writing by. Obligee, whichever occurs last. If the limitation set forth in this
Escrow Agreement is void or prohibited by law, the minimum period oflimitation available as a defense in
the jurisdiction of the suit shall be applicable.
3. Principal and Obligee agree that Principal will provide for the surety described herein and in the
Contract by placing $75,000.00 in escrow with First American Title of Alaska, any needed portion of which
shall be released to Obligee upon its written demand to make the repairs and improvements described in the
Contract if Principal fails to make such repairs and improvements to the reasonable satisfaction of Obligee by
the dates set forth herein.
4. Obligee acknowledges that Principal is a party to a binding purchase and sale agreement of the Arcade
Property to the Seward Association for the Advancement of Marine Science (''SAAMS'') which stipulates a
closing by March 31, 2006. Principal and Obligee agree to evaluate the remaining repairs or improvements as
of the date upon which the foundation demolition and replacement fill have been completed (probably around
March 20, 2006). Provided that SAAMS agrees thereafter to the reasonable satisfaction of Obligee to fully
assume responsibility for any remaining repairs or improvements required by the Contract and provides
sufficient bonding in favor of the Obligee, Obligee agrees that this Escrow Agreement shall immediately
terminate. .
5. Upon completion of Principal's obligations to the Oligee's satisfaction, all escrowed funds shall be
immediately returned to Principal.
This Escrow Agreement is executed and becomes effective this .ll. day of March, 2006.
CENTENNIAL GROUP, LLC
By: (l'l~ (Vt, ~
---c.h.-rrt vel,. M c. (q Ix.
Its: MeMhe.r
CITY OF SEWARD
By: a:T~
Its: $7,,;. _~ fi1A.. .. ""r or
j ,.
First American Title of Alaska
BY:~-~~.
Its: ~--~
Attest:
City Clerk
3).
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WI:
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AGREEMENT FOR FINANCING, LEASE,
CONSTRUCTION, OPERATION AND MAINTENANCE
OF THE ALASKA SEALlFE CENTE~
Dated: April 28, 1995
BY AND BETWEEN:
THE CITY OF SEWARD
and
SEWARD ASSOCIATION FOR THE ADVANCEMENT
OF MARINE SCIENCE
33
TABLE OF CONTENTS
, .IAl! pOCUMENT
1. AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, OPERA-
TION AND MAINTENANCE OF. TIlE ALASKA SEAUFE
CENTER, dated April 28, 1995, by and between the CITY OF '.
SEWARD and the SEWARD ASSOCIATION FOR TIlE AD-
Y ANCEMENT OF MARINE SCIENCE, d/b/a ALASKA SEALIFE
CENTER (the "Agreement")
Exhibit A Legal Description of Property
Exlubit B Disbursement Request Form (Construction Fund
No.1)
Exlubit C Disbursement Request Form (Construction Fund
No.2)
Exhibit D Renewal and Replacement Budget
Exhibit E Environmental Assessment Reports
2. MEMORANDUM OF LEASE, dated April 28, 1995, between the CITY OF
SEWARD and the SEWARD ASSOCIATION FOR TIlE AD-
V ANCEMENT OF MARINE SCIENCE
. 3. TInE INSURANCE POllCY of TRANSALASKA TITLE INSURANCE
AGENCY, INC., Policy No. J 321733, issued as of April 28, 1995
4. INDEMNIFICATION AGREEMENT, dated April 28, 1995, between the
CITY OF SEWARD and the SEWARD ASSOCIATION FOR 1HE
ADVANCEMENT OF MARINE SCIENCE, relating to the relocation
of the Youth Center Program
5. CITY OF SEWARD, ALASKA, Resolution No. 95-030, Decommissioning the
Fourth Avenue Dock
6. CERTIFICATES OF INSURANCE
7.
RESOLUTION 95-001 OF TIm SEWARD ASSOCIATION FOR TIlE
ADY ANCEMENT OF MARINE SCIENCE authorizing execution of
Agreement
-.
8. INCUMBENCY CERTIFICATE OF TIlE SEWARD ASSOCIATION FOR
TIlE ADVANCEMENT OF MARINE SCIENCE
,
TABLE OF CONrENI'S
CLOSING: CITY OF SEWARD, AlASKA a:
SEWARD ASSOCIATION FOR nm ADVANCEMENT
OF MARINE SCIENCE
PAGE 1
3cf
9. PURCHASE AGREEMENT between the SEWARD ASSOCIATION FOR
. THE ADVANCEMENT OF MARINE SCIENCE as Buyer. and
NORTIIERN STEVEDORING & HANDLING CORPORATION as
Seller, dated March 20, 1995
.. 10. BILL OF SALE from NORTIIERN SlEVEDORING & HANDLING
CORPORATION to the SEWARD ASSOCIATION FOR THE
ADVANCEMENT OF MARINE SCIENCE
11. TERMINATION OF LEASE AND DOCK UCENSE AGREEMENT
between the CITY OF SEWARD, AlASKA and NORTHERN
STEVEDORING & HANDLING CORPORATION, dated April 28,
1995, recorded in Book 76, at Page 783, Seward Recording District
12. RESOLUTION OF NORTIiERN STEVEDORING & HANDLING
CORPORATION authorizing the Purchase Agreement and Bill of Sale
with the SEWARD ASSOCIATION FOR TIlE ADVANCEMENT
OF MARINE SCIENCE
13. INCUMBENCY CERTIFlCATE OF NORTIlERN STEVEDORING &.
HANDLING CORPORATION
- 14. COOPERATIVE AGREEMENT between the STATE OF ALASKA,
ALASKA DEPARTMENT OF FISH AND GAME and the CITY OF
SEWARD for the Construction, Operation and Maintenance of
Research Infrastructure Improvements at the Alaska SeaLife Center
.in Seward Alaska, recorded in Book 76; at Page 788, Seward Record-
ing District
15. CLOSING INSTRUCTIONS to TransAlaska Title Insurance Agency, Inc.
16. ESCROW INSTRUCIlONS, DISCLOSURE STATEMENT, and SETILE-
MENT STATEMENT
F:\S03361\1S\KAB0947
.
TABLE OF CONI'ENTS
CLOSING: C11Y OF SEWARD, AlASJCA &
SEWARD ASSOCIATION FOR THE ADVANCEMENT
OF MARINE SaBNCE .
PAGB 1
31"
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e
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AGREEMENT FOR FINANCING, LEASE,
CONSTRUCTION, OPERATION AND MAINTENANCE
OF THE ALASKA SEALlFE CENTER
Dated: April 28. 1995
BY AND BETWEEN:
THE CITY OF SEWARD
and
SEWARD ASSOCIATION FOR THE ADVANCEMENT
OF MARINE SCIENCE
..
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TABLE OF CONTENTS
1. Definitions and General Provisions
1.1 Definitions. . . .
1.2 General Definitions
2. Representations and Warranties
2.1 Representations and Warranties of city
2.1.1
2.1.2
2.1.3
2.1.4
2.1.5
2.1.6
2.1.7
2.1.8
Good Standina . .
Authorization . .
Consent. Approval
No Restrictions on Aareement
No Conflicts with Other Aareements
Litiaation . . . . .
Enforceability . . .
Effect of Certificate
2.2 Representations and Warranties of SAAMS
2.2.1
2.2.2
2.2.3
2.2.4
2.2.5
2.2.6
2.2.7
2.2.8
2.2.9
Good Standina . .
Authorization . .
Consent. Aporoval
No Restrictions on Aareement
No Defaults: No Other Leases
No Conflicts with Other Aareements
Litiaation . . . . .
Enforceability . . .
Effect of Certificate
3. Lease of Property
3.1 Term
3.1.1
3.1.2
Practical Life of Proiect
Limitation of Term
3.2 Rental Payments . . .
3.3 Existina Improvements
3.3.1
3.3.2
3.3.3
Utilities .
Fourth Avenue Dock
Relocation of Youth Center
3.4
Use: Limitations on Use
3.4.1
3.4.2
Use. . . . .
Cancellation of Insurance
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3
9
10
10
10
10
11
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11
.12
12
12
12
13
13
13
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13
14
14
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15
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3.4.3
3.4.4
3.4.5
3.4.6
Compliance with Laws
Compliance with Fundina
Space for EVOS Research
Waste: Nuisance
. . . . . .
Aqreements
, .
3.5 Mechanics' Liens
3.5.1
3.5.2
3.5.3
. . .
Reimbursement of City
Notice of Non-Responsibility
Notice of Completion
3.6 Utilities and Services
3.7 Destruction/Restoratio~
3.7.1
3.7.2
Total or Partial Destruction: Obliqation
to Restore . . . . . . . . . . . . .
City Not Obliqated to Restore proiect
3.8 Condemnation
. . . . . . . . .
3.8.1
3.8.2
3.8.3
3.8.4
Riqhts and Obliqations of Parties
Governed by this Aqreement
Total TakinQ'
Partial TakinQ'
Payment of Award
4.
Construction of proiect
and Specifications
4.1
4.2
4.3
Construction Drawinqs
Desian Review . . . .
Pro;ect Construction
4.3.1
Compliance with Laws
4.4 Construction Manaqer
4.5
4.6
4.7
4.4.1
4.4.2
Notice to City
Required of Construction Manaqer
proiect BudQ'et
Construction Schedule
Construction Reports
4.7.1
4.7.2
4.7.3
"
Monthly Reoorts
Annual Reoorts
Final Report
4.8 Procurement of Construction contract(s)
- ii - 3g
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19
19
20
20
21
21
22
22
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, 25
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26
27
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4.8.1
4.8.2
4.8.3
. --
Procurement . . .
Required Contract Terms
Pro;ect Records .
4.9 Conditions of Commencement of Construction
4.9.1
4.9.2
4.9.3
Fundina Source Approvals
Permi ts . . . . . . . .
Construction Contracts
4.10 Inspection Riahts . . . . . .
4.11 Disbursement Procedures . ..
4.11.1
4.11.2
4 .11. 3
Construction Funds
Disbursements From Construction Fund
No.1. . . . . . . . . . . . . . . .
Disbursements From Construction Fund
No.2. . . . . . . . . . .
4.12 Retention for Administrative OVerhead
4.13 Final Acceptance . . . . .
4..13.1
Unexpended Funds
4.14 Additional Construction
. .
4.14.1
4.14.2
Citv Approval of Proposed Construction
Conditions of Construction
4.15 As-Built Drawinas .
5.
Manaaement and Operation of Pro;ect
5.1
5.2
5.3
5.4
5.5
5.6
Use. ......
PaYment of Expenses
Inspection of Premises
Compliance with Laws
Operatina Plan ..,
proiect Operatina Budaet
5.6.1
5.6.2
5.6.3
5.6.4
Revisions to Pro;ect Operatina Budaet
Renewal and Replacement Budaet
Cash Flow pro;ection . . .
Budaeted Expenditures in Excess of
Revenue
5.7 Maintenance Plan
5.7.1
5.7.2
Updatina of Plan
COpy of Plan to City
- iii - 3q
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31
31
31
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34
34
35
35
35
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37
37
37
37
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40
40
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5.8 Pro;ect Operatina Funds
5.8.1
5.8.2
5.8.3
5.8.4
Revenue Fund
Renewal and Replacement Fund
Termination Fund
Other Special Funds
5.9 Taxes. Assessments. and Other Charaes
5.9.1
Taxation
5.10 public Access to Pro;ect
5.10.1
5.10.2
5.10.3
Public Use of Pro;ect
Public Access to plaza and Bike Path
public Restrooms
5.11 Books: Financial Statements
5 .11. 1
5.11. 2
6 .
Insurance
Books of Record and Account
Financial Statements
. . .
. . . . . .
6.1 Modification of Insurance Reauirements
6.2 Notice to City . . . . . . . .
6.3 Additional Insurance Provisions
7. Conditions Precedent to Aareement.
7.1 Entity Authority . . . . .
7.2 Northern Stevedorina Lease
7.3 Property Platted
7.4 Title Insurance
8. Default and Remedies
8.1 Events of Default of SAAMS
8.1.1
8.1.2
8.1.3
8.1.4
8.1.5
8.1. 6
8.1. 7
8.1.8
8.1. 9
8.1.10
8.1.11
Failure to PaY
Default of Covenants or Conditions .
Compliance with Health and Life/Safety
Codes . . . . . .' ....
Representations or Warranties
Execution. InsolvencY . . .
Filina of BankruptCY Petition.
Admission of Inability to Pay Debts
Appointment of Receiver or Trustee
Assianment for Benefit of Creditors
Dissolution ..
Other Events of Default
. . . .
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42
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42
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48
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8.2 Remedies of the City on SAAMS' Default
8.2.1 Termination . . . . . .
8.2.2 Recover Monies . . . . . .
8.2.3 Enter Property, Take Possession of
Property . . . .
. 8.2.4 Perform Obliaations
.
8.2.5 Specific Performance .
8.2.6 Use of Property
8.2.7 Force Maieure
.
t
8.3 City Events of Default
8.3.1
8.3.2
8.3.3
8.3.4
.8.3.5
8.3.6
Default Under Fundina Aareements
Default of Covenants or Conditions
Representations or Warranties
Execution, Insolvency . . . .
Filina of BankruptCY Petition
Porce Maieure . . . . . . . .
.'
8.4 Remedies of SAAMS on the City's Default
8.5
8.4.1
Terminate Aareement
No Remedy Exclusive
9.
Indemnity and Exculpation
9.1
9.2
9.3
9.4
Limitation of City Liabilitv
Indemnity. . . . . .
Site Conditions . . . . . . .
Environmental Matters . . . .
.'
9.4.1
9.4.2
9.4.3
9.4.4
9.4.5
9.4.6
Knowledae of Hazardous substances
Prevention of Future Releases
Compliance with Environmental Laws
Notice . . . . . . . . . .
Indemnification . . . . . . . . .
Survival of Representations and
Warranties . . . . . . . . .
Discoverv of Hazardous Substances Durina
Construction . . . . .
Pre-Existina Conditions
9.4.7
9.4.8.
10. Sublease or Assianment
10.1
Subleasina
10.1.1
10.1. 2
10.1. 3
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51
51
51
51
52
52
52
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59
10.1. 4
59
Assianment
11. Miscellaneous
60
11.1
11.2
11.3
11.4'
11.5
11.6
11. 7
11.8
11.9
11.10
11.11
11.12
11.13
11.14
F:\503361\lS\LCJ1910
Permitted Encumbrances
Lobbvina . . . . . . .
No Imolied Waiver
Successors in Interest
Notices .....
Parties in Interest
Time of Essence
Headinas . . . . . ..
Law Governina construction of Aareement
Exclusive Forum and Venue
Severability. . . . . . .
Intearation and Modification .
Termination of Grant Aareement
Additional Documents . . . . .
6Q
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61
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61
62
62
62
62
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- vi -
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AGREEMENT FOR FINANCING. LEASE. CONSTRUCTION. OPERATION.
AND MAINTENANCE OF THE ALASKASEALIFE CENTER
THIS AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION,
OPERATION, AND MAINTENANCE OF THE ALASKA SEALIFE CENTER (the
"Agreement") is dated as of the 28th day of April, 1995, and is
entered into by and between the CITY OF SEWARD, ALASKA (hereinafter
called "City"), and the SEWARD ASSOCIATION FOR THE ADVANCEMENT OF
-
MARINE SCIENCE d/b/a ALASKA SEALIFE CENTER, a non-profit Alaska
.
corporation (hereinafter called "SAAMS").
WHEREAS, the City is the owner of certain premises more
fully described in Exhibit "A," attached hereto and made a part M
hereof (the "Property"), on which SAAMS. proposes to construct and "0
...
operate the Alaska SeaLife Center (the "Project"), which will be
-
owned by the City; and
WHEREAS, the City, as owner of the Property, desires that
... -
SAAMS be responsible for the design, construction, operation, and
-
management of the project; and
WHEREAS, the State of Alaska, Department of Administra-
tion, provided municipal grant number 7/94-004 (the "Grant") to the
City, which funds have been and will be used by SAAMS pursuant to
a grant agreement (the "Grant Agreement") between SAAMS and the
City for the planning, design, engineering, and construction of the
Project; and
WHEREAS, the Ci ty and the ALASKA DEPARTMENT OF FISH AND
, GAME are parties to a ~ooperative agreement (the "Cooperative
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
'-13
Page ~
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Agreement") for the construction, operation, and maintenance of
research infrastructure improvements at the Alaska SeaLife Center,
in Seward, Alaska (the "Research Facility"), which will be a
component of the Project; and
WHEREAS, under the terms of the Cooperative Agreement, a
resolution of the EXXON VALDEZ OIL SPILL TRUSTEE COUNCIL; and the
Grant, the City has and will receive monies for the design and
construction of the Project; and
WHEREAS, SAAMS has undertaken to raise funds from private
sources to pay any and all additional costs of completing the
exhibit and habitat components of the project; and
WHEREAS, the City intends to transfer to SAAMS, and SAAMS.
.
intends to assume, all of the obligations of the City with respect
to the Grant and under the cooperative Agreement, except to the
extent this Agreement expressly provides otherwise; and
WHEREAS, the parties intend that this Agreement supersede
and replace the Grant Agreement; 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 property by negotiation and without appraisal of the
fair market value of the Property;
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
____ ____ __ _,," ",T 'Jl<:.'!v:r.. C!12nT.T1='E CENTER
44
Page 2
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NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES and of
the mutual covenants herein set forth, the parties hereto agree and
covenant as follows:
1. Definitions
1.1 Definitions.
The following terms shall, for
all purposes of this Agreement, have the following meanings:
1.1.1
"ADF&:Gn means the Alaska Department
of Fish and Game.
1.1.2
"Agreement" means this Agreement for
Financing, Lease, Construction, 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 recei ved on a total or
partial condemnation.
1.1.4
"City" means the City of Seward,
Alaska.
1.1.5
"Closing" means the date of execution
.. and delivery of this Agreement by the City and SAAMS.
.
1.1.6
"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 by
the City to any condemnor, either under threat of condemnation or
while legal proceedings for condemnation are pending.
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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1.1.7
"Condemnor" means any public or
quasi-public authority, or private corporation or individual,
having the power of eminent domain.
1.1.8
"Construction Contract" means the
contract between SAAMS and the Construction Manager providing for
the construction of the project.
1.1.9
"Construction
Funds"
means
the
separate funds established by the City to hold the amounts trans-
ferred to the City under the Funding Agreements for disbursement to
SAAMS.
1.1.10
"Construction 'ManagerR means an
~ independent firm having a nationwide and favorable reputation and
demonstrated experience in the field of construction engineering or
construction management, and retained by SAAMS to perform the
duties of the Construction Manager under this Agreement.
1.1.11
"Cooperative Agreement" means the
agreement between ADF&G and the City for the Construction of
Research Infrastructure Improvements at the Alaska SeaLife Center
in Seward, Alaska.
1. 1. 12
"Date of Taking" means the date the
..
condemnor has the right to possession of the property being
condemned.
1. 1. 13
"Disbursement Request" means the
.
requisition from SAAMS to the City requesting disbursement of funds
from the Construction Funds pursuant to sections 4.11.2 and 4.11.3
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
4&
Page 4
.
.
0"
.
of this Agreement, which requests shall be substantially in the
form attached as Exhibits "B" and "C."
L 1. 14
."DOA Agreement" means the Standard
Agreement Form for Municipal Grants between the State of Alaska,
Department of Administration and the City, effective as of
October 6, 1993.
1.1. 15
"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.
LL16
"Event of Default" means any of the
events specified as an event of default of SAAMSin Section 8.1, of
the City in Section 8.2, or elsewhere in this Agreement.
L1.17
"Force
Majeure"
without
means,
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; fires; storms; droughts;
floods; explosions; breakage, malfunction, oroaccident to facili-
AGREEMENT fOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
f1
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ties, machinery, transmission pipes, or canals; or any other cause
or event not reasonably within the control of the party whose
performance is at issue.
1.1.18
"Funding Agreements" means either or
both of (i) the Grant Agreement, and (ii) the Cooperative
Agreement.
1.1.19
"Funding Source" means any of the
following: (i) the State of Alaska, Department of Administration,
(ii) the Trustee Council, and (iii) ADF&G.
1.1. 20
"Grant" means the $12.5 million grant
from the State of Alaska, Department of Administration, designated
tit as grant number 7/94-004.
.
1.1. 21
"Grant
Agreement"
Grant
means
Agreement No.2 between the City and SAAMS, dated October 27, 1993.
1.1. 22
"Hazardous Substances" 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. 23
"Indemnified Parties" means ADF&G,
the Trustee Council, the Executive Director of the Trustee Council,
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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the State of Alaska, the United States, and their officers, agents,
and employees.
1. 1 . 24
"Plans and Specifications" means the'
final drawings and specifications for the construction of the
Project, including without limitation the detailed construction
drawings and specifications referred to in Section III(L) of the
Cooperative Agreement.
1. 1. 25
"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. 26
"Project" means the construction of
the Alaska SeaLife Center to be constructed on the Property as
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.
1.1. 27
"Project Budget" means the Detailed
Budget prepared by SAAMS for the construction of the Project, as
such project Budget may be amended or changed from time to time, in
accordance with this Agreement and the Cooperative Agreement.
1.1. 28
"Project
Documents"
means
all
.
documents concerning the planning, design, Funding Source approval,
regulatory approval, or construction, of the Project.
AGREEMENT FOR FINANCING. LEASE. CONSTRUCTION. AND
MnT~ENANCE OF THE ALASKA SEALIFE CENTER
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1.1. 29
"Project Operating Budgetll means the
yearly operating budget prepared by SAAMS for the project as
required by Section 5.6 of this Agreement.
1.1.30 "property' means the real property_-k
owned by the City and described on the attached Exhibit "A." .
1.1.31
"Renewal and Replacement Budget"
means the yearly budget prepared by SAAMS determining the amounts
to be expended during the year for the renewal .and replacement of
the Project.
1.1. 32
"Renewal and Replacement Fund" means.
the separate fund controlled by SAAMS which will be funded by SAAMS
. for renewals and/or replacements of the Project, as required by
Section 5.6.2 of this Agreement.
1.1. 33
"Renewal
and
Replacement
Fund
Requirement" means, for any year, an amount equal to (a) the stim of
the amounts set forth in Exhibit "D" for that year and all prior
years, less (b) the sum of all amounts withdrawn from the Renewal
and Replacement Fund in accordance with clause (i) of Section 5.8.2
in that year and all prior years.
1.1.34
"Research
Facility"
means
the
+
research infrastructure improvements at the Alaska SeaLife Center.
1.1. 35
"Revenue Fund" means the separate
fund controlled by SAAMS into which will be deposited all revenues
.
received from the operation of the project, as required by Section
5.8.1 of this Agreement.
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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1.1. 36
"SAAMS" means the SEWARD ASSOCIATION
FOR THE ADVANCEMENT OF MARINE SCIENCE d/b/a ALASKA SEALIFE CENTER,
a non-profit corporat~on organized under the laws of the State of
Alaska, with Section SOl(c) (3) status.
1.1. 37
"State" means the State of Alaska.
1.1. 38
"Term" means the term of this
Agreement, which shall be the duration of the lease of the Property
by the City to SAAMS as set forth in Section 3.1.
1.1. 39
"Termination Fund Requirement" means
an amount determined not less frequently than every five (5) years
during the term of this Agreement by a qualified consultant
. retained by SAAMS to be .the amount required to maintain the
Property while closed to public access and to any research activity
for a period of one (1) year.
1.1.40
"Transaction Documents" means this
Agreement and all other documents executed in connection with this
Agreement.
.1.1. 41
"Trustee Council" means the Exxon
."
Valdez Oil Spill Trustee Council.
1.2 General Definitions.
1.2.1
SectioDS.
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, II
"hereto," "hereby," and "hereundern and
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MP.INTENANCE OF THE ALASKA SEALIFE CENTER
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Page 9
.
other words of similar import refer to this Agreement as a whole
and not any particular section or other subdivisions.
1.2.3
Sinaular/Plural. The terms specifi-
cally 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
Authoritv.
Every
"approval, ".
"request,'"
"order, \I
\I demand, II
"application, II
"appointment,"
. "notice," "statement, II "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 City. As of
the date hereof, the City hereby represents and warrants as
follows:
2.1.1
Good Standina.
The Ci ty 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.
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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Page 10
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. 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 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 Aareement.
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 Aareements.
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 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
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
33
Page J.J.
.
Property not permitted under the terms of any restriction,
agreement, instrument, statute, governmental rule or regulation,
court order, judgment, or decree.
2.1. 6
Litiaation. To the knowledge of the
City, there is no action, suit, proceeding, inquiry, or investi-
gation 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
Enforceabili tv. 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 certifi-
cate 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, SAAMS hereby represents and warrants as follows:
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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2.2.1
Good Standinq. SAAMS is a non-profit
corporation in good standing under the laws of the State of Alaska.
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. A~~roval.
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
tit 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 instru-
.ment or agreement required of SAAMS under this Agreement.
2.2.4
No Restrictions on Acrreement. Except
as has been waived in writing by the City, SAAMS 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: No Other Leases. SAAMS
.
is not in default of any promissory note, loan agreement, lease
agreement, rental agreement, or any other contract or obligation.
AGREEMENT FOR FINANCING. LEASE:. CONSTRUCTION. AND
MAINTENANCE: OF THE ALASKA SEALIFE: CENTER
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2.2.6
No Conflicts with Other Aqreements.
Neither the execution and de,livery 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 SAAMS, 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
Litiaation.
To the knowledge of
SAAMS, there is no action, suit, proceeding, inquiry, or investi-
gation 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
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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Page 14
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authority of SAAMS to carry out the transactions contemplated by,
or to perform its obligations under, this Agreement.
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 certifi-
cate 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
. st.atements made therein.
3 .
Lease of Propertv.
The City leases to SAAMS and
SAAMS leases from the City the Property and the Project, subject to
the terms and conditions of this Agreement.
3.1 .IHm.
The Term of the lease by the City to
SAAMS shall commence on April 28, 1995. The Term of the Lease and
this Agreement shall terminate at the end of the practical life of
the Project or as provided in Section 3.1.2.
."
3.1.1
Practical Life of Proiect. Subject
to Section 3.1.2 of this Agreement, the practical life of the
.
Project shall end 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 Project is not capable of generating revenues sufficient
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
""'-1
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.
to cover the operating expenses and debt service of the Project,
plus fund the yearly Renewal and Replacement Fund Requirement of
section 5.8.2.1i and (ii) while being operated in accordance with
any recommendation from the independent financial consultant and in
accordance with the terms and conditions of this Agreement during
the two-year period following the City's determination, the Project
does not generate revenue sufficient to cover the operating
expenses and debt service of the project, plus fund the yearly
Renewal and Replacement Fund Requirement.
j .1.2
Limitation of Term.
In no event
shall the Term of the Lease and this Agreement extend beyond the
. earlier of (i) the date fifty years from the date of City accep-
tance of the project, and (ii) any event causing damage to, or
destruction of, the proj ect, where the cost of repairing or
restoring the project, 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 project.
3.2 Rental Payments. 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.
.'
".
3.3 Existina improvements.
The City and SAAMS
.
acknowledge that there are certain improvements currently located
in, on, or around the Property. Such improvements now owned by the
City shall remain the property of the City.
Subject to Sections
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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.
3.3 . 1 through 3.3.3 of this Agreement, SAAMS may use, sell,
demolish, remove, or otherwise dispose of any improvements l~cated
on the Property. The City shall receive no compensation for such
improvements other than the performance of SAAMS' covenants under
this Agreement.
3.3.1
utili ties.
SAAMS may, at. its own
expense and subj ect to the approval of the City director of
engineering and utilities, relocate, sell, demolish, remove, or
otherwise dispose of City utilities on the Property in accordance
with the Plans and Specifications.
Otherwise, SAAMS. shall not
sell, demolish, remove, or otherwise dispose of City utilities on
the Property without the written permission of the City director of
engineering and utilities.
3.3.2
Fourth Avenue Dock.
Prior to the
effective date of this Agreement, the City will take all steps
necessary to decommission the Fourth Avenue Dock located on the
Property. 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. SAAMS may not make the Fourth Avenue Dock
available for the docking of vessels without the written permission
of the City. Except as provided in this section, SAAMS shall not
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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sell, demolish, remove, or otherwise dispose of the Fourth Avenue
Dock without the written permission of the City.
3.3.3
Relocation of Youth Center. At the
time of execution of this Agreement by the city, SAAMS agrees to
contribute an amount. not to exceed Thirty-Five Thousand Dollars
($35,000.00) to the resolution of the relocation of the seward
Youth Center.
SAAMS will assume leadership in facilitating a
community dialogue directed to a resolution of a plan and program
for the Youth Center until relocation of the Youth Center is
resolved. On or before May 6, 1995, the City agrees that the Youth
Center will no longer be in use. On or before May 13, 1995, the
. City will have removed all personal property from the youth Center.
The City will execute and deliver to SAAMS at the closing an
indemnification agreement whereby the City agrees to indemnify,
defend, and hold SAAMS harmless from liability arising out of the
use of the Youth Center after the effective date of this Agreement.
.
3.4 Use: Limitations on Use.
3.4.1
Use.
SAAMS shall use the Property
for the construction of the project in accordance with the terms of
this Agreement and for the operation and maintenance of the Project
during the Term. The City covenants and agrees that SAAMS shall
'.
have quiet enjoyment of the Property during the Term.
SAAMS
3.4.2
Cancellation of Insurance.
shall not do, bring, or keep anything in or about the property or
....
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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.
the Project that will cause a cancellation of any insurance
covering the Property or the Project.
3.4.3
Compliance with Laws.
SAAMS shall
comply with all laws concerning the Property or the Project and
SAAMS' use of the Property or the Project, including, without
limitation, the obligation, at SAAMS' cost, to alter, maintain, or
restore the Property or the Project in compliance and conformity
with all laws relating to the condition, use, or occupancy of the
Project during the Term.
3.4.4
Compliance with Fundina Aareements.
SAAMS shall use and maintain the Property and the Project in
~ accordance with all requirements of the Funding Agreements with
.'
.
respect to such use and maintenance.
SAAMS shall not use the
Property or the Project in any manner that would cause the City to
be in breach of, or to incur any liability under, any Funding
Agreement..
3.4.5
Space for EVOS Research. SAAMS shall
give priority to research related to the Exxon Valdez Oil spill
restoration mission. ADF&G shall have the right to use 4,000 net
useable square feet of laboratory and office space for research
projects at the Research Facility. The City shall promptly notify
SAAMS when it becomes aware that some or all of ADF&G's allotted
4,000 square feet of space is not required for the remainder of a
fiscal year so that SAAMS can attempt to find a replacement for the
lost revenue. The rent f~r space to conduct research funded with
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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Page 19
.
joint Exxon Valdez Oil Spill civil settlement funds, including the
4,000 square feet allotted to ADF&G at the Research Facility, shall
not exceed the cost per square foot computed on an annual basis for
the research component of reasonable personnel costs, administra-
tive expenses, Project operations, curatorial, and repair and
replacement costs, including reasonable reserves for repair and
replacement, but not including any depreciation, debt service, or
amortization.
To the extent that revenues collected from the
adjacent public education and visitation components of the project
exceed costs, the excess revenues shall be used to the extent
reasonably practicable to subsidize the rent for space to conduct
. Exxon Valdez oil Spill related research. SAAMS shall meet annually
with ADF&G and, for so long as the position exists, the Executive
Director of the Trustee Council, to identify the Exxon Valdez oil
Spill research needs for space in the Research Facility and to
establish the cost of that space.
3.4.6
Waste: Nuisance. SAAMS shall not use
the Project in any manner that will constitute waste, nuisance, or
unreasonable annoyance.
3.5 Mechanics' Liens. SAAMS shall not permit to be
'.
enforced against the Property, or any part of it, 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
AGREEMENT FOR FINANCING, LEASE. CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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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 Property 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.
3.5.1
Reimbursement of City. If SAAMS does
not cause to be recorded the bond described in A.S. ~34.35.072 or
otherwise protect the Property under any alternative or successor
statute, and a final judgment has been rendered against SAAMS by a
tit 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 payor
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 rate of prime plus three percent (3%)
per year from the date of payment until the date of reimbursement.
3.5.2
Notice of Non-Responsibilitv.
The
City may give notice of non-responsibility for any work performed
.
by SAAMS on the Property.
AGREEMENT FOR FINANCING, LEASE. CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
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3.5.3
Notice of Completion. On completion
of any substantial work of improvement during the Term, 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.
3.6 Utilities and Services. SAAMS shall make all
arrangements for and pay for all utilities and services furnished
to or used by SAAMS at the Property or the project during the Term.
3.7 Destruction/Restoration.
3.7.1
Total
Partial
Destruction~
or
~ Obliqation to Restore. If, during the Term, the Project is totally
or partially destroyed, rendering the Project totally or partially
inaccessible or unusable, SAAMS shall restore the Project to
substantially the same condition as it was in immediately before
destruction, except as provided in sections 3.7.1.1 and 3.7.1.2.
.
3.7.1.1
If the cost of repairing or
restoring the project, net of any available repair and replacement
reserves and insurance proceeds not reduced by applicable deduc-
tibles and coinsurance, exceeds ten percent (10%) of the then
replacement cost of the Project, 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.
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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3.7.1.2
If the existing laws do not
permit the restoration, either party can terminate this Agreement
immediately by giving notice to the other party.
3.7.2
City Not Obliaated to Restore
Pro;ect. 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 Property or the Project.
3.8 Condemnation.
3.8.1
Riahts and Obliaations of Parties
Governed bv this Aareem.ent.
If, during the Term, there is any
taking of all or any part of the Project or the Property 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 3.8.
3.8.2
Total TakinQ'.
If the Premises are
totally taken by condemnation, this Agreement shall terminate on
the Date of Taking.
3.8.3
Partial Takina.
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.
3.8.4
Payment of Award. The Award shall be
payable first, to the Funding Source, to the extent required under
the applicable Funding Agreement, and second, to SAAMS; except that
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the City shall receive from the Award the amount attributable to
the value of the Property without improvements.
4. Construction of Proiect.
4.1 Construction Drawinas and Specifications.
SAAMS shall prepare Plans and Specifications for the Project. The
plans and Specifications must be approved by ADF&G before construc-
tion bids for the project are solicited.
The Proj ect must be
constructed in accordance with the approved plans and specifi-
cations.
Changes in the Plans and Specifications must receive
architectural and/or engineering approval as appropriate. Change~
in the Plans and Specifications that modify the research space,
capabilities, or function of the Project must be approved in
writing by ADF&G.
4.2 Desian Review. Prior to submitting its first
Disbursement Request under Section 4.11.2, SAAMS shall obtain
approval of the Project design and engineering for compliance with
applicable building codes and good engineering practices from the
International Conference of Building Officials.
SAAMS shall
provide the International Conference of Building Officials approval
to ADF&G and the City.
"
4.3 proiect Construction. SAAMS shall construct,
or have constructed on the Property, the project, in accordance
with the Plans and specifications. It is specifically understood
and agreed that the City shall be under no obligation to use or
advance any of its own funds (other than amounts made available to
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it under the Funding Agreements) to pay the costs of designing or
constructing the Project, except as may be required by a Funding
Source pursuant to any of the Funding Agreements.
4.3.1
Compliance with Laws.
The proj ect
will be constructed in accordance with applicable Federal, State,
Kenai Peninsula Borough, and City statutes, ordinances, rules,
regulations, and judicial and administrative decisions, including,
the Americans with Disabilities Act{42 U. S. c. U201) and Americans
with Disabilities Act Accessibility Guidelines for Buildings and
Facili ties. SAAMS will give due consideration to, and implement to
the extent practicable, any future mitigation measures identified
by Federal, State, Kenai peninsula Borough, or City agencies.
SAAMS shall comply with A.S. S41.35.070, which requires construc-
tion to halt if any historic or archeological resources are
discovered.
4.4 Construction Manaaer. SAAMS represents that it
has retained a construction Manager prior to executing this
Agreement. SAAMS shall retain a Construction Manager continuously
during the construction of the Project until completion and final
acceptance of the Project.
4.4.1
Notice to City. Upon the execution
of this Agreement, SAAMS shall designate in writing to the City the
address, telephone number, and name of an authorized representative
of the Construction Manager. SAAMS shall notify the City promptly
of any changes in the foregoing information concerning the
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Construction Manager. SAAMS also shall notify the City promptly of
(i) any claim or dispute between SAAMS and the Construction
Manager, and (ii) the termination of the contract between SAAMSand
the Construction Manager for any reason.
4.4.2
Reauired of construction Manaaer.
SAAMS shall require the following of the Construction Manager:
4.4.2.1
The Construction Manager shall
maintain an office staffed by an authorized representative within
the City of Seward, and maintain a copy of each project Document at
that office.
4.4.2.2
Upon reasonable notice and
. during regular business hours, the construction Manager shall
permit the City to have access to, and to inspect and copy, all
project Documents.
4.4.2.3
The Construction Manager shall
make an authorized representative available during regular business
hours to respond to inquiries by the City concerning the Project.
4.4.2.4
Upon the termination of the
Construction Contract, the Construction Manager shall return all
project Documents to SAAMS.
4 . 5 Pro; ec t Budaet. SAAMS wi 11 prepare the proj ect
Budget, including the Detailed Budget required of the City in
paragraph III (E) of the Cooperative Agreement, not less than thirty
(30) days prior to submitting its first Disbursement Request unger
.
Section 4 .11. 2.
The proj ect Budget must be approved by the
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Executive Director of the Trustee Council and ADF&G. The Project
Budget shall include reasonable allowances for contingencies. The
Construction Manager shall report in writing to the City any change.
in the allowances for contingencies in the Project Budget, and the
reasons therefor (which may include completion of the work related
to a contingency).
SAAMS, from time to time, but no less
frequently than with each Disbursement Request under Section
4.11.2, shall prepare and submit to the City an updated Project
Budget, reflecting changes in costs incurred or projected in the
immediately preceding Project Budget. Any updated Project Budge~
showing an increase in the budget categories of construction,
design, contingency, or EIS/Planning by more than ten percent (10%)
of the original amount of the category shall be accompanied by:
(a) a written report from the Construction Manager stating (i) the
reason for the increase, and (ii) corrective measures taken as a
result of the increase; and (b) written approval of the increase by
ADF&G and the Executive Director of the Trustee Council.
In no
event may the total amount of the proj ect Budget be increased
unless SAAMS demonstrates in writing to the City that it has
obtained additional funding (other than by borrowing) at least
equal to the increase.
4.6 Construction Schedule. SAAMS shall prepare a
master construction schedule for construction and monthly cash flow
projections for the Project, and shall submit such schedule and
monthly cash flow projections to ADF&G and the City thirty (30)
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days prior to submitting its first Disbursement Request under
section 4.11.2.
Subsequently, SAAMS shall notify ADF&G and the
City in writing of any changes to the master construction schedule
and the reason for the changes. Any changes that delay the Final
Acceptance of the project must be approved in writing by ADF&G and
the City. Once said changes have been approved in writing by ADF&G
and the city, SAAMS shall submit an updated master construction
schedule to ADF&G and the city.
4.7 Construction Reports. During the construction
phase of the Project, SAAMS shall submit the following reports to
ADF&G and the City.
4.7.1
Monthlv Reports. within thirty (30)
days following the effective date of this Agreement and continuing
throughout the construction phase of the Project, SAAMS shall
submit monthly progress and financial reports to ADF&G and the
City, regardless of whether or not expenditures have been made in
a given month. The report must include details of the progress
made during the reporting period, including potential problems,
milestones, and other significant progress.
The report must
reference progress against the master construction schedule
",
provided for in Section 4.6. The report is due to ADF&G and the
City on the 10th of each month following the reporting period.
4.7.2
Annual Reports. During the construc-
tion phase'of the Project SAAMS shall complete the annual financial
reports and Project status reports required by section III(J) of
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the Cooperative Agreement. The reports shall contain a cumulative
summary of the information contained in monthly reports during the
previous calendar year. The annual reports are due on January 31
of the year following the reporting period and shall.be submitted
to the Trustee Council Executive Director, with copies to ADF&G and
the City.
4.7.3
Final Report.SAAMS shall submit a
final report that summarizes all expenditures, activities, and
accomplishments pertaining to the Project within ninety (90) days
following Final Acceptance.
4.8 Proourementof Construotion ContraotCsl.
4.8.1
Proourement. SAAMS shall procure all
labor, material, and services required for the design and construc-
tion . of the Project, in accordance with procurement procedures
substantially similar to those prescribed in the City Code. The
City shall have no right or responsibility to approve or consent to
the terms or conditions of any such contract. In each procurement
solicitation and contract awarded under this Section 4.8, SAAMS
shall state clearly that it is not an agent of the City, and that
the City shall have no liability under the contract.
4.8.2
Reauired Contraot Ter.ms.
Each
contract for the construction of the Project awarded by SAAMS shall
include the following contract terms.
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4.10 Insoection Riahts. The City and ADF&G shall be
allowed, at reasonable times and upon reasonable notice to SAAMS,
to inspect all work on the Project and to audit all related records
and data.
4.11 Disbursement Procedures.
4.11.1
construction Funds. The City shall
establish separate funds of the City for amounts received from each
Funding Source. The City shall deposit in Construction Fund No. 1
all funds transferred to the City by ADF&G under the Cooperative
Agreement and shall deposit in Construction Fund No. 2 all funds
transferred to the City by the Department of Administration under
. the DOA Agreement.
4.11. 2
Disbursements From Construction Fund
No.1. The City shall not be obligated to make any disbursements
from Construction Fund No.1 until SAAMS has met all conditions for
the initial disbursement of funds under the Cooperative Agreement.
The City shall make payments from Construction Fund No. 1 upon
receipt from SAAMS of a Disbursement Request substantially in the
form attached hereto as Exhibit "B" and the information and
certificates required by this Section 4 .11. 2.
In making such
payment, the City may rely upon such Disbursement Request and
accompanying documentation. No payment shall exceed the approved
projected cash flow needs for the next month, adjusted by any
previously paid funds that have not been spent. Payment to SAAMS
~ from Construction Fund No. 1 will be made by the City within ten
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(10) days of the City' s receipt of such funds and the approved
disbursement request therefor.
4.11.2.1 SAAMS shall provide, in respect
of each payment to be made:
(a) the name of the person, firm, or
corporation to whom payment is due; (b) the amount to be paid; and
(e) in reasonable detail (including allocation of the requisition
amount among items in the Project Budget), the purpose for which
the obligation was incurred.
4.11.2.2 Attached to each Disbursement
Request shall be a certificate, executed by an authorized represen:
tative of SAAMS, certifying as follows:
(a) that obligations in
.
the stated amounts have been properly incurred by SAAMS in or for
the construction of the Project, and that each item thereof is a
proper charge against the Construction Fund, is a proper cost of
the Project, and has not been paid; and (b) that there has not been
fi~ed with or served upon SAAMS notice of any lien, right to lien,
or attachment upon, or claim affecting the right to receive payment
of, any moneys payable under such Disbursement Request to any of
the persons, firms, or corporations named in such Disbursement
Request, or if any such lien, attachment, or claim has been filed
with or served upon SAAMS, that such lien, attachment, or claim has
been released or discharged in the amount in which such lien, right
to lien, attachment, or claim is stated in said notice, or if no
amount is so stated, the amount stated by the Construction Manager
. as his or her opinion of the amount thereof; and (c) that such
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Disbursement Request contains no item representing payment on the
account of any retained percentages which.SAAMS is, at the date of
such Disbursement Request, entitled to retain.
4.11.2.3 Attached to each Disbursement
the work or materials for which the Disbursement Request is
submitted has been performed or furnished in accordance with the
Plans and specifications; (b) payment of the requisitioned amount,
with all previous payments, will not cause the expenditure under
any category in the Project Budget to exceed the budgeted amount
for that category; and (c) the amounts remaining in the Construc-
~ tion Funds will be sufficient, in the opinion of the Construction
Manager, to pay the remaining costs of Phase I of Project
construction.
Request shall be a certificate of the Construction Manager that (a)
4.11.2.4 In the discretion of the City,
the final payment from Construction Fund No.1, or $500,000,
whichever is larger, maybe withheld pending final acceptance of
the Project under section 4.13.
4.11.3
Disbursements From Construction Fund
upon receipt from SAAMS of a Disbursement Request substantially in
the form attached hereto as Exhibit "C." In making such payment,
the City may rely upon such Disbursement Request and accompanying
documentation. Payment to SAAMS from Construction Fund No. 2 will
~ be made by the City within ten (10) days of the City's receipt of
No.2. The City shall make payments from Construction Fund No.2
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such funds and the approved Disbursement Request therefor. SAAMS
will submit a monthly Grant Agreement financial report to the City
until the Project is completed, regardless of whether or not
expenditures have been made.
A final Grant Agreement financial
report is due within sixty (60) days of Project completion. SAAMS
will return all unexpended Grant Agreement monies to the City
within sixty (60) days of Project completion.
4.12 Retention for Administrative Overhead. The
City shall be compensated for its administrative overhead related
to this Agreement as follows. Commencing with the deposit of fundI:!
in Construction Fund No.1, the City may withdraw and retain from
Construction Fund No. 1 at the time of each disbursement to SAAMS
from the fund an amount equal to one percent (1%) of the disburse-
ment, subject to adjustment as follows. Commencing July 1, 1996,
and annually thereafter, at the request of the City supported by
documentation of actual expenses, the amount that the City may
retain may be adjusted to equal the actual expense to the City
during the preceding year of processing disbursements and super-
vising the grant, but not exceeding five percent (5%) of disburse-
ments. The City may withdraw and retain from Construction Fund No.
2 an amount equal to one percent of all amounts deposited in
Construction Fund No.2.
4.13 Pinal AcceDtance.
Upon receipt of written
notice that the Project is ready for final inspection and accep-
lit tance, the Construction Manager will promptly make such inspection
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and, when the Construction Manager finds the Project acceptable
under the plans and specifications and the Construction Contract
fully performed, the Construction Manager will promptly issue a
certificate stating that to the best of the Construction Manager's
observations and inspections, the Project has been completed in
accordance with the terms and conditions of the Plans and specifi-
cations. The issuance of the certificate described in this section
shall constitute final acceptance of the project by the City.
4.13.1
unexpended Funds. SAAMS shall return
to the City all funds transferred to the City by ADF&G under th~
Cooperative Agreement which were not actually expended for Project
purposes as outlined in the Detailed Budget within ninety (90) days
of Final Acceptance.
4.14 Additional
Construction.
The
following
conditions govern all construction on the Property not provided for
in the Plans and Specifications for the Project, including
alterations, additions to, and reconstruction of, the project after
City acceptance of the Project.
4.14.1
Citv Approval of Proposed Construc-
tion. Before commencing construction having a value exceeding Five
Hundred Thousand Dollars ($500,000), SAAMS shall deliver to the
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City a set of plans and specifications for the construction
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prepared by an architect or engineer licensed to practice as such
in the State of Alaska. The proposed construction shall be subj ect
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to approval by the City. The City shall be deemed to have approved
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the proposed construction if it does not notify SAAMS within sixty
(60) days after receipt of the Plans and Specifications that it
disapproves.
Construction having a value not exceeding Five
Hundred Thousann nollars ($500,OOO), or construction related to
exhibi ts, or renewals or replacements shall not be subj ect to
approval by the City.
--- ---
conditions of Construction.
All
4.14.2
construction shall be subject to the following conditions:
4.14.2.1 SAAMS shall have obtained all
permits required by federal, state, municipal, or borough govern~
mental agencies as a condition to commencing construction.
4.14.2.2 All
for
the
contractors
construction shall furnish performance and payment bonds to the
extent required by A.S. ~36.25.010.
4.15 As-Built Drawinqs.
promptly after final
acceptance of the Project, SAAMS shall provide the City with a full
set of as-built drawings fQr the Project.
Promptly after any
addition or alteration to the Project, SAAMS shall provide the City
with revised as-built drawings as necessary to depict the addition
or alteration.
5.
Manaqement and ODeration of Proiect.
SAAMS shall
maintain, operate, and control the project and shall do so to a
.
standard that is comparable to that of other well-operated and
maintained marine research facilities throughout the United States.
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5.1 Use. The Proj ect 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, and fish genetics;
rehabilitation, public education, and public visitation..
5.2 Payment of Expenses. SAAMS shall be responsi-
ble for the payment of all expenses relating to the management and
operation of the project.
5.3 Inspection of Premises. The City mayperiodi~
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cally inspect the property and the Project in order to ascertain
~ '
the condition of the Property and the Project, but the exercise of
this right shall not imply any obligation to do so nor any
obligation to do so in any particular way:
-
5.4 Comtlliance wi th Laws. The proj ect shall comply
at all times with any 'and all Federal, State, Kenai peninsula
Borough, and City statutes, ordinances, rules, regulations and
judicial and administrative de9isions governing the use and
operation of the Project, including, without limitation, the terms
and provisions of the conditional use permit for the Project issued
'.
by the city Planning and zoning Commission.
5.5 ODeratina Plan. Prior to submitting its first
Disbursement Request under Section 4.11.2, sAAMS shall prepare a
detailed operating plan for the Project.
The detailed operating
plan shall reflect a realistic cash flow for the operation of the
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Project and must be approved by ADF&G and the Executive Director of
the Trustee Council. SAAMS shall be required as a condition of
this Agreement to comply with the detailed operating plan.
5.6 Pro1ect OPeratina Budaet. At least sixty (~)
days before the commencement of each year, SAAMS shall prepare and
file with the City a Project Operating Budget for the Project for
the following year.
The Project operating Budget shall, at a
minimum, identify the source and amount of all revenues for the
year, identify the category and amount of all operating expenses
for the year, and the amount of any deposit to the Renewal and
Replacement Fund and the Termination Fund during the ear.
5.6.1.
Revisions
Pro;ect
OPeratina
to
Budaet.
SAAMS promptly shall prepare and file with the City a
revised project Operating Budget reflecting any changes to the
proj ect Operating Budget that SAAMS adopts during the year. Except
as provided in Section 5.6.4, SAAMS shall not adopt a proj ect
operating Budget nor revise the Project Operating Budget in any
manner which results in operating expenses and deposits in the
Renewal and Replacement Fund and the Termination Fund exceeding
: revenues for the year.
t
5.6.2
Renewal and Replacement Budaet. The
Project Operating Budget shall include a Renewal and Replacement
Budget for the year.
The Renewal and Replacement Budget shall
provide for all expenditures for renewals and replacements to the
Project during the year.
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5.6.3
Cash Flow Proiection. The Project
Operating Budget will include a cash flow projection for the
Project for the budget year. The projection shall show:
(i) the
balance in the Revenue Fund as of the beginning of the budget year
and the first day of each succeeding month; (ii) monthly and
cumulative revenues, operating expenses, and net withdrawals from
the Revenue Fund for each month; and (iii) deposits into the
Renewal and Replacement Fund and the Termination Fund for each
month. SAAMS at all times shall maintain an operating reserve of
not less than ten percent (10%) of projected annual. operating
expenses.
5.6.4
Budqeted Expenditures in Excess of
Revenue. SAAMS may adopt an initial or revised Project Operating
Budget that provides for operating expenses and deposits in the
Renewal and Replacement Fund exceeding revenues for the year, only
if each of the following conditions are met:
5.6.4.1
The excess of operating expenses
and deposits in the Renewal and Replacement Fund and the Termina~
tion Fund over revenues shall not exceed the amount. on deposit in
the operating reserve.
5.6.4.2
SAAMS shall submit a plan that
....
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shall be subject to the reasonable approval of the City providing
~ -
for (i) a balanced project Operating Budget for the next budget
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year, and (ii) restoration of the operating reserve within the next
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budget year.
SAAMS shall document support for the assumptions
underlying the plan to the reasonable satisfaction of the City.
5.7
SAAMS shall cause the
construction Manager or a similarly qualified consultant to prepare
a maintenance plan ~or the Project.
The maintenance plan shall
identify all routine and periodic maintenance required for all
systems and components of the Project.
5.7.1
Upda tinq of Plan. As often as SAAMS
.
considers necessary, but not less frequently than (i) every five
years, (ii) after each restoration of major damage to the Project
as described in Section 3.7, and (iii) after each addition to, or
alteration or renovation of, the Project subject to City approval
under section 4.14, SAAMS shall cause a qualified employee or
consultant to prepare an updated maintenance plan.
The updated
maintenance plan shall reflect a thorough inspection and evaluation
of the condition of the Project at the time of its preparation, and
shall include an estimate of the cost of each' maintenance item
scheduled to occur during the five (5) year period commencing on
,"
the date of the plan, and each major renewal or replacement
scheduled to occur during the twenty (20) year period commencing on
the date of the plan.
5.7.2
COpy of Plan to City.
SAAMS shall
provide a copy of the initial maintenance plan to the City before
Project operation commences. SAAMS shall provide a copy of each
. updated maintenance plan to the City within one hundred twenty
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(120) days of the occurrence of the event upon which the updated
plan was required under Section 5.7.1.
"
5.8 proiect Operatina Funds.
SAAMS shall estab-
lish, at a minimum, the following funds for the Project's opera-
Amounts may be withdrawn from each fund only for the
tion.
Each fund shall be kept
purposes described in this Agreement.
separate from all other funds of SAAMS.
5.8.1
Revenue Fund.
All revenues of the
Amounts may
Project shall be deposited in the Revenue Fund.
withdrawn from the Revenue Fund only to pay operating expenses,
make required deposits in the Renewal and Replacement Fund and the
. Termination Fund, and as authorized in the Project Operating
Budget.
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5.8.2
Renewal
and
Replacement
Fund.
Amounts shall be withdrawn from the Revenue Fund and deposited in
the Renewal and Replacement Fund so that the balance in the Renewal
and Replacement Fund is not less than the Renewal and Replacement
Fund Requirement. Amounts may be withdrawn from the Renewal and
(i) to pay the
Replacement Fund only for the following purposes:
cost of maj or renewals and replacements to the proj ect, to the
'.
extent that insurance or other moneys recoverable as the result of
damage or loss to the project are not available to pay such cost;
and (iil for deposit in the Revenue Fund to the extent the balance
,
in the Renewal and Replacement Fund exceeds the Renewal and
--
Replacement Fund Requirement. -
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5,8.3
Termination Fund. Amounts shall be
withdrawn from the Revenue Fund and deposited in the Termination
Fund each year in an amount equal to the lesser of (i) the
difference between the balance of the Termination Fund and the
Termination Fund Requirement, and (ii) twenty percent (20%) of the
Termination Fund Requirement. "Termination Fund Requirement" means
OJt
an amount determined not less frequently than every five (5) years
....
.
during the term of this Agreement by a qualified consultant
retained by SAAMS to be the amount required to maintain the
Property while closed to public access and to any research activity
for a period of one (1) year.
..
5.8.4
Other Special Funds. SAAMS may, in
its discretion, establish one or more funds for special purposes,
including without limitation endowment and other special fund
raising.
5.9 Taxes. Assessments. and Other Charaes. 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 Property, improvements on the Property,
personal property locate4 on the Property, the leasehold estate, or
SAAMS' business operations located on the Property, 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
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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
Property from any lien by surety bond or other appropriate
security.
5.9.1
Taxation. To the extent that sales
by SAAMS and rents paid to SAAMS related to the visitor and
educational parts of the project are exempt from City sales tax
tit only because SAAMS is a non-profit 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.
5.10 Public Access to Pro;ect. SAAMS acknowledges
that public use of, and access to, the Project is a material factor
in the determination by the City that this Agreement is in the
public interest. SAAMS shall permit public use of, and access to,
the project as provided in this Section, in addition to all other
"
public use of' the Project.
5.10.1
Public Use of Pro;ect.
Subject to
fees and regulations that SAAMS may adopt, SAAMS shall permit the
.
general public to use the grounds of the property and the interior
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of the visitor and education portion of the Project. at times
outside the regular business hours of the Project.
5.10.2
Public Access to Plaza and Bike Path.
Subject to regulations adopted by SAAMS, SAAMS shall make the plaza
on the Property accessible to the general public at all times, and
shall design, construct, and maintain the Project so that the
general public shall have reasonable pedestrian access between the
Property and the bike path on adjacent City property.
5.10.3
Public Restrooms.
SAAMS shall
maintain restrooms on the Property that are available to the
general public without paying for admission to the Project during
~ the regular business hours of the Project.
5.11 Books: Financial Statements.
~
.
5.11.1
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
Project.
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.
SAAMS shall
5.11. 2
Financial Statements.
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, a detailed statement for the preceding fiscal year
showing the revenues received from the operation of the Project,
disbursements from such revenues, and expenditures applicable to
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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the Project, together with a detailed balance sheet reflecting the
balances in all funds relating to the project held by SAAMS as of
the end of such fiscal year, which statement and balance sheet
shall be accompanied by an opinion in writing of an independent
certified public accountant.
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 of the City
under the Cooperative Agreement; provided that such insurance
requirements may be modified as provided in section 6.1 of this
All such policies shall be written by insurance
e. companies legally authorized or licensed to do business in the
State of Alaska and acceptable to the City. SAAMS shall provide to
the City certificates that it has procured the insurance required
Agreement.
under this Agreement as a condition of Closing; provided, however,
that the City may elect not to require some or all of the insurance
to be in place as a condition of Closing if such insurance will be
in place after Closing and such election will be stated in a
written statement executed by the City and SAAMS.
6.1 Modification of Insurance Reauirements. If one
'-
or more of the required insurance coverages is 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
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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.
Project or any activities in, on, or around the Project, and
approval of the requested waiver by ADF&G, the City will approve
the requested waiver.
6.2 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.
6.3 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
of this Agreement, or SAAMS shall obtain an appropriate waiver of
subrogation in favor of the City and the Indemnified Parties with
respect to all insurance policies to effect the same purpose. The
City and the Indemnified Parties shall be named as loss payees on
any property loss settlement.
7. Conditions Precedent to Aareement. Unless otherwise
specified, prior to the Closing, each of the following conditions
precedent must be met to the satisfaction of the City and SAAMS.
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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7.1 Entitv Authod.tv.
SAAMS shall furnish the
city, in a form and substance satisfactorY to the city, a resolu-
tion or other certification authorizing SAAMS to enter into this
Agreement and the other Transaction Documents and authorizing
SAAMS' designated corporate officers to execute the Transaction
Documents on behalf of SAAMS.
The city shall also be furnished
with an incumbency certificate for each officer executing a
Transaction Document.
The lease of a
7.2 Northern Stevedorina Lease.
portion of the Property to Northern Stevedoring has been terminated
through reacquisition of the leasehold by the city or otherwise in
tit a manner acceptable to SAAMS.
.
7.3 Propertv Platted.
The City shall have
completed the re-plat of the property and such plat shall be filed
with the appropriate governmental agencies.
7.4 Title Insurance. SAAMS shall have received a
title insurance policy showing its leasehold interest on the
property, free and clear of all liens and encumbrances, except such
liens and encumbrances as may be acceptable to SAAMS.
8.
Default and Remedies.
'.
8.1 Events of Defaul t of SAAMS.
The following
events shall constitute a "SAAMS Event. of Default" under this
Agreement:
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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.
8.1.6
Filinq 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 involun-
tary 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
4It commenced by a party other than SAAMS and is withdrawn or dismissed
within ninety (90) days after the date of its filing.
8.1.7
Admission of inability to Pay Debts.
The admission in writing by SAAMS of its inability to pay its debts
when due.
8.1.8
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.
8.1.9
Assicmment 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.
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8.1.10
Dissolution.
The voluntary or
involuntary dissolution of SAAMS.
8.1.11
Other Events of Default.
The
occurrence of any other event described as constituting an "Event
of Default" of SAAMS elsewhere in this Agreement.
8.2 Remedies of the City on SAAMS' Default. 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 anyone or more of the following with
respect to SAAMS:
8.2.1
Termination.
Terminate
this
Agreement and the rights created herein by giving notice of such
election to SAAMS.
8.2.2
Recover Monies. Recover all monies
previously paid to SAAMS from amounts paid to the City under the
Funding Agreements that were not spent in accordance with the
applicable Funding Agreement.
8.2.3
Enter ProDertv. Take possession of
ProDertv. With or without judicial process, enter the Property and
the Project and take possession of any and all goods, inventory,
-.
equipment, fixtures, accounts, general intangibles, and all other
~rsona1Prope~ situated ~or on, or used i;;;;'nnec~
with, the Project or property without liability for trespass or
AGREEMENT FOR FINANCING. LEASE, CONSTRUCTION, AND
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conversion, and may sell all or any part thereof at . public or
private sale.
8.2.4
Perform
Obliaations.
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 a rate equal to th~ prime rate
plus three percent (3%).
8.2.5
Specific Performance. Seek specific
. performance of any term or provision of this Agreement.
r
.
.
8.2.6
Use of ProDertv. If this Agreement
is terminated, the City may enter into other agreements providing
for use of the Property or the proj ect 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 alter-
ations of the Project) as the City, in its absolute discretion, may
determine, but the City shall not be liable .for, nor shall SAAMS'
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.
8.2.7 Force Ma;eure. If by reason of force
majeure, SAAMS is unable in whole or in part to perform its
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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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 c~use 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 contrac-
tors, as the case may be, andSAAMS 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 manage-
ment, could have reasonably prevented from occurring, shall be
considered "force majeure."
8.3 Citv Events of Default. The following events
shall constitute a "city Event of Default" under this Agreement:
8.3.1
Default Under Pundina Aareements.
The City shall default under or fail to perform its obligations
under the Cooperative Agreement or the DOA Agreement.
",
.
8.3.2
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
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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.
8.3.3
ReDresentations or Warranties.
If
any representation or warranty by the City contained in this
Agreement or any Transaction Document 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 Project.
8.3.4
Execution. rnsolvencv. The sale of
the City's interest in the Project under attachment, execution, or
. similar legal process; or if the City is adjudicated 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.
8.3.5
Filina of BankruDtcv 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
I 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.
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8.3.6
Force Ma1eure. 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 contrac-
tors, 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.
8.4 Remedies of SAAMS on the Ci tv's Defaul t. Upon
the occurrence and continuation of a City Event of Default, SAAMS
may do anyone or more of the following:
8.4.1.
Terminate Aareement. SAAMS may elect
to terminate this Agreement.
8.5 No Remedv 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
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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.
9. Indemnitv and ExculDation.
9 .1 Limi ta tion of Ci tv Liabili tv.
Except as
provided in Section 9.4, the Indemnified Parties and the City, its
officers, agents, and employees shall not be liable to SAAMS for
any damage to the Project or the Property, 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.
9.2 Indemnitv. Except as provided in section 9.4,
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 Property or the proj ect;
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's obligation to hold the Indemni-
,
fied Parties and the City, its officers, agents, and employees
harmless shall be limited to the sum that exceeds the amount of
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9.4 Environmental Matters. SAAMS certifies to the
1Ia city and agrees as follows:
.
.
insurance proceeds, if any, received by the per~on being
indemnified.
9.3 8i te Conditions. Except as provided in Section
9.4, SAAMS agrees to accept the property as it is at the commence-
ment of the Term .
The city shall not be responsible for the
property of any third party that may be on the Property at the
commencement of the Term. Except as provided in Section 9.4, the
city makes no covenants, representations, or warranties respecting
the condition of the soil or subsoil or any other condition of the
Property.
9.4.1
Knowledae of Hazardous Substances.
SAAMS has no knowledge, based solely upon the Phase I Environmental
Assessments attached hereto and incorporated herein as Exhibit "E, II
of (i) the presence of any Hazardous substances on the property, or
(ii) any spills, releases, discharges, or disposal. of Hazardous
Substances that have occurred or are presently occurring on. or on
to the Property except as disclosed on the environmental
assessments and reports attached hereto as Exhibit "E."
. "
9.4.2
prevention of Future Releases. SAAMS
will not cause or permit the Property 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
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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 Property.
9.4.3
Compliance with Environmental Laws.
SAAMS will at all times and in all respects use its best efforts to
comply with all Environmental Laws.
9.4.4
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 Property, or (ii) any lien, action, or notice resulting from
violation of any of the laws, regulations, ordinances, or orders
defined as Environmental Laws.
At SAAMS' own cost, SAAMS shall
take all actions which are necessary or desirable to clean up any
and all Hazardous Substances affecting the Property which occur
after the date of the execution of this Agreement, subject to the
provisions of Section 9.4.7 of this Agreement.
9.4.5
Indemnification.
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 on or after the effective date of
this Agreement 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 Property
during SAAMS' possession or control of the Property which directly
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
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or indirectly resulted in the property being. contaminated with
Hazardous Substances; (iii) the discovery of Hazardous Substances
on the Property whose presence was caused during the possession or
control of the Property by SAAMS; and (iv) the clean-up of ,
Hazardous Substances to the property.
9.4.6
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 9.4.5 above, are separate and
distinct obligations from SAAMS' obligations otherwise provided for
herein and shall continue in effect after the expiration of this
111 Agreement.
9.4.7
Discoverv of Hazardous Substances
Durina Construction.
SAAMS may, at its own expense, conduct
construction activity on the Property.
If, as result of such
construction activity, Hazardous Substances are discovered on the
Property, SAAMS shall report such Hazardous substances to the City
on or before September 15, 1995. Notwithstanding the provisions of
section 9.4.5 above, within sixty (60) days after SAAMS submits the
report of such Hazardous Substances to the City, either (i) the
..
parties shall agree in writing as to the extent to which each party
is responsible for such Hazardous Substances; or (ii) this
,
Agreement shall terminate at the end of such sixty (60) day period.
9 . 4 . 8 . Pre - Exi s tina Condi tion. . Nothing in
this Agreement shall cause SAAMS to have any obligation or
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liability arising from Hazardous Substances whose presence on the
Property occurred prior to the effective date of this Agreement.
Nothing in this Agreement obligates the City to use or advance any
of its own funds to pay costs of Project Construction arising from
the presence of Hazardous Substances on the Property.
10. Sublease or Assianment. SAAMS shall not sublease or
assign all or any part of the Property or the Project or any of its
interest under this Agreement, except as provided in this section.
10.1
Subleasinq.
SAAMS may sublease space
within the interior of the Project subject to all of the following
conditions:
10.1.1
SAAMS shall provide the City with a
---
copy of all terms and conditions of each sublease.
~
10.1. 2
All subleases shall be for uses that
~
are accessory and subordinate to the use of the Pro ert and the
Project for a marine research and education facility.
10.1.3
All subleases shall comply with all
applicable requirements of each Funding Source.
10.1.4
All amounts payable to SAAMS under a
sublease, as rent or otherwise, shall be treated as Project
revenues under this Agreement.
10.2
Assfanment. Any assignment by SAAMS of
any of its interest under this Agreement shall be subj ect to
approval by the City. . Such approval shall not be withheld if the
City, in its sole discretion, determines that the assignment will
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not subject the City to cost or liability under the Funding
Agreements or otherwise.
11. Miscellaneous.
11.1 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 PropertYi (ii) all accounts, related to.
the project or the Property, owned as of the effective date of this
Agreement or at any time subsequently acquired by SAAMSi(iii) all
general intangibles, related to the Project or the property, owned
as of the effective date of this Agreement or at any time subse~
. quently acquired by SAAMSi and (iv) all proceeds of such goods,
inventory, equipment, fixtures, accounts, and general intangibles.
11.2 Lobbvina.
SAAMS shall not expend amounts
received under the Funding Agreements or earnings thereof for the
purpose of lobbying activities before the Alaska Legislature or
Congress.
l
11.3 No Imclied 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.
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11.4 Successors in Interest. This Agreement shall
be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto.
11.5 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
Seward Association for the
Advancement of Marine Science
ATTN: Executive Director
P. O. Box 1329
Seward, Alaska 99664-1329
WITH COpy TO: Seward Association for the
Advancement of Marine Science
ATTN: Chairman of the Board
P. O. Box 1329
Seward, Alaska 99664-1329
SAAMS:
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.
11.6
Parties in Interest.
Nothing in this
Agreement expressed or implied is intended or shall be construed to
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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.
Time shall be of the
11.7
Time of Essence.
essence of this Agreement.
11. 8
Headin<:rs. The Sect ion. headings contained
herein are for convenience and reference and are not intended to
define or limit the scope of any provision of this Agreement.
11.9
Law Governinq Construction of A<:rreement.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Alaska.
11.10
Exclusive Forum and Venue. Any actions or
judicial proceed~ngs 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.
11.11
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.
11 . 12
Inteqration and Modification.
This
document contains the entire agreement of the parties hereto. All
negotiations, statements, or representations, warranties, and
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assurances, whether--oraror written:;o-which are in anyway 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.
11.13
Termination of Grant Aqreement. The Grant
Agreement is terminated as of the Effective Date of this Agreement.
11.14
Additional Documents. The parties agree
to execute any additional documents which may be necessary in order
to effectuate the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto, in consideration
of the mutual covenants set forth herein and intending to be
legally bound, 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,
a non-profit Alaska corporation
BY'~II" q"S;'h~
aren Swar z
Vice President
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
/D3
Page 63
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CITY:
CITY OF SEWARD I ALASKA
(SEAL)
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ATTEST:
.()~".LLO' ...\ .~~
City Clerk
AGREEMENT FOR FINANCING, LEASE, CONSTRUCTION, AND
MAINTENANCE OF THE ALASKA SEALIFE CENTER
/ D~ Page 64
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I~'(~:~[ OFFICE OF THOMAS J. MARTIN
I*;,\;~ Economic Research and Mana2ement Consultants
ffK,$,i;C: Suite 200 North, 124 Mount Auburn Street, Cambridge, Massacbusetts 01138
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i]>repared for:
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ADVANCEMENT OF MARINE SCIENCE
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Prepared by:
THE OFFICE OF THOMAS J. MARTIN
Economic Research and Management Consultants
/'
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. August 1993
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100 .
OFFICE OF THOMAS J. MARTIN
Economic Research and Manal!ement Consultants
Section I
INTRODUCTION AND.EXECUTIVE SUMMARY
THE STUDY
This study evaluates the feasibility of the Alaska Sea Life Center proposed to be
developed in Seward, Alaska. The study was commissioned by the Seward Association for the
Advancement of Marine Science (SAAMS) to test the feasibility of the proposed project. A
companion study was cOnmUssioned by SAAMS to evaluate the market demand for the project.
That study, prepared by Fox Practical Marketing artd Management, is included in its entirety as
an appendix to this report. This feasibility study is solely the work of the Office of Thomas J.
Martin. Cambridge Seven Associates and International Design for the Environment Associates,
Inc. (IDEA) provided input to this study regarding our understanding of the concept development
and physical plan and operating costs. The work of Cambridge Seven. Associates had been
substantially completed before the feasibility study was undertaken, and is presented in a report
published in 1992. For a description of the <?bjectives and proposed organizational structure of
the project we relied on descriptions in the preliminary business plan for the project and
discussions with SAAMS.
THE PROJECT
The Alaska Sea Life Center has been developed over the last several years by the Seward
Association for the Advancement of Marine Science (SAAMS). The City of Seward donated
. 10.5 acres of waterfront property for use of the Center, and a preliminary project concept was
prepared by Cambridge Seven Associates. When the project is completed, a Board of Directors
will oversee the operation of the Center. SAAMS will retain a single seat on the Board, which
will consist of business leaders, local, state and federal officials, and University scientists.
The proposed Alaska Sea Life Center, as illustrated in the conceptual plan study, will be
a unique facility in that it is conceived as a project that will be a marine mammal rehabilitation
center, research facility, and a public attraction. Because of the unique prof1le, the facility will
have drawing power similar to the larger aquariums, but will have operating prof1.les similar to
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<'07) 224-3.0 FAX <_'1)224-3392
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1
ALASKA SeaLife CENTER
Executive Summary
The Alaska SeaLife Center will be a financially self supporting facility dedicated to marine
science research, rehabilitation and public education. The public education portion of the Cen-
ter's mission will provide the funds to support the core research and rehabilitation programs.
To meet this self supporting goal, 300,000 visitors per year are required. The initial feasibility
into this project indicates that an annual attendance in excess of 400,000 can be reasonably
expected.
The Center will operate year round under a Director who will be responsible to a Board of
Directors. The Center will be a not for profit corporation that returns all excess revenues back
into the operation. The City of Seward has donated 10.5 acres of waterfront property for use
of the Center. A nonprofit organization called the Seward Association for the Advancement of
Marine Science (SAAMS) is the facilitator of this project: Once the. project is complete,
SAAMS only input to the operations is via a single seat on the Board of Directors. .
SAAMS has hired an internationally recognized aquarium design firm, Cambridge Seven
Associates, to head this project. .This firm has built several successful such attractions
throughout the world. Based on the initial design, construction costs for the Center is $46.3
million. Operating costs for an attendance of 450,000 per year is $4.6 million per annum. If
funding plans materialize, the Center could open in May 1996: .
Alaska's abundant marine resources demand such a Center. Rapidly declining populations of
certain marine mammals and seabirds have resulted in several being placed on the threatened
species list. Should these become endangered species, a severe impact on our fishing and
tourist industries will result. Despite this threat, there is no facilitY where these animals can be
held in their natural environment for long term studies that will help explain why these popula-
tions are declining. In fact no facility exists to even hold them north of Santa Cruz, Califor-
nia. Additionally, Alaska lacks any facility to hold and treat large marine mammals that are
injured, stranded or stressed by some other means. Approximately 300 to 600 such animals
are reported each year. Because of a lack of holding facilities, these animals remain untreated
and invariably die. The Alaska SeaLife Center will correct these shortcomings. It offers a
unique opportunity for the State to become a leader in marine research and rehabilitation.
.
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PUBLJ:C PROPERTY
!Ii 7.05.115
. n Article 5__TicJtllands
~
7.05.610 Purpose.
7.05.615 Defmitions.
7.05.620 Preference to upland owners.
7.05.625 Preference Right Application.
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Article 1. Generally4
7.05.110 Adoption of provisions and statutory authority.
These regulations are adopted by the city council pursuant to authority vested in that
body by the charter of the city and by the Alaska Land Act, AS 38.05.820, as amended.
(Ord. 98-04)
7.05.115 Definitions.
For purposes of this chapter, the following terms defined have the meaning provided
below unless the context requires otherwise.
"Acquisition" means to obtain ownership or interest in and to hold real property
within or outside the city boundaries by purchase, gift, donation, grant, dedication,
exchange, redemption, purchase or equity of redemption, operation of law, tax or lien
foreclosure. adverse possession, condemnation or declaration of taking, annexation, lease
or by any other lawful means of conveyances.
"City" means the city of Seward, Alaska.
"Disposition" means the transfer of city interest in real property by warranty or
quitclaim deed, easement. grant, permit, license. deed of trust, mortgage, contract of sale
of real property, plat dedication, lease, tax deed, will, or any other lawful method or mode
of conveyance or grant
"Encroachment" means any obstruction in, or intrusion into a delineated floodway,
right-of-way, easement, or public land or associated airspace.
"Essential terms and conditions" means a description of the real property involved;
the length or term of a lease; the sale, purchase or lease amount; any special deed
restrictions or covenants; and any special development requirements.
"Fair market value" means the highest price, described in terms of money, which the
property would bring if exposed for sale for a reasonable time in the open market, with
a seller, willing but not forced to sell, and a buyer, willing but not forced to buy, both
being fully informed of all the purposes for which the property is best adapted or could
be used.
"Real property interest" means any estate in land, including tide and submerged lands,
or improvements thereon. Rights-of-way, encroachments .or easements wherein no
Ii 7.05.120
PUBLIC PROPERTY
warranties are made and title is not transferred are regarded as not involving the disposal
of a party's interest in real property; thus, the execution of such documents are exempt
from provisions of charter ~ 12.3 (b) and ~ 7,QS.lIO, etseq. 'of this chapter.
"Structure" means any improvement, constructed or erected on or attached to the
ground or another structure, including, but not limited to, awnings, refuse container racks,
towers, sheds, signs and fences.
"Submerged lands" means those lands covered by tidal waters between the line of
mean low water and seaward to a distance of three geographical miles, or as may hereafter
be properly claimed by the city.
"Tidelands" means those lands which are peri04ically covered by tidal waters between
the elevation of mean high water and mean low water or are contained within' a recorded
Alaska Tideland Survey. (Ord. 98-04; Ord. 98"'()5)
./'
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7.05.120 Alternative means of real property acquisition or disposition.
The city council may acquire or dispose of interest in real property by negotiation.
public auction or sealed bid. (Ord. 98-04)
7.05.125 Public hearing and notice. .
Prior to disposition or acquisition or a real property interest by negotiation, public
auction or sealed bid, a public hearing shall be held. Notice of the public hearing shall
be published in a newspaper of general circulation in the city and shall be posted in at
least three public places within the city. Both posting and publication shall be done at least
ten days prior to the hearing. (Ord. 98-04)
7.05.130 Terms and conditions to be made available.
The notice of public hearing shall indicate where the public may obtain the essential
tenns and conditions of the proposed acquisition or disposition. A copy of the teIIIlS and
conditions shall be maintained for inspection at the office of the city clerk for at least ten
days prior to the hearing. (Ord. 98-04)
7.05.135 Authorizing resolution to approve terms and conditions.
At any time after the hearing required in ~ 7.05.125, the council shall make a finding
in an authorizing resolution that the essential terms and' conditions and the method of
acquisition or disposition are in the public interest. (Ord. 98-04)
7.05.140 Posting copy of resolution.
Upon adoption of a resolution approving an acquisition or disposition, the city clerk
shall cause a true copy of same to be posed for at least thirty days in at least three public
places within the city. (Ord. 98-04)
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Alaska Sea Life Center
{I' i II i/" It'.\ I (/ t b L' ,~<:' II
~
-; March 31, 1998
Thomas C. Tougas
President
Kenai Fjords Tours
P.O. Box 1889
Seward, AK. 99664
Re: Sublease Agreement between SAAMS and KFT
Dear Tom:
Enclosed please find a fully executed copy of the floating dock uplands sublease
. .
agreement for your records.
I have appreciated working on this project with you and Tim Lowe.
Sincerely,
'7)
C-
Darryl Schaefenneyer
Project Administrator
Enclosure
cc: Tim Lowe, KFT
"
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SUBLEASE AGREEMENT
. .. MAn-I... ::.... . .
. THIS SUBLEASE AGREEMENT (the "Sublease") is made as of F@bmary ~ r.t ,
1998 by and between SEWARD ASSOCIATION FOR THE ADVANCEMENT OF
MARINE SCIENCE ("SAAMS"), an Alaska nonprofit corporation, whose mailing address is
P.O. Box 1329, Seward, Alaska 99664, and ALASKA HERITAGE TOURS, INC., (the
"SUBLESSEE"), an Alaska corporation, whose mailing address is P.O. Box 1889, Seward,
Alaska 99664.
..
,
WHEREAS, SAAMS and the City of Seward (the "City") made and entered into that
certain Agreement for the FinanCing, Sublease, Construction, Operation and Maintenance of
the Alaska Sealife Center dated April 28, f995, as amended (the "Operating Lease"),
pursuant to which the City leased certain real property described therein (the "Property'') to
S~S; and .
"
WHEREAS, the City and SUBLESSEE are entering into a lease (the "Tidelands
Lease") of certain tidelands adjacent to the Property so that SUBLESSEE may construct and
operate a dock (the "Floating Dock") on those tidelands; and
WHEREAS, to obtain upland access to the. tidelands where the Floating Dock will be .
located, and to provide space for facilities of SUBLESSEE related to the dock, SUBLESSEE
proposes to sublease from SAAMS a portion of the Property (the "Sublease Site") under this
Sublease; and
WHEREAS, SAAMS has determined that a lease.. of the Sublease Site to
SUBLESSEE for the purposes described herein would be in best interest of SAAMS, and the
City has consented to this Sublease.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as foHows:
ARTICLE 1 - SUBLEASE SITE
1.1 Description a/Sublease Site. . The Sublease Site. is located in the City of Seward,
Alaska. The Sublease Site' is described as follows:
A parcel of real property consisting of uplands, within a portion of
Tract 2A, Waterfront Tracts, Plat No. 95-1.3, Seward Recording District,
State of Alaska; said parCel commencing at the Southwest corner of Lot
2, Waterfront Tracts, Plat No. 95-13; Thence.S 26033'50"E a distance
of 250 feet to an angle point on .the. Easterly boundary of a vacated
Municipal Dock and Access Road (see PI<>t 1IJn 0"_1 '2\ .1.____ n
Beginning for this descriptiop., thence N 270l3'23"E a distance of 68.97 .
feet, thence S 62046'37"E a distance of 43.50 feet, thence S
27013'23"W a distance of 68.97 feet, thence N.62046'37"W a distance
of 43.50 feet to the true point of begimiing, cpntaining 3,000 square feet
more or less, all according to the attached Exhibit A.
'.
The description of the Sublease Site in this section and in Exhibit A is subject to
modification after survey as provided in Section 1.3.
.. 1.2 Covenant of Quiet Enjoyment. Subject to encumbrances of record as of the date
hereof, and the provisions of the Operating Lease and this Sublease, SAAMS hereby
covenants and warrants that:
a)
SUBLESSEE shall have the quiet enjoyment and possession of the Sublease
Site for the full term of this Sublease;
b)
SAAMS has the right to possession of the Sublease Site on the terms set forth .
in the Operating LeaSe, and, subject to the conditions described in Section 2.2,
is fully empowered to enter into this Sublease.
c)
SAAMS is unaware of any prior conflicting use of the Sublease Site that would
adversely affect SUBLESSEE's intended use of the Sublease Site. .
1.3 Survey of Sub/ease Site. Within ninety (90) days after the date of this Sublease,
SUBLESSEE, at its sole cost, will cause the StibleaseSite to be surveyed by a land
surveyor registered in the State of Alaska upon' approval by SAAMS, 'a copy of the
drawing and description of the Sublease Site based upon this survey shall be attached
to this Sublease as Exhibit B and shall be incorporated herein by reference. The
description of the Sublease Site in Exhibit B shall supersede the description in Exhibit
A, and shall be considered the correct description of the Sublease Site for all purposes
under this Sublease.
1.4 Sub/ease Site Accepted "As-is'~ SUBLESSEE acknowledges that it has inspected the
Sublease Site and accepts the Same "as-is" and without reliance on any expressed or
implied representations or warranties of SAAMS,or agents of SAAMS; as to the
actual physical condition or characteristics thereof, including but not limited to the
description of the Sublease Site found in Section 1.1' and Exhibit A. . .' . .
1.5 Permits. SUBLESSEE; at its sole cost, shall obtain all permits .necessary to the
construction and operation of its facilities on the Sublease Site. . SAAMS agrees from
time to time, upon request of SUBLESSEE, to execute such docUments, petitions,
'" .. .. -,' ,'.
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tentative and Tmal tract approval and precise plan approval ~atis reqQiredfor'the.
lawful construction and operation of the facilities of SUBLESSEE perinitted on the. .
Sublease Site by the tenns.of this Sublease. Nothing in this Section imposes miy duty
or responsibility on SAAMS to assist SUBLESSEE in obtaining any other pennits or
appr~vals. . ....
ARTICLE 2 - SUBLEASE TERM
.!
2.1 Initial Term. The term of this Sublease (the "Sublease Tenn") shall commence upon
the effective date of the. resolution of the CitY approving the Tidelands Lease, and '
shall run concurrently with the term of the Tidelands, Lease for twenty (20) y~
ending September 30, 2018. If the Tidelands Leas.e is the subject of a referendum
petition as described .in Section 2.2 of the Tidelands Lease, this Sublease shall not
become effective unless and until the Tidelands Lease is approved by the voters of the
City of Seward as provided in Section 2.2 of the Tidelands Lease. .
.;
2.2 Options to Extend SUBLESSEE shall have the option to extend the term 'of this
Sublease for two additional five (5) year periods (cumulative extensions. not to exceed
ten years), provided that: . '.,
a) SUBLESSEE exercises any applicable option to extend at least one .hundred
and eighty (180) days prior to the expiration of the then current Sublease term;
b) SUBLESSEE is not in default under any term or provision of this Sublease;
c) SUBLESSEE shaII exercise its options to renew by sending .written notice
thereof in accordance with the provisions of Article 33 of this Sublease; and
d) The City, at the time eaCh option is exercised, approves a corresponding
extension to the term of the Tidelands Lease. .
2.3 Option to Terminate. Either party may terminate this Sublease be written notice to the
other if SUBLESSEE fails to operate the Floating Dock for twoconseeutive calendar
years.
ARTICLE 3 - RENT
3.1' Initial Rental Rate. For the 1998 calendar year, , SUBLESSEE shall pay SAAMS; rent
in the amount of One Dollar ($U>O) for each passenger who embarks froIIl, or '. ' .'
disembarks to, the Floating Dock; provided, howev~ that oilly $1.00 shall be payable
with respect to a passenger who embarks and disembarkson the ~e.~y under a
. rnnnrf_tr7n .,.;,...Ji.A+' , ' . , . . .
'.
3.2 Rental Rate Adjustments. The rental rate that is established in Section' 3.1 shall be .
adjusted for the 1999 calendar year and each subsequent ca1endlU- year as follows:' A .
rental rate shall be established with respect to passengers of each.i'qtialified. user" (as
aefmed in Section4.2(f)) to equal One Dollar ($1.00), plus Twenty-Five Cents($0~25)
for each integral multiple of 10,000 passengers in excess of the first 10,000
passengers, who embarked from, or disembarked to, a boat operated by that qualified
user at the Floating Dock during the preceding calendar year. Notwithstanding the
establishment of adjusted rental rates on a separate basis for passengers of each
qualified user, SUBLESSEE shall re responsible for paying rent toSAAMSat the
applicable rate for passengers. of all qualified users' .
1,-
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3.3 . SUBLESSEE Records; Required Reporting. SUBLESSEE shall maintain a detailed .
daily log of passenger. embarkations froin, and disembarkations to, the Floatirig Dock,
assigning each embarkation and disembarkation to a quaiified user. With each
monthly rent payment, SUBLESSEE shall deliver to SAAMS copies of the daily log
sheets for that month. Within 90 days after SUBLESSEE ceases Floating Dock
operations for a year, SUBLESSEE shall deliver.to SAAMS a rCport of the total
number of passenger embarkations from, and disembarkations to, the Floating Dock
during that year for each qualified user. Upon reasonable notice during regular
business hours, SAAMS or its representative may. inspect and. copy all business records
of SUBLESSEE, including without limitation the passenger log required by this
section, that evidence, in whoie or in part, the number of passengers that embark from,
or disembark to, the Floating Dock, and the qualified user to which each passenger
was assigned. . .
3.4 Payment of Rent. SUBLESSEE shall pay rent monthly in arrears, on or before the last
day of the month immediately following the month for which the rent is payable.
Each monthly rent payment shall be in an amount equal to the number of
embarkations and disembarkations during the month for which rent is payable,
multiplied by the applicable rental rate.
3.5 Late Payment Charge. Rental payments not received by the due date shall bear
'. interest Until paid at a rate of 10.5% per annum, or the maximum rate permi~ed tihder
Alaska law, whichever is less.
ARTICLE 4 - USE OF SUBLEASE SITE'
4.1 Use of Sublease Site. SUBLESSEE will use the SubleaSe Site solely for the
accommodation of passengers embarking from, .anddiseinbarking to, the Floating'
Dock. ..' .
4.2 Operations of SUBLESSEE.
a)
SUBLESSEE shall not permit persons to use the Sublease Site for access to the .
Floating Dock, except for employees and cdntraCtorsof SUBLESSEE and other ..
commercial tour boat operators, and passengers.of commercially operated tOur
boats that m:e moored at the Floating Dock. All movements of commercial tour
'boat passengers across the Sublease Site to or from the Floating,Dock shall
proceed only in the presence and under the supervision of employees of
SUBLESSEE.
..
b) Not later than April I of each year, SUBLESSEE shall notify SAAMS in
writing of days, and hours Within each day, that it will operate the Floating
Dock during that year. SUBLESSEE shall not change the days, or hours
within a day, that it operates the Floating Dock thereafter during that caIendar
year without first giving SAAMS at least 20 days'notice of the change.
c) SUBLESSEE shall not sell or offer for sale or permit others to sell Or offer to
sell, on the Sublease Site any merchandise or services (including without
limitation passage on any commercial tour boat; provided that SUBLESSEE
may distribute information concerning boat tours on: the Sublease Site. The
restriction in this paragraphoD sales and offers to sell shall not apply during
any period and to the same extent that SAAMS permits any. other toUr boat
operator to sell or offer for sale on the Property passage on commercialtour
boats).. SUBLESSEE shall not store any supplies, equipment or other personal
property on the Sublease Site..
d) SUBLESSEE shall be solely responsible to construct, the improvements
described in Article 6 (the "Sublease Improvements"), and to maintain,
operate and manage the Sublease Improvements. SUBLESSEE shall not
commence passenger embarkation and disembarkation operations on the
Sublease Site until the Sublease Improvements have been completed to
SAAMS' reasonable satisfaction, and meet all applicable regUlatory
requirements for their use and occupancy. . ,
e) SUBLESSEE shall at all times maintain the Sublease Site and Sublease
Improvements in good condition and repair, aDd shall keep them free of
hazards. SUBLESSEE shall report immediately to SAAMS any such hazard
that it discovers on the Sublease Site~ ' .
". .
f) . SUBLESSEE shall make a reasoDable effort to accoinmodate other qualified
users desiring to use the Floating Dock. Such use shall be on a scheduled basis
",,_1., ...._..1 :_ _____..1___..... ..':.1.. ___L 4.___ __ ~ .-.' . ..
i) Prior to its use of the. Floathtg DbCk, th~ user shallfumish SAAMS and.
SUBLESSEE with a certificate of insurance evidencing: .
'.
. .
. . ..
A) Bodily injury liability insurance in an amount not less that Five.
Hundred Thousand Dollars ($500,000). for anyone person and
not less than Five Million Dollars ($5,000,000) for anyone
accident or occurrence. . . .
..
B) Standard workers' compensation, employers' liability insurance
and longshoremen's and harbor work~s' compensation insurance.
. as may be required by state or federal law.
C) Property damage liability insurance, which shall mclude any and
all property whether or not in the care, custody or control of
user, in an amount of not less than Five Million Dollars
($5,000,000) on account of anyone accident. .
,
. .
ii) The insurance obtained pursuant to this Section shall name SAAMs and
SUBLESSEE as additional insureds, and provide for written notice of
any termination, cancellation, or expiration of the insurance to be .
delivered to the same no less than thirty (30) days before the effective.
. date thereof.
. .
ill) User shall be in good standing and compliance with other terms and
conditions as determined by SUBLESSEE for use of the Sublease Site.
4.3 Payment of Utilities and Taxes. Except as provided in Section 5.1, SUBLESSEE will
pay for utilities related to operations on the Sublease Site. SUBLESSEE will pay all
taxes related to operations on the Sublease Site and to SUBLESSEE's interest in this
Sublease, if any, before such obligations become delinquent; provid~ that
SUBLESSEE may, in good faith and before such delinquency, contest any such taX.
4.4 Other Uses. Nothing in this Sublease shall preclude SAAMS from entering into joint
marketing arrangements or other .transactions with competitors of SUBLESSEE, or .
from entering into other Subleases of the Property With competitors of SUBLESSEE.
ARTICLE 5 - UTll..ITIES AND RIGHTS OF ACCESS
5.1 Utilities. SUBLESSEE, at SUBLESSEE's sole cost and expense, may provide for the. .
extension of electric and telephone utility serviCe to the Sublease Site. . Such electric
service shall be limited to that which is reauired for lighting. necessary for . .
SUBLESSEE may extend electric utility service from a SAAMS facility ort the '.
. Property with the written approval of SAAMS. SUBLESSEE shall cOns1:rUct utility
extensions in accotoancewith~plans approved in writing by SAAMS, and with all
applicable regulations and requirements and the tariffs of the affected utilities. If
SUBLESSEE obtains electric service for the Sublease Site from a SAAMS facility on
the Property, (i) SUBLESSEE, at SUBLESSEE's sole cost and expense, shall fustal1
an appropriate meter at the location of its electrical connection to the SAAMS facility,
and (ii) pay to SAAMS monthly during SUBLESSEE's season of operation the greater
of (a) the cost of its electric power consumption at the electric utility's applicable' ,
metered rate, and (b) the sum of $100.
"
,
5.2 Access. From April 15 through September 30 of each year, SAAMS shall provide (i)
reasonable pedestrian access from Railway Avenue to the Sublease Site; (ii) access to
SAAMS' parking facilities for vehicle parking on the same terms that SAAMS offers
to the general public. '
ARTICLE 6 - CONSTRUCI10NBY SUBLESSEE
6.1 Sublease Site Improvements. SUBLESSEE shall have the right and responsibility to
plan, erigineer, COnstluct, transport, iilstall, situate, secure, equip, repair, refurbish, and
maintain the following improvements on the Sublease Site:
a) A concrete deck and ramp for ac~ to the Floating Dock. The deck and ramp
, may be covered with a metal and/or canvas canopy with a design that is '
compatible with the Alaska Sealife Center.
b) An 8'x 8'x 8' dock manager and information bocith. The booth may include a
sign with dimensions not exceeding 18" x 72" identifying the Alaska Sealife
Center dock. The booth also may include a sign not exceeding 18" x 48"
bearing'the words, "Kenai Fjords Tours." .
c) An effective barrier that is compatible with the design of the Alaska Sealife
Center to prevent wiauthoriZed aCcess between the Property and the Floating'
Dock.
6.2 Requirements for Sublease Improvements. All improvements to the Sublease Site ~
be subject to the following conditions:
a) SUBLESSEE shall cause 'all of the Sublease Improvements to becOm.pleted,
and a,}l of its construction materials and. equipment removedfcom the Sublease'
Site, ~fore May J, 1998; provided diat SUBLESSEE may:elect, by written
completed, and all of its construction materials and equipment reniov~d from ,
the Sublease Site, before May 15, 1999. '
b)
The cost of any such construction, reconstruction,. demolition,~r of any ,
changes, alterations or improvements; shall be borne and paid for by
SUBLESSEE.
'.
c)
The Sublease Site shall at all times be kept free cif mechanic's and
materialmen's liens. ,"
.
d) SUBLESSEE shall supply SAAMS with a copy of all building plans and
specifications and a site plan' or plans for the Sublease Site prior to
commencement of construction.
e) On completion of the improvements, SUBLESSEE shall provide SAAMS a
copy of an as-built survey depicting the improvements as completed.
,
f) Any general contractor employed by SUBLESSEE shall be appropriately
bonded by use of performance and labor and material payment bonds in the
customary form when cost of the wOrk is equal to or exceeds FIFTY' ,
THOUSAND DOLLARS ($50,000). Copies of all such bonds shall be '
furnished to SAAMS prior to commencement of construction. If the cost of
the work is less than FIFTY THOUSAND DOLLARS ($50,000.00),
SUBLESSEE shall provide SAAMS. if no performance and labor and material
bonds are provided by SUBLESSEE, any necessary asSlJranceor guarantees
that the contemplated work will be performed by the general contractor or by
SUBLESSEE. In the event that SUBLESSEE' elects to construct the facility
with its own personnel and equipment, or the personnel and equipment of any
corporation or person that is an "affiliate" of SUBLESSEE as such,term is
defined in AS 10.06.990(2)', a performance bond shall be required when the
cost Qf the work is equal to or exceeds FIFTY THOUSAND DOLLARS
($50,000). ' ,
g) SAAMS may, as contemplated by Alaska Statutes, give notice of non-
responsibility for any improvements constructed or effected by SUBLESSEE on
the Sublease Site. . '
h) SUBLESSEE shall comply with all federal, state and local statutes and
regulations with respect,tO such cons~ction. '
6.3 SAAMS Review of Construction. SAAMS shall have the right to rev.iew initial plans; . .
. including those supplied to SAAMS under Section 6.1 above, arid any future changes
or additions to SUBLESSEE's facilities on the Sublease Site, 1:>Y reviewing the design
thereof prior to the commencement of construction. SAAMS shall have the right to_.
comment upon that design and totequire SUBLESSEE to make reasonable changes.so.
as to avoid interference with SAAMS' operations, but the exercise of these rights shall
not imply any obligation to do so nor any obligation to do so nor any obligation t() do
so in a particular way. SUBLESSEE shall construct the facility.in accordance with
fmal design specifications approved by SAAMS. SAAMS's representatives may
monitor the work and shall have access to the site at all reasonable times.
SUBLESSEE shall he solely responsible for completing all improvements aecording to
SUBLESSEE's plans and specifications and shall bear all risk, responsibilitY,. and .
liability for properly surveying the Sublease Site before construction and to place all
improvements on the Sublease Site without encroaching upon any easements, rights-of-
way, or setback requirements. SUBLESSEE shall obtain the usual and customary
performance guarantees from its contractors, and SAAMS shall he named as. an
additional insured. .
"
.
~
ARTICLE 7. - RETURN OF SUBLEASE SITE/SITE CONDmONS
7.1 Return of Sublease Site. Upon termination of this Sublease for llnY reason, .
S.UBLESSEE shall return the Sublease Site to SAAMS in the same condition as at the
commencement of this Sublease, except that SUBLESSEE need not remove the
concrete deck and ramp, and the barrier preventing access between the Sublease Site
and the floating dock, to the extent that SAAMS determines that those improvements
will continue to he usable after the date of termination. . The. Sublease Site. shall be ..
free of all Hazardous Materials and contamination arising out of or resulting from
SUBLESSEE's operations.
ARTICLE 8 - FORCE MAJEURE
In the event either SUBLESSEE or SAAMS is delayed from performance of any of its
obligations under this. Sublease, due to acts of God, acts of the enemies of the United States
of America, sabotage, war, blockade, insurrection, not, epiden1ic, fire, flood, explosion, .
earthquake/tsunami, civil disturbance or war, the time period wherein .such performance is to
occur shall be extended by that ammmt of time necessary to compensate for the delay.
ARTICLE 9 - SUBLESSEE'S ACTS OFDEF.AULT .
Each of the following shall hea "SUBLESSEE Act of Default" under this Sublease
__ -' ~t.._ ~___ ,,_....~ ~~ ..l~f'~nl+" ..n~ "tipr'I11It" !l:hall mean. whenever they are used in this
9.1 Failure by SUBLESSEE to pay when -due the rent required to be paid under"this .
. Sublease. . "
",
. .
9.2 FailUre by SUBLESSEE to observe; fulfill or perform any covenants, conditions or
agreements on its part to be observed or performed under this Sublease for a period of
thirty (30) days after written notice specifying SUch failure, requestingtbat it be
remedied, and stating that it is a notice of default, has been given to SUBLESSEE by
SAAMS; provided, however, that if said default is such tlult it cannot be cOrrected.
within the applicable period, it shall not" constitute an act of default if corrective action
is instituted by SUBLESSEE within the applicable period and diligently pursued until
the default is corrected.
,
9.3 The making by SUBLESSEE of an assignment for the benefit of creditors, the filmg .
of a petition m bBnkruptcy by SUBLESSEE, the adjudication of SUl3LESSEE as
insolvent or bankrupt, the petition or application by SUBLESSEE to any tribunal. for
any receiver or any trustee for itself or for any substantial part of its property; or the
commencement of any proceeding relating to SUBLESSEE under any bankruptcy,
insolvency, reorganization, arrangement or readjustment of debt law or statute or
similar law or statute of any jurisdiction, whether now or hereafter m effect which
shall remain undismissed for a period of six (6) months from the date of
commencement thereof. . ..
9.4 Violation by SUBLESSEE of any laws or regulations of the United States, or of the
State of Alaska, or any conditions of any pemiits issued by agenCies of the City of
Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States
Government applicable to SUBLESSEE's use ofllie Sublease Site, pUrsuant to the
. regulations of such agencies, for a period of sixty (60) days after written notice
specifying such violation has been given by the agency charged with the enforcement
of such laws, regulations or permits to SUBLESSEE; provided, however, if such
violation be such that it cannot be corrected withiD. the applicable period, it shall not
constitute an act of default if corrective action is instituted by SUBLESSEE within the
. applicable period and diligently pursued until the violation is corrected. Fmthermore, if .
SUBLESSEE shall contest such alleged violation thrOugh appropriatejridicial or .
administrative channels, the time pCriOd Specified herein shall not commenCe until such
proceedings are finally determii:J.ed provided such prOCeedings are diligently. pursued;
provided, however, that any such extenSion of time sh8ll not be effective if the effecf
of the mterim administrative or judicial action is to cause a stoppage, mterruption O:r
threat to the activiti~ of any person or entity other than those of SUBLESSEE; .
9.5. . Failure by SUBLESSEE to construct, in accordance with Article 6 hereof, the Sublease .
cause; provided that tennination of the Tidelands Lease for the reason stated in SectioIl .
2.3 of this Sublease shall not be a SUBLESSEE act of default.
--- - -~._.~..- _.._._,-, ------.."---. --,-
. .
ARTICLE 10 - REMEDIES FOR DEFAULT BY SUBLESSEE
. Whenever an act of default by SUBLESSEE shall have occurred, and any applicable
period for giving notice and any opportunity to cure sluill have expired, SAAMSshall have
the following rights and remedies all in addition to any rights and remedies that may be given
to SAAMs by statute, common law or otherwise: .
,"
~
10.1 SAAMS may re-enter the Sublease Site and take possession thereof, and remove all
personal property of SUBLESSEE from the Sublease Site,. Such personal property may
be stored in place or may be removed and stored in a public warehouse. or elsewhere
at the cost of SUBLESSEE all without service of notice or resort to legal process, all
of which SUBLESSEE expressly waives.
10.2 In addition to the above, SAAMS may:
a) Declare. this Sublease terminated;
b) Collect any and all rents due or to become due from sub-tenants or other
occupants of the Sublease Site;
c) Recover, whether this. Sublease be terminated or. not, reasonable attorney's fees.
from SUBLESSEE and all other expenses incurred by SAAMS by reason of
the breach or default by SUBLESSEE; . .
d) Recover an amount to be due immedi~tely on breach equal to the rent reserved
under this Sublease discounted to the date of such breach at the rate of eight
percent (8%) per year. If the Sublease Site or any part thereof be re-Iet by
SAAMs for the unexpired term of this Sublease, SAAMS shall reimburse to.
SUBLESSEE upon receipt an amount not to exceed the amount'received by
SAAMS under this paragraph.
10.3 If SUBLESSEE does not immediately surrender possession of the Sublease Site after
termination by SAAMS and upon demand by SAAMS, SAAMS may forthwith enter .
into and upon and repossess the Sublease Site and expel SUBLESSEE without being
deemed guilty in any manner of trespass and without prejudice. to any remedies which
might otherwise be used for arrears of rent or breach of covenant.
'.
10.5 Each right and remedy of SAAMS provided form this Sublease shall be cutnulativ'e -
_ and shall be in addition to every other right or remedy provided for in this Sublease or
now or hereafter existing at law or in equity or by statute or otherwise, and the __
exercise or beginning of the exercise by SAAMS of any - one or more of the rights and
remedies provided for in this Sublease or now or hereafter existing at law or in equity
or by statute or otherwise shall not preclude the simultaneous or later exercise by -
SAAMS of any or all other-rights or remedies provided for-in this Sublease or now or
thereafter existing at law, or in equity or by statute or otherwise.
.,
,
10,6 No delay or omission to exercise any right or power accruing following an act of
default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power maybe exercised from time to time and as often
_ _ as may be deemed expedient
ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY SUBLESSEE
11.1 Improvement$. All Sublease Improvements remaining on the Sublease Site in
accordance with Section 7.1 shall become the property of SAAMS upon termination of
this Sublease for any reason. SAAMS may require SUBLESSEE to remove - any other
Sublease Improvements designated by SAAMS without cost to SAAMS.
ARTICLE 12 - SUBLEASE OR ASSIGNMENT
12.1 . Assignment of Sublease or Subleasing. SUBLESSEE may only aSsign or sublease this
Sublease or any part of the Sublease I)ite with SAAMS's prior written consent, which
sh8n be granted if:
a)
The use of the Sublease Site by the proposed assignee or sublessee is
compatible' with the use of the remainder of the PropertY;
b)
The use is found to be in the interest of SAAMS and the Alaska Sea1ife Center
_ by th~board of dirCctors of SAAMS;
c)
The assignee or sublessee -assumes and agrees in writing to pay and perform all
of the obligations of SUBLESSEE hereunder, including "without limitation
Article 17- Environmental Matters; - and -'
d)
The assignee or sublessee has a credit-worthiness demonstrated to be equal to
or better d1an that of SUBLESSEE and has operating experience suitable to
manage the facilities located on the Sublease Site.
. ARTICLE 13-- SUBLESSEE'S DUTY TO DEFEND/INDltMNIFY
.".. ~.
SUBLESSEE shall defend, indeninify and hold sAAMs hannless from any 'and. all
liability or claims for damages, including personal injuries, death and property dainage arising
out of or resulting from SUBLESSEE's use of the Sublease Site. or the use of the Sublease .
Site by. SUBLESSEE's sub-lessees, agents or contractors or the public, except for damages
arising from the sole negligence or willful acts or omissions of SAAMS, its agents,
employees, or contractors. If any action or proceeding is brought against SUBLESSEE .by
reason of any such occurrence, SUBLESSEE shall notify SAAMS promptly in writing of such
action or proceeding.
,
ARTICLE 14 - INSURANCE
14.1 Minimum Insurance Requirements. Prior to commencement of the Sublease Term,
SUBLESSEE shall procure and maintain, at SUBLESSEE's sole cost and expense,
commercial generiU liability insurance, with limits of liability of FIVE HUNDRED
THOUSAND DOLLARS ($500,000) for all injuries and/or deaths resUlting to any one
person and FIVE MILLION DOLLARS ($5,000,000) limit from anyone occurrence.
Coverage under such insurance shall also include explosion, collapSe and underground
property damage hazards. Such insurance shall include eontractua1liability. The
minimum amounts and types of insurance provided by SUBLESSEE shall be subject
to revision in accordance with standard insurance practices, in order to provide
continuously throughout the term of this Sublease and any extensions hereof, a level of
protection consonant with good business practice and accepted standards in the . .
industry. Such factors as increases in the cost of living, iriflationary pressures, and
other considerations, shall be utilized in assessing whether the minimum insurance
requirements should be increased. SAAMS may notify SUBLESSEE of any requested
increase in insurance coverage. - .
. All insurance policies shall provide for thirty (30) days' notice of cancellation and/or
material change to be sent to SAAMS at the address designated in ARTICLE 33 of
this SubleaSe. All such policies shall be written by insurance companies legally
authorized or licensed to do business in the State of Alaska, and acceptable to SAAMS
(Best's Rating B+ or better). SUBLESSEE shall furnish SAAMS, on forms supplied
by SAAMS, certificates evidencing that it has procured the insurance required herein
prior to the occupancy of the Sublease Site or operation by SUBLESSEE. Nothing
herein contained shall prevent SUBLESSEE or SAAMS from placing and maintaining
at SAAMS's or SUBLESSEE's own individual cost and expei1se, additional or other
insurance as may be desired.' .
.. ..t.
_ ~ ......1_ _ ~__&_____ __1.:_.:_.... _....,..'I'I.;...~ 0']11-..""'17120 gO ''1,,.11 ~c::!
'.
servants, agents or employees. SUBLESSEE. and SAAMS further agree to waive. and
agree to have their insurers waive any rights of subrogation (whether by loan receipts,
equitable.assignment or otherwise), with respect to deductiblesunder such poliCies and
with respect to damage to equipment including the loss of use thereof, whether insured
or not. SUBLESSEE shall also name.SAAMS as ail additional insured on the general
liability insurance policy .maintained by SUBLESSEE as required above, excluding
coverage for claims resulting from SAAMS's sole negligence.
w
ARTICLE 15 - CONDEMNATION
If all or any part of the Sublease Site is condemned for a public use by any
government agency or other duly authorized entity, SAAMS and SUBLESSEE shall each
make a claim against the condemning or taking authority for the amount of any damage
incurred by or done to them respectively as a result oillie taking. Neither SUBLESSEE nor
SAAMS shall have any rights in or to any award made to the other by the condemning
authority;. provided, that in the event of a single award to SAAMS which includes specific
damages for loss of .SUBLESSEE's leasehold interest, SAAMS shaII transnut to SUBLESSEE
the amount of such specific. damages so found, if any.
If part but not all of the Sublease Site is condemned for .public use, SUBLESSEE shall.
make a good faith determination as to whether or not the taking of the part of the Sublease
Site designated for condemnation will prevent it from continuing to operate on the Sublease
Site. If SUBLESSEE determines in good faith that the condemning of such part of the
Sublease Site will prevent it from continuing to operate on the Sublease Site, SUBLESSEE
may notify SAAMS in writing to this effect, and this Sublease shall then be terminated for all
purposes effective fifteen (15) days from the date SUBLESSEE sends such notice to SAAMS,
or at such other later date as SUBLESSEE shall specify in its notice, and such termination
shall be treated in the same manner as a teqniDation at the expiration of the term of this
Sublease. SUBLESSEE shall, as a condition precedent to such termination, remove all
encumbrances, debts and liens to which the Sublease Site is subject. If at the time of such
partial taking for public use, SUBLESSEE detennines that such partial taking will not prevent
it from continuing to operate, then SUBLESSEE and SAAMS shaII negotiate an equitable and
partial abatement of the rent beginning to be effective on theactuaI date when SUBLESSEE .
is. effectively preVented from utilizing the condemned lanel . .
ARTICLE 16 - MAINTENANCE AND REPAIRS
16.1 Normal Maintenance. During the entire term of this Sublease and every renewal or .
extension hereof, SUBLESSEE shall, at SUBLESSEE's sole cost, risk and expense,
maintain the Sublease Site, includirig the Sublease Improvements, in as good condition
8..'1 received or constructed bv SUBLESSEE. otdinarv wear and tear excented. ." Without.
prepare the Sublease Site for eventual development by SUBLESSEE or. others by
grading, filling or contouring the Sublease Site.
16.2 Safety Issues. Without ~suming any obligation to do so; SAAMSmay notify
. SUBLESSEE in writing of any deficiencies in SUBLESSEE's maintenance of the
Sublease Site and Site Improvements as they relate to public health or safety. Within
two (2) business days of receipt of such notice SUBLESSEE shaII.adviseSAAMS in
writing of its plan and schedule for curing the defi.ciencies.
(
ARTICLE 17 - ENVIRONMENTAL MAITERS
17.1 Hazardous Substances. SUBLESSEE certifies to SAAMS and agrees as follows:
a) SUBLESSEE will not cause or permit the Sublease Site 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 SUBLESSEE cause or permit asa resUlt of any
intentional or unintentional act or omission on the part of SUBLESSEE the
release of any Hazardous Substances on the Sublease Site.
b) SUBLESSEE will at all times and in all respects use its best efforts to comply
with all Environmental Laws. .
c) SUBLESSEE agrees to inunediately notify SAAMS if SUBLESSEE becoines
aware of (i) any Hazardous Substances or other environmental problem or
liability with respect to the SubleaSe Site, or (ii) any lien, action, or notice .
resulting from violation of any of the .laws, regulations, ordinances, or .orders
defined as Environmental Laws in Section 17.4. At SUBLESSEE's own cost,
SUBLESSEE shall take all actions which are necessary or desirable to clean up
any and all Hazardous SubstanceS affecting the. Sublease Site which occur after
the date of the execution of thiS Sublease. .
17.2 Indemnity of SAAMS.. SuBLESSEE shall.indemnify, defend, and hold SAAMS
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 SAAMS on or after the date of commencement of the Sublease term
arising directly or indirectly from or out of or in any way connected with (i) the
inaccuracy of the certifications contained in this Sublease; (il) any activities on the
Sublease Site during SUBLESSEE's possession or control of the Sublease Site which
directly or indirectly resulted in the Sublease Site being contaIninated with Hazardous
Suhlrtancell: fiii) the discovery of Hazardous Substances on the Sublease Site caused
17.3 .. The representations, warranties, and. covenants of SuBLESSEE set forth in this.
Sublease, including without limitation the indemnity provided for in Section 17.2, are .
separate and distinct obligations from SUBLESSEE's. obligations. otherwise provided
for herein and shall continue in effect after the expiration of this Sublease; -.
'. 17.4 As used in this Article: .
a)
"Hazardous Substances" means 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.
.
.
. _ .b) "Environmental Laws" means aIllocaI, state, and federal laws, ordinances,
regulations, and orders related to environmental protection; the use, storage,
. gene:r:ation, production, treatment, emission, discharge, remediation, removal,
disposal, or transport of any Hazardous Substance.
17.5 Permits and Reporting.
a) Permits Required by Governmental Agencies. SUBLESSEE. shall obtain all
permits or approvals required by anY applicable law or regulation. Copies of
all such permits shall be provided to SAAMS prior to SUBLESSEE .'
commencing work under this .Sublease. SUBLESSEE shall comply, and shall
remain in compliance during the term of this Sublease, with all stipulations,
" requirements, and conditions, within its power to perform, of any permit of any
governmental agency having jurisdiction with regard to the Sublease Site or the
Sublease Improvements, including but not limited to the Army Corps of
Engineers Permit. SUBLESSEE shall promptly. make all reports to any fedefal,
state or local government or agency required by any permit. or - Envirorimental
Law, including reports ()f any spill or discharge of Hazardous Material.
SAAMS may order SUBLESSEE to.iolmediate1y cease imy operations-or
activities on the Sublease Site if the same is being carried out without
necessary permits, in violation of the terms of any permit or Environmental
Law, or contrary to this' Sublease. . . . . .
b). Correspontience With and Reports to Environmental Agencies~SUBLESSEE.
shall immediately provide SAAMS with copies of all correspondence and
notice, including copies, of all reports betw~ SUBLESSEE and ~y state, .
. , __'_.'1l r_......_.-!_1 __.1-':_1.:.
ARTICLE 18 - ESTOPPEL CERTIFICATES
Either party shall at any time and from time to .time upon not less than ten (10) days' .
prior written request by the other party, execute, aCknowledge, and deliver to such party, or to
its designee, a statement in writing certifying that this Sublease is unamended and in full force
and effect (or, if there has been any amendment thereof, that the same is in full force and
effect as amended and stating the amendment or amendments), that there are no defaults
existing (or, if there is any claimed default, stating the nature and extent thereot); and stating
. the dates to which the rent and other charges have been paid in advance. . .
0'
.
.. ,
ARTICLE 19 - CONDmONS AND COVENANTS
All the provisions of this Sublease shall be deemed as running with the site, and shall
. be construed to be "conditions" as well as "covenants," as though the words specifically
expressing or imparting covenants and conditions were used in each separate provision.
ARTICLE 20 - NO WAIVER OF BREACH.
No failure by either SAAMS or SUBLESSEE to insist upon the strict performance by
the other of any term, covenant or condition of this. Sublease or to exercise any right or
remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of
such terms, covenants or conditions. No waiver of any breach shall affect or. alter this
Sublease, but each and every term, covenant and condition of this Sublease shall continue in
. full force and effect with respect to any other then existing or subsequent breach.
ARTICLE 21 - TIME OF THE ESSENCE ..
Time is of the essence of this Sublease. and of each provision.
ARTICLE 22 - COMPUTATION OF TIME
The time in which any act provided by this Sublease is to be done. by shall be ..
computed by excluding the first day and including the last, unless the last day is a Saturday,
Sunday ora holiday, and then it is also excluded. .
ARTICLE 23 - SUCCESSORS IN INTEREST
Each and all of the terms, covenants and conditions in this Sublease shall inure to the
benefit of and shall be binding upon the. successors in interest of SAAMS and SUBLESSEE,
A DTTrT.E 211_ ENTTRF. AGRF.F.MF.NT
covered by this Sublease, and no other agreement, statement or promise rriadeby any party
which is not contained in this Sublease shall be binding or valid,.
ARTICLE 25 -- GOVl:RNING LAW
'.
This Sublease shall be governed by, conStrued' and enforced in accordance \Vith the
laws of the State of Alaska. ... . . .
~
.
ARTICLE 26 - P ARTIAL INVALIDITY
If any provision of this Sublease is held by a court of competerit jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. ..
ARTICLE 27 - RELATIONSHIP OF PARTIES
Nothing in this Sublease shall create any relationship between SAAMS and
SUBLESSEE other than the relationship of lessee and lessor.
ARTICLE 28 - INTERPRETATION
. .
The language in all parts of this Sublease shall in.all~s be simply construed
according to its fair meaning and not for or against SAAMS or SUBLESSEE as both SAAMS
and SUBLESSEE have had the assistanCe of counsel in' drafting and reviewing this Sublease.
ARTICLE 29 - NUMBER AND GENDER
In this Sublease, the neuter gender inciudes the masculine and the feminine, and the
singular number includes the plural; the word "person" includes corporation, partnership, firm
or association wherever the context so requires.
. . .
ARTICLE 30 - MANDATORY AND PERMISSIVE .
...
"Shall," "will" and "agrees" are mandatory; ":niay" lspermissive, .
ARTICLE 31 - CAPTIONS
. . " .
Captions of the articles, paragraphs and subparagraphs of this. Sublease are for. .
convenience and reference only, and the". words contained therein shall in no way be held to
explain, modify, amplify or aid in the in~erpretati~n, construction or meaning of the provisions
. ARTICLE 32.--AMENDMENT
This Sublease is not subject to amendment except in writing executed by both parties
hereto.
ARTICLE 33 - NOnCES
,.
All notices, demands or requests from one party to another shall be delivered in person
or be sent by mail, certified or registered, postage prepaid, to the following addresses, or to
such other addresses as either party may designate ii1 writing from time to time.
.
To SAAMS:
Seward Association for the
Advancement of Marine Science
P.o. Box 1329
Seward, Alaska 99664
Attn: Executive Director
To SUBLESSEE:
KENAI FJORDS TOURS
P.O. Box 1889
Seward, Alaska 99664
Attn: President
ARTICLE 34 - RELATIONSIllP TO OTHER AGREEMENTS
SAAMS and SUBLESSEE from time to time may enter into agreements other than
this Sublease for joint marketing and for other purposes. Any stich agreements shall operate
and be interpreted independently of this Sublease. Unless the parties otherwise expressly
agree in writing, (i) no breach or default by.either party under this Sublease shall constitute a
breach or default under any such other agreement, and no breach .ordefault by either party .
under any such other agreement shall constitute. a breach or default under' this Sublease; and.
(ii) no termination of this Sublease shall effect a termination of any such other agreement, and
no termination of any such other agreement shall effect a termination of. this Sublease.
.' '" .
IN WITNESS WHEREOF,the.parties hereto have set their hands and seals the dates.
herein set forth.
SAAMS:
SUBLESSEE: .
.
.
SEWARD ASSOCIATION FOR THE .
ADVANCEMENT OF MARINE SCIENCE
ALASKA HERITAGE TOURS,
INC.
,~t/t
.
Thomas C. Tougas
President
Date: 7-/'2Z/'/8
/ I
STATE OF ALASKA )
) ss.
TmRD JUDICIAL DISTRICT )
The foregoing instrument was acknowledged before me this ;>l.f.~y of February
1998 by KimbaI A. Sundberg, Executive Director of Seward Association for the Advancement
of Marine Science, an Alaska nonprofit corporation, on behalf of the corporation.
NOTARY PUBUC
Kathleen L Amaato
STATE OF ALASKA
My commission expires 6/6I2ooJ
~.~ ;e..~~
Notary Public in and for 1!~, _ n.... I
My Commission Expires:~
STATE OF ALASKA
TInRD JUDICIAL DISTRICT
)
) ss.
)
The foregoing instrument was acknowledged before me this 7:htJ day of February
1998 by Thomas C. Tougas, President of Alaska Heritage Tours, Inc., an Alaska corporation,
on behalf of the corporation.
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CITY OF SEWARD, ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION 2006-11
."
.
A RESOLUTION OF THE SEWARD PLANNING AND ZONING
COMMISSION, GRANTING POLAR EQUIPMENT, DBA. POLAR
SEAFOOD A VARIANCE FROM SCC ~ 15.10.220 DEVELOPMENT
REQUIREMENTS TO ALLOW THE EXISTING ICE HOUSE AND
GRINDERlPIT AND THE PROPOSED FREEZER UNIT, WITHIN THE
NORTH AND SOUTH SIDE SETBACKS OF LOT 2, BLOCK 9, FOURTH
OF JULY CREEK SUBDIVISION, SEWARD MARINE INDUSTRIAL
CENTER, WITHIN THE INDUSTRIAL (I) ZONING DISTRICT
WHEREAS, Polar Equipment, dba Polar Seafood of Commerce has applied to the
Planning and Zoning Commission for a variance from Seward City Code 15.10.220
Development Requirements, to allow an existing ice house and grinder/pit and a proposed
freezer unit within the North and South setbacks of Lot 2, Block 9, Fourth of July Creek
Subdivision. Seward Marine Industrial Center; and
WHEREAS, the property is located in the Industrial district, and
WHEREAS, the property is unusual due to having no adjacent lands on three sides and
having a dock with a contiguous surface which wraps around the North and the West sides; and
WHEREAS, granting this variance will allow Polar Seafoods processing operations to be
expanded and will provide more employment opportunities, and
WHEREAS, having complied with the public notification process, on April 4, 2006 the
Seward Planning and Zoning Commission held the required public hearing on the Zoning
Development Requirements Variance application.
NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning
Commission that:
Section 1. The Commission has reviewed the request by Polar Equipment, Inc. dba Polar
Seafpods for a variance to allow a freezer unit to be built in the North setbacks and to allow for
.... ~__ L___~_ __...J --!_..J__J_:.... ~""""""~"" +_ ---.0;," wn t'h,:. ~l'\l1t'h Q.pthAl"'.1cQ At Tnt ,_
Seward Planning and Zoning Commission
Resolution 2006-11
Page 2 of 4
1. The proposed action must be consistent with all of the general conditions requiredfor
a conditional use permit; which are:
'.
(1) The use is consistent with the purpose of this chapter and the purposes of the
zoning district;
Finding: This condition has been met. Expanded fish processing operations are a
customary and traditional use within the Industrial zoning district.
(2) The value of the adjoining property will not be significantly impaired;
Finding: This condition has been met. There is no anticipated loss of value for the
adjoining property.
(3) The proposed use is in harmony with the Comprehensive Plan;
Finding: This condition has been met.
(4) Public services andfacilitks are adequate to serve the proposed use.
Finding: This condition has been met.
(5) The proposed use will not be harmful to the public safety, health or welfare.
Finding: This condition can be met by:
a. permanently removing all encroachments from the utility easements; and
b. obtaining the building permit for the proposed freezer unit; and
c. removing the abandoned vehicles, R V s and the other trash and junk on the areas leased
from the City; and
d. removing the entryway/vestibule which encroaches in the front yard setback on the
East side of the property.
(6) Any and all specific conditions deemed necessary by the commission to fuljill the
above-mentioned conditions shall be met by the applicant. These may include but are
not limited to measures relative to access, screening, site development, building design,
operation of the use and other similar aspects related to the proposed use.
Finding: This condition can be met by complying with the conditions specified above.
2. Special conditions and circumstances exist which are peculiar to the land or structures
~-- ....- - ------
Seward Planning and Zoning Commission
Resolution 2006-11
Page 3 of 4
Finding: This condition has been met. This land is very ililusuaIiD that if was built from
sheet piling which was filled and it protrudes into the bay and does not have adjoining
land on three sides. In addition, the City's dock wraps around the North and West sides
and is a contiguous surface.
.'
3. The special conditions and circumstances have not been caused by actions of the
applicant;
Finding: This condition has been met. The applicants are located on an unusual parcel
which protrudes into the Bay and does not have neighboring properties on three sides.
4. Financial hardship or inconvenience shall not be a reason for granting a variance;
Finding: This condition has been met. The setbacks do not serve their usual purposes for
this property, due to the lack of adjacent properties.
5. Other nonconforming land use or structures shall not be a reason for granting a
variance;
Finding: This condition has been met. Considemtion of other nonconforming land uses
or structures has not been a factor in the review of this application.
6. A variance shall be the minimum variance necessary to permit the reasonable
use of the land or structure;
Finding: This condition has been met. The encroachment in the front yard
setback on the East side of the property shall not be allowed to remain there.
7. A variance shall not be granted which will permit a land use in a district in
which that use is otherwise prohibited.
Finding: This condition has been met. The structuml additions are common and
necessary for fish processing opemtions.
Section 2. The Planning and Zoning Commission hereby gmnts a variance to
Polar Equipment, Inc., dba Polar Seafoods located at Lot 2, Block 9, Fourth of July Creek
Subdivision, Seward Marine Industrial Center in the Industrial (I) Zoning District, subject
to allow the freezer unit to be emplaced in the North setback to within less than a foot of
the lot line and to allow the ice house and grinder/pit to remain in the South setback
subject to the following conditions:
_1_ __...Ii ~___1. ....._ .1...... n_r.JIlC.'
Seward Planning and Zoning Commission
Resolution 2006-11
Page 4 of 4
3.
The entryway/vestibule which encroaches into the front yard setback on the
East side of the property shall be removed.
All permits shall be obtained for both the proposed freezer unit and a Iife-
safety review of the pre-existing ice house and grinder/pit shall be required.
4.
'.
Section 3. This resolution shall take effect ten (10) days following its adoption.
PASSED AND APPROVED by the Seward Planning and Zoning Commission this 4th day of
April, 2006.
THE CITY OF SEWARD, ALASKA
Marianna Keil, Chair
AYES:
NOES:
ABSENT:
ABSTAIN:
VACANT:
ATTEST:
Jean Lewis
City Clerk
(City Seal)
P&Z Agenda Statement
From:
April 4, 2006
Clark Corbridge, City Manager Cfd
Malcolm G. Brown, Planner //.#'tfL..
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Meeting Date:
Through:
Agenda Item:
Polar Equipment, Inc. dba Polar Seafoods
request for a variance to allow existing and planned
structures in the setbacks at Lot 2, Block 9, Fourth of
July Creek Subdivision, Seward Marine Industrial
Center
.
.
BACKGROUND & JUSTIDCATION:
Polar Equipment, Inc. dba Polar Seafoods (previously known as Ocean Beauty and Inlet
Salmon) has requested a variance in order to allow structures to be in the setbacks at Lot
2, Block 9, Fourth of July Creek Subdivision, Seward Marine Industrial Center. This
property is in the Industrial Zoning District (I). Their intent is to construct a freezer unit
in the North setback. There is also a pre-existing ice house and grinder/pit on the South
which was emplaced in the setback without City building permits.
The applicants are working with the City of Seward on a replat featuring lot line
vacations and proper rounding of the adjacent right of way which will allow for
amendment to their ongoing leases. This action could provide more space for operations.
However, upon receiving more information from the applicants about the dimensions of
their land and the dimensions of the desired freezer unit, it was determined that a variance
allowing the freezer unit to be built in the North setback was also required, as shown in
the site plan submitted by the applicant.
The setbacks in the Industrial district per SCC 15.10.220 Development Requirements are:
Front yard setback - twenty (20) feet
Side yard setback - ten (10) feet
Side yard setback adjacent to street - twenty (20) feet
Rear yard setback - ten (10) feet
Although the granting of variances is not a common action, variances exist to provide
options for unusual properties and situations. Polar Seafoods is located on a very unusual
piece of land. The land was made by filling in sheet pile and creating the City's dock,
Ulh;r.h wnms around the North and the West side of the land. The land and the City's
"
Due to the lack of adjacent properties, the common reasons for setbacks don't appear to
be necessary. The current reasons listed in the City Code for setbacks are:
see 15.10.220, Developmelltrequirements.
(c) Setbacks - Yards.
(1) Setbacks are required to insure sufficient open area for snow accumulation,
sunlight, views, privacy, fire separation and visual relief between structures (page 15-
30).
Due to the unusual nature of this property, a literal interpretation of the reasons for
setbacks does not appear applicable.
There are encroachments in the utility easements, including the entryway/vestibule on the
East side which also encroaches into the setback and there is a significant amount of junk
that needs to be removed. These discrepancies can be dealt with by requiring abatement
as a condition of the variance, as stated in the resolution.
Public input: At the time of printing, staff had not received any public inquiries
regarding this request.
Surrounding Land Use and Zoning: Lot 2, Block 9, Fourth of July Creek Subdivision,
Seward Marine Industrial Center is located within the Industrial Zoning District, a district
in which "the principal use of land is for business, manufacturing, processing, fabricating,
repair, assembly, storage, wholesaling and distributing operations, which may create
some nuisance and which are not properly associated nor compatible with residential land
uses. It is intended to provide environmental safeguards for people employed in or
visiting the district. Some visual amenity is expected in this district to make it
compatible with adjoining residential or business districts SCC 15.05.025 (10)." The
nearby lands are used for ship repair and related activities, since the land protrudes into
the bay there are no neighboring lands to the South, West or North, however the City
does operate and maintain a dock which 'wraps around" the West and North sides of this
lot.
Floodplain status: The floodplain status of this land has not been determined by FEMA.
Drainage/Snow shedding: Staff does not anticipate any impact on drainage due to this
activity. The building permit process will ensure that snow does not shed from the
proposed freezer unit onto the adjacent City dock.
Utilities: The property is served by existing public utilities and developed streets.
Size:
12,271 square feet, approximately .28 of an acre.
ZoniD!!:
Industrial (I).
Proposed Use: Polar Seafoods would like to expand their on-site processmg
capacity by adding a new freezer unit.
CONSISTENCY CHECKLIST:
Yes
No
1. Comprehensive Plan (2006) -L
The Comprehensive Plan encourages "a stable economic environment, economic
diversity, year-round businesses, environmentally responsible industry, and employment
that promotes a high standard of living (page 15)." Providing :freezer units allows for
more employment and minimizes the need to transport unprocessed fish to the other side
of the Peninsula for processing.
,l
2. Strategic Plan (1999) -L
This plan has a vision statement which "encourages growth of year-round businesses,
desires environmentally-responsible industry, and seeks jobs that promote a higher
standard of living (page 3)."
RECOMMENDATION:
Staff recommends that the commission approve Resolution 2006-11 granting a variance
to Polar Equipment, Inc., dba Polar Seafoods allowing the existing ice house and
grinder/pit and the proposed :freezer unit, within the North and South side setbacks of Lot
2, Block 9, Fourth of July Creek Subdivision, Seward Marine Industrial Center, within
the Industrial (I) Zoning District to be within the setbacks, as per SCC 15.10.220.
MAR-U~-LUUb IHU 11:04 AM
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CITY OF SEWARD
COMMUNITY DEVELOPMENT OFFICE
P.O. Box 167 . Seward, Alaska 99664
(907) 224-4048
.
/'
(
APPLICATION FOR ZONING VARIANCE.
This completed application is to be submitted to the Community Development Department no later then
three 13l weeks In advance of the next ragularly soheduled Plenning 8l Zoning Commission meeting held
the first Tuesday of each month. The application must be accompanied by the applicable fees
established by city resolution; and if property is already developed, an as-built survey prepared by Il
survayor registered In the Stete of Alaaka: or .csled site plan of undeveloped land which shDws: el .
property dimensions; bl location and dimensions of existing and planned buildings; cl parl<lng
configuration: dJ drlveways/accllili; ol natural features; fl vlIriance requested: end gl other pertinent
Information. . .
Applicant: Po \ 01..(" rt I.. ~ ~ M~^+ JVlc., (dbc-t..) fD\.c." Se.::-..%.>oJ$
. k 7~~3
Address: 1035 W. nL (3.\U A. AYle,lJ/-, , TelephoneNo.:70? 277.. (jLJOlJ
Property Owner {ifcthe.rtl'1erappllcantll Q ~+'f Q f. 5eLVO\.C--~ Lec-~ e l +0 'fblc,t' ~:ftl<..,1
. .:J:AC.
Address: Telephone No.:
Property Address: M ~ I e. fJ (\o.S \., is- A .
Lot Size:
(aores/SFl
Lot '7 Block Subdivision TlIX Parcel No. -"-"-
A. Variance ReqUestf~~ bv...\ \ l 'I ~ of (r~e.~~(" IT\.. (\l"){"t\.... '5-e -\ bc..ek
B. Theexlstingsltl,lationis: fee. I!"'....s.e., Wo<-ste. G\~V\~-e.{" /pi t ~ r--
,/ I
So",-t~ Se+ C)c..cK.'"
C. Grenting thil vllri.nce would permit:
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D. W.hat structures are located on the propertY?
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E. What Is the existing use of the property?
F. What Is the proposed use of the property?
G. What i, YO,ur development time ,chedule?
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The Planning & :Zoning Commission may only grant a varianca i1 the Commission finds all of the
following condltionll 8re met. Each condition must have. re$j)onse In 8& much detell 8& it tekea to
meet the condition. Please use addltlonal paper if there Is not enough room here for your respC!nse.
Failure to document your case reduces the likelihood of your variance being granted.
. The applicant hereby alleges that:
1. The proposed action III consiitent with 11I1 of the ganef'lll conditions required for 1!I conditional usa
permit a$ follows:
..
.
a. The use Is consistent with the purpose of the Zoning Code and the purposes of the %onlng
district: yes - ~n d"'-.S +r- \ c..o. \
b. The value of the adjoining property will not be significantly impaired: no :t"rI1 pc...\ t'"Mu'\r-
c..::.f\ ~~r'-~-c.~ iA.~-e. o:t- .:t::r1,LA!;. -1-,. ,c:..\ iZoV\.€-
Die. The proposed ulleill in ~1I1TJ11l'!'!y with the Seward compre~ensive Plan: Vc-S - T4.p .CP'1'reh<4l's /fle..
Llc..r'1 e.c..\lS ~{ More" J-ndv-stfy ~Y\ TI.t.. C:;~Lc.: c..~~,
d. public "lIlVices and facllltles are adequate to $GIVe the proposed us.: y~ 'S. -
.;2..0' a..c.~~S ~s,...,en~ ~ dock
e. The proposed use will n~l be harmful to the public safety, health or welfllr.:
l.A c.e... L.J ~ \ \ \'\.0 + \?..... I{... l";v> ~'-\ \
2, SpeQial conditions llnd clrcumsumcM exist which are peculiar to the hmd or 8tructUf9S Involved and
which are not applicable to other lands and structures In the semo cfJStrict. These speoial ~onditions
aro: .
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5,' Other nonconforming land uee or "ruatures within the district shall not be considered grounds for
granting a variance in ti-iat: (JOfle... c.s"e k ";0(.,)(\ 0 ~ 'I n i'\,.... ~f"eo......
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6, Thll variance granted is the minimum 'd.rillnCe that will make possible 1!I reasonable use of the land.
building Or structure in that: f) (!:) Cl... A ~ ~ ~o (\c... I L-. r'\ J ~ So ,q Uc.. 'i/ ~Io (-e.
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I hereby certify thtlt 811 stlltements and other information submitted are true and accurate to the best
of my knowledge, and that I. as applic8r1t. have.thJ following legal interest in the property: _Owner
of record; ...:.. Lessee; _ Contract PurchaseT;_iAiuly authorized to act for 8 person who hs& the
following Jegellnterest: ' . and that the owner of record Is knowledgeable of Is
applicatIon if] am not the owner. I understand that the \/ariance fee Is non-refum;lable e
COSt associated wlth processing application and that it does not ass al f
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Applicant's Signlltur . Pro~erty Owner's Signature
Enc: Fee: ~250 ( ) paid
Site plan' (I Loclltion Map (
As built survey (
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for adclltlonol ..- at a later dale wltlloul ____ can....t
ar SUR\'EYOR UI " >IaIotJon at ,..erGI Cop)l'lgl\t law, Ultl_
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......... In p......ratlon at thle product.
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NOT A \lAUD Copy W11\1OUT A SEAL
MORTGAGE LOCATION SURVEY
Scale:'" - 30' F.B. i: 2006-2
SEWARD ECORDING DIS1RICT
Plat: 97-27
,6
~ 2005
Mortgage Locotion Certlflcate
I hatey certify that this eurve~ '" a repreNntaUon
of the condItions thgt .or. found ot tho
time of the location aurYIlY was pwformcd on:
Lot ? Blk 9
Fourth of July Creek Subdivision
Seward Morine Industrial Center
and that this dg~m.nt does not constlwts a
boundar)' SI.lI"l8)' and Ie aubjeot to an~ Inoc:cur
ael.. that ~ ~b""U~t boUnda~y !/JNe)' may
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LEGEND
. Rebgr (found)
IA PK Noll (found)
2006
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Record of Decision
Seward Planning and Zoning Commission
Boat Storage, Commercial and Storage, Outdoor, Yard, MateriaVEquipment, Zoning
Violation Determination
March 16, 2006
.
.
City of Seward v Appellant, Jerry Waliezer
Evidence used to base the decision is as follows:
Sworn testimony by Jerry Waliezer, Owner of property
Sworn testimony by Clark Corbridge, City Manager
Appeals hearing information packet
Three additional items were introduced into the appeals hearing upon agreement
of both parties:
Large land use map
2004 Building Permit for original fence
2005 Building Permit for repair of original fence
Seward City Code
The Appeals Hearing by the Seward Planning and Zoning Commission was properly
noticed.
The Seward Planning and Zoning Commission Finds the Following:
1. The property is described as:
Lots 7 & 8 Block 3 Oceanview Subdivision and is currently zoned Central
Business District (CBD). The underlying land use plan is Auto
Commercial (AC).
Note: Public notice, appeal hearing packet & all documents, incorrectly
identify the property as Lot 7, Block 3 Oceanveiw Subdivision.
2. Jerry Waliezer is the owner of the lots described. According to testimony, he
purchased the property in 2004. The existing use of the property was Storage, outdoor.
Mr. Waliezer also testified that he continued the use of the lots for storage shortly after
purchasing and cleaning up the property. Both, Appellant and City, agreed that the
improvements to the lots substantially changed the appearance for the better.
3. Mr. Waliezer was authorized and issued a building permit to erect a fence in June
. 'I _ _ __ .L1.. _ 1_... _1___ 'l.7-:#^,-_ +_r.+:--."....l'
L-___ ~ -'-____L..-____~_ .:r~
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4. Mr. Waliezer requested the buildingpennit, BP 2005-51, on ] 0-14-2005 to repair
--damagedfence.The class of work on the permit was marked commercial.
~
.
5. A citizen complaint was received in the late fall of2oo4 but no action wall taken
on the alleged violation until Mr. Waliezer applied for the building permit to repair the
existing fence.
6. Staff denied the building permit due to their detennination that there was a zoning
violation. Reference page 7 - Zoning - Site Plan Review, permit "denied due to ongoing
zoning violation, boat storage is not allowed in the CBD. Parking is allowed for only 72
hours." Conunission was unable to find any reference to 72 hour parking limitation in the
Seward City Code.
7. Mr. Waliezer admits that Storage, outdoor as defined in the Seward City Code
(SCe) is taking place on the lots. Boats and other miscellaneous have been stored on this
lot.
8. Mr. Waliezer testified that boat owners are not being charged for storage of boats.
He stated that he is not conducting his business on this property although he is using this
property in support of his business located in the Industrial Zone by providing storage
after servicing the boat and until customer's can retrieve their property or prior to
servicing the boat. All servicing is done at his site located in the Industrial zone not on
the property addressed in this appeal. He also stated he does not enforce any time limit on
the use of the storage.
9. Although the underlying land use is Auto Commercial the applicant currently is
not interested in pursuing a rezone.
10. Undisputed knowledge by long-time member of the community and Planning &
Zoning Conunission member, Margaret Anderson, confirmed use of the lots was
historically Storage, outdoor since before the 1964 earthquake.
.
11. Storage, outdoor is a conditional use in Auto Commercial and not in CBD.
Storage, outdoor is defined in the code as, "Storage, outdoor. The commercial keeping, in
an unroofed area and usually enclosed by a fence, of any goods, junk, material,
merchandise or vehicles in the same place for an extended period of time. In the harbor
commercial area, the use is limited to the storage of boats only.
12. Boat storage is allowed outright in Auto Commercial and not CBD. Boat, storage
commercial is undefined in the code.
L____
14. The decision by the Planning and Zoning Staff would not have been incorrect or ..
inconsistent for new uses of these lots.
15. Seward City Code 15.10.315 allows the continuation of nonconforming uses as
legal under certain circumstances.
16. . The City was not timely in addressing the building permit. The City is addressing .
the timeliness issues by a proposing a new, streamlined permitting process.
.
.
Conclusions of Law:
It is the determination of the Seward Planning and Zoning Commission that the
continuous, historical use of Lots 7, 8 Block 3 ofOceanview Subdivision, legally existed
prior to June 6, 1978 and is considered a non-conforming use according to Seward City
Code 15.10.315. Therefore, the use of the lots for Storage, outdooris not in violation of
the Seward City Code.
THE CITY OF SEWARD
Marianna Keil, Chair
Seward Planning and Zoning Commission
ArrEST:
Jean Lewis, CMC
City Clerk
.
.
(City Seal)
Sponsored by: Applicant
"
CITY OF SEWARD, ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION 2006-10
A RESOLUTION OF THE SEWARD PLANNING AND ZONING
COMMISSION, SUPPORTING THE CONCEPT OF THE MARINERS
MEMORIAL FOR THE SMALL BOAT HARBOR
WHEREAS, all historic settlers of Resurrection Bay arrived by boat; and
WHEREAS, the first American pioneer settlers of Seward arrived by steamship from
Seattle; and
WHEREAS, Seward's position as an ice-free seaport in south-central Alaska has directly
influenced our history and economy; and
WHEREAS, Seward currently does not have a memorial honoring those who have
risked hazardous sea voyages in the course of building our community and others who lost their
lives in our local waters; and
WHEREAS, the fishing industry has been a mainstay of the community for more than a
century; and
WHEREAS, memorial plaques commemorating local mariners do not have a dedicated
memorial for display; and
WHEREAS, the Mariners Memorial would provide a good venue for Seward's annual
Blessing of the Fleet and other marine-oriented ceremonies, and
WHEREAS, a Mariners Memorial will serve as a monument to our maritime history;
and
WHEREAS, a donation in March 2004 of $1000 (one thousand dollars) by the Kenai
Fjords Yacht Club has started a Mariners' Memorial Fund through the 2003 Seward Centennial
non-profit account; and
WHEREAS, additional donations and grants to fund the design, construction, and
maintenance of a mariners' memorial will continue to be sought by local organizations and
Seward Planning and Zoning Commission
Resolution No. 2006-10
Page 2
NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning
Commission that:
"
Section 1. The Planning and Zoning Commission supports the concept of a Mariners
Memorial for the Seward Small Boat Harbor.
Section 2. The design, construction, and maintenance of the memorial will be funded by
grants and donations to the Mariners' Memorial Fund.
Section 3. This resolution shall take effect immediately upon its adoption
PASSED AND APPROVED by the Seward Planning and Zoning Commission this 4th
day of April, 2006.
THE CITY OF SEWARD, ALASKA
Marianna Keil, Chair
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Jean Lewis, CMC
Planning and Zoning Agenda Statement
To:
Planning and Zoning Commission
Meeting Date:
April 4, 2006
March 7, 2006 (postponed)
Through:
Clark Corbridge, City Manager
Malcolm Brown, Planner I,I/~s..-
From:
Agenda Item:
Resolution 2006-1 0, supporting the concept of the Mariners Memorial for the
Seward Small Boat Harbor
BACKGROUND & mSTIFICATION:
The Kenai Fjords Yacht Club has submitted a request of support for the concept of a
Mariners Memorial for the Seward Small Boat Harbor. This has been an ongoing project for several
years.
Numerous civic and social organizations throughout the community support the Mariners
Memorial. Letters of support, including the Port and Commerce Advisory Board, Resolution 2004-
07 and the Historic Preservation Commission, Resolution 2006-01 are included in the packet for
your reVIew.
A Mariner's Memorial Fund has been established at the First National Bank. Local
organizations and individuals will continue to pursue additional donations and grants to fund the
design, construction and maintenance of the Mariner's Memorial.
RECOMMENDATION:
Commission approve Resolution 2006-10, supporting the concept of the Mariners Memorial for the
Seward Small Boat Harbor.
.
.
. MARINER'S MEMORIAL
a proposal
This is a proposal to the City of Seward to further the case for the construction of
a Mariner's Memorial for the people of Seward to honor those lost at sea.
.'
There has long been a need in Seward for a separate place to honor the mariner's
who have lost their lives at sea. A place where the annual Blessing of the Fleet
can accommodate the growing crowds wishing to participate in the ceremony.
Without a sacred space for the living to honor their dead, plaques have appeared
around the docks on the harbor. A plaque to a lost mariner has even appeared on
the memorial to those lost in the earthquake, for lack of an appropriate space.
The City of Seward Port and Commerce Advisory Board, Passed Resolution
2004-07, September 1st, 2004, urging the City of Seward to designate a portion
of the new south harbor uplands addition for the location of the Mariner's
Memorial and in the conceptual plans for the new fill area, a space has been
suggested for a memorial site.
The Kenai Fjords Yacht Club has been instrumental in shepherding this cause.
Nina Daley as past Commodore and with the support of the Club saw the Port and
Commerce Committee resolution to completion. Now, as the new Commodore, I
(Sue Kaanta) have been asked by Harbormaster Scott Ransom to continue with
this project.
During the Harbor Opening Day weekend, 2005 we offered a display of ideas for
a memorial that had been sent to the Kenai Fjords Yacht Club for consideration.
There was a voting box alongside the display. The final tally showed a preference
for a simple, elegant design suggested by one of our local mariners. It is this
suggestion that we will be using to further our efforts towards making the
Mariner's Memorial a reality. This memorial would be as maintenance free as
possible. The winning selection is the first stage in the construction of a ship. It
is the length of wood (could be represented by a bent I beam) that rises to the
bowsprit. This keel would be embedded in a rectangular base of cement that
'.
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.
.
supports the bowsprit. The fence would hold the memorial plaques. Benches
would be spaced around looking out to sea, encouraging quiet contemplation.
A lovely place to create just the meditative atmosphere would be the southeastern
point of the fill area. Although the design proposed would take up roughly a 30 x
30 space, we feel the eventual expansion of the Memorial as the honorees grow,
will necessitate 100 feet to each side of the small point. Accessibility is a
consideration, parking nearby and wheel chair access for visitors. Benches will be
available for quiet contemplation, and possibly a wind break for comfort. An
indication of the space to be used in comparison the the overall land available is
attached along with a rendition of the proposed memorial.
A Mariner's Memorial Fund has been established at 1 st National Bank. It is under
the non-profit umbrella of the 2003 Seward Centennial. As the land becomes
available and the City moves forward with their plans, this fund will grow to the
point a committee will be formed to decide on the construction and maintenance
of the memorial as well as oversee the ordering and placement of the memorial
plaques. Suggestions for this committee would be a representative from the
commercial fishing community, one member from each of the two yacht clubs in
Seward and a representative from the Harbormaster's office and perhaps an altar
seat given to an interested member of the community. This committee would
determine the maintenance of the fund and the Memorial through the charges for
plaques to be displayed within the memorial area.
As this is City property we are talking about, we envision the Harbor crew on
their way to survey the new docks would keep an eye on any maintenance that
needs to be drawn to the attention of the Memorial Committee.
The time-line for this project will be determined when the Corps of Engineers
transfers this land to the City of Seward. When the land has been secured and the
City of Seward has allocated the land for the Memorial, with the funding in place,
it is estimated that the structure could be built within three months.
Attachments:
1. Port & Commerce Resolution of Support
2. PM'Its ~. Conceptual Plan
3. Platt showing requested property
4. Photo of property & suggested design
,..
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Sponsored by: Staff
CITY OF SEWARD, ALASKA
mSTORIC PRESERVATION COMMISSION
RESOLUTION 2006-01
.'
A RESOLUTION OF THE SEWARD mSTORIC PRESERVATION
COMMISSION, SUPPORTING THE CONCEPT OF THE MARINERS
MEMORIAL FOR THE SEWARD SMALL BOAT HARBOR
WHEREAS, the fIrst ship built in Alaska is believed to have been built in the Resurrection
Bay area; and
WHEREAS, the historic settlers of Resurrection Bay all arrived by boat; and
WHEREAS, the fIrst American pioneer settlers of Seward arrived by steamship; and
WHEREAS, Seward's history and economy has continued to be directly influenced by its
position as an ice-free seaport in south central Alaska; and
WHEREAS, Seward does not have a memorial honoring those who have risked hazardous
sea voyages in the course of building our community and others who lost their lives in our local
waters; and
WHEREAS, the fIshing industry has been a main stay of the community for more than a
century; and
WHEREAS, memorial plaques commemorating local mariners currently do not have a
dedicated memorial for display; and
WHEREAS, Seward needs a good venue for its annual Blessing of the Fleet and other
marine-oriented ceremonies, and
WHEREAS, a Mariners Memorial will serve as a monument to our maritime history; and
WHEREAS, the Kenai Fjords Yacht Club donated $1000 (one thousand dollars) in March
2004 to start a Mariners' Memorial Fund through the 2003 Seward Centennial non-profIt account;
and
.
.
Seward Historic Preservation Commission
Resolution 2006-01
Page 2
--- -. --..---
".
NOW, THEREFORE, BE IT RESOLVED by the Seward Historic Preservation
Commission that:
Section 1. The Historic Preservation Commission supports the concept of a Mariners
Memorial for the Seward Small Boat Harbor.
Section 2. The design, construction, and maintenance of the memorial will be funded by
grants and donations to the Mariners' Memorial Fund.
Section 3. This resolution shall take effect immediately upon its adoption
PASSED AND APPROVED by the Seward Historic Preservation Commission this 15111 day
of February 2006.
THE CITY OF SEWARD, ALASKA
Tom Swann, Vice-Chair
AYES:
NOES:
ABSENT:
ABSTAIN:
Park, Rowell, Walker-Hettinger, Swann
None
Huber, Carpenter, Kovac
None
ATTEST:
.
-
CITY OF SEWARD, ALASKA
PORT AND COMMERCE ADVISORY BOARD
RESOLUTION 2004-07
A RESOLUTION OF THE PORT AND COMMERCE ADVISORY BOARD
OF THE CITY OF SEWARD, ALASKA, SUPPORTING THE DESIGNATION
OF A PORTION OF THE NEW SOUTH HARBOR UPLANDS ADDITION AS
THE SITE FOR A MARINERS' MEMORIAL
.'
WHEREAS, Seward's history and economy are tied to its position as a seaport; and
WHEREAS, Seward has no memorial representing the many locals who dedicated their lives
to service at sea, and others who lost their lives in our local waters; and
WHEREAS, survivors of local mariners have had memorial plaques made but have no
where designated to display them; and
WHEREAS, Seward has no good venue for its annual Blessing of the Fleet and other
marine-oriented ceremonies; and
WHEREAS, a mariners' memorial could also serve as a reminder of our maritime history
and the importance of safe boating practices; and
WHEREAS, the local Kenai Fjords Yacht Club donated $1000 (one-thousand dollars) in
March 2004 to start a Mariner' Memorial Fund through the 2003 Seward Centennial non-profit
account; and
WHEREAS, other donations and grants would be sought by local residents and
organizations to fund the design, construction, and maintenance of the mariner's memorial.
NOW, THEREFORE, BE IT RESOL YED BY THE PORT AND COMMERCE
ADVISORY BOARD OF THE CITY OF SEWARD, ALASKA, THAT:
Section 1. The Port and Commerce Advisory Board supports designating a portion of the
new south harbor uplands addition for the location of a mariners' memorial.
Section 2. The mariners' memorial would be funded by the Mariners' Memorial Fund.
Section 3. Other donations and grants would be sought to fund the design, construction, and
maintenance of the mariners' memorial.
CITY OF SEWARD, ALAS.
PORT AND COMMERCE .A1rvISORY BOARD
RESOLUTION 2004-07
e
PASSED AND APPROVED by the Port and Commerce Advisory Board of Seward, Alaska, this 1 st
day of September 2004.
".
PORT AND COMMERCE ADVISORY BOARD
~0Y;.IA~
DEBO~ ALTERMATT, CHAIR
AYES:
NOES:
ABSENT
ABSTAIN:
Altermatt, Lechner, Tougas, Van Buskirk, Jordan, Waliezer, Whitman,
None
Mercer
None
ATTEST:
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Seward Charter Boat Association
P.G. Box Y1 Seward, AK 00664
December 16, 2005
The Seward Charter Boat Association would like to endorse the Seward Mariner's
Memorial which is being proposed by the Kenai Fjords Yacht Club. Members of the
SCBA agree that there has long been a need to create a facility which would honor the
mariner's and members of our community who have been lost at sea.
."
The SCBA encourages the Seward City Council to expand on Resolution 2004-07 and
acquire the necessary permits to establish and maintain the Memorial as proposed by the
Kenai Fjords Yacht Club. The placement of the memorial is best suited on the newly
developed breakwater as it will provide a scenic and sincere place to reflect upon those
we have lost.
CllY OF SEWARD
~
Niklas Ranta
President, Seward Charter Boat Association
JAN - 9 2(Xi
PlANNING OFFICE
.
.
CITY OF SEWARD
P. O. Box 167
13004" Avenue
Seward, Alaska 99664
"
Harbor Department
907.2243138 907.224.7187 fax
swdhbr@arclic.net
www.seward.net/sewardharbor
CITY OF SEWARD
'.
December 21, 2005
Sue Kaanta, Commodore
William H. Seward Yacht Club
Seward Small Boat Harbor
Seward, AK 99664
JAN - 9 .
PlANNING OFFICE
Dear Sue,
. First I would like to wish you and all of your members a Merry Christmas and
Happy New Year. It was a memorable year to have the Tall Ship, Cuauhtemoc
visit Seward.
You asked if I would submit a letter of support for the Mariner's Memorial; I am
writing to support and assist in any way. For many years there have been requests
for a place where family members could display an item or plaque in memory of a
loved one. There have also been requests for a site where services for the Blessing
of the Fleet could be held. Also, we all know of moments in our lives when we
seek a place for quiet reflection on the beach. A Mariner's Memorial located at a
site on the new fill area would be used and appreciated by all mariners.
Sincerely,
~4~
Scott A. Ransom
Harbormaster
City of Seward
.
F/VKruzof
.
JIM & RIIONDA HUBBARD
P. O. Box 3302 . Seward, Alaska 99664
Phone: (9fT7) 224-7342 · Fax: (9fT7) 224-,5572
To All Interested Parties:
I. OIlY OF SEWARD
1 JAN 2. 7 2006
PlANNING OFFICE
January 7, 2005
Mariner's Memorial
C/O KFYC
P.O. Box 2505
Seward, Ak 99664
RE: MARINER'S MEMORIAL
As members of the maritime community in Seward, and who make a living on the ocean
commercial fishing, I find it very appropriate for Seward to have some land designated .
for the placement of a Mariners Memorial. Seward bas a history of being a port town.
. and much of its socio-econornics revolves around activities in the harbor and port.
I fully support the efforts by the Kenai Fjords Yaeht Club in working to secure land for
this proposed memorial, and encourage the City to allow space for such. May this
correspondence be accepted as an expression of encouragement and support in taking the
necessary steps to create a Marine Memorial for our community.
I look forwaroto being updated on this project and would welcome any further requests
needed in making this project happen. Thank you for including us in the planning and
potential implementation of this Memorial
2~/ ,;10'1--1
J~& Rho.ff~~
Owner Opemtors of the
FN Kruzof
J&R Fisheries
.
.
24 January 2006
I CITY OF SEWARD"
JAN 2 7 2006
PLANNING OFFice
Mariner's Memorial
Kenai Fjords Yacht Club
P.o. Box 2505
SeVfard,AJk 99664
Re: Harbor South Addition Memorial Site
Dear KFYC Commodore;
This letter IS to offer the support of the Harbor Business Association tOVfard the
construction of a Mariner's Memorial for SeVfard. We feel there has long been a need for
one specific location for the seafarer's memorials that are appearing here and there
around the harbor.
,
We Vfould like to specifically support the proposed location for the Memorial on"the
southeast comer of the Harbor fill area bordering the south harbor breabvater. This
seems the logical space for a Memorial, offering an unobstructed vieVf, ease of parking,
and enough distance from the bustle of the inner harbor to provide space for
contemplation.
Thank you for your efforts on behalf of the Marin~r' s Memorial.
Sincerely,
Debotah Altermatt
President
Harbor Business Association
.
.
lUiiiIL .
Alaska Transportation Company LLC.
SEWARD HERTZ CAR RENTAL
600 PORT AVENUE
P.O. BOX 2127
SEWARD, ALASKA 99664
907-224-4378
FAX: 907-224-5928
CITY OF SEWARD
..
JAN 2 7 2006
PlANNING OFFIce
January 17,2006
To: City of Seward,
Seward Planning & Zoning Commission,
Mariner's Memorial c/o Kenai Fjords Yacht Club
We have reviewed the plans for the proposed Mariner's Memorial and would like
to voice our support for the project. The effort to designate a portion of the new south
harbor uplands for a memorial park and overlook makes good sense. The location is
appropriate and the need to honor those who have dedicated their lives to the sea is clear.
This is a forward-looking project that will help to accommodate the growing
number of memorial plaques that have been placed at various locations. A memorial and
park will also offer the community a good location for the annual blessing of our local
fleet.
Our economy and community history is deeply linked to the fishing and marine
trades. This is the best way to honor those friends and family members who have lost
their lives at sea and recognize those who continue to carry on the tradition of a seafaring
life.
SinC~ d
.
.
METCO, INC.
2701 Seward Highway
Seward, Alaska 99664
(907) 224-3151
Fax: (907) 224-3514
January 19, 2006
Mariner's Memorial
c/o KFYC
P.O. Box 2505
Seward, AK 99664
To Whom It May Concern:
I would like to express my support for a Mariner's Memorial in Seward. I think
it's very important to the community to have a Mariner's Memorial and would
very much like to see one in Seward. Thank you.
Sincerely,
.13~ f}~@'r~
Barbara Dieckgraeff
,
e
.
.
Alaska Sea Life Center.
windows to the sea
CrTY OF SEWARD
.'
MAR 2 0 2006
January 26,2006
PlANNING OFFICE
Mariner's Memorial
c/o KFYC
P.O. Box 2505
Sevvard,AJ< 99664
On behalf of the Alaska SeaLife Center, I vvant to express our organization's support
for the planned design and location of the Mariner's Memorial. Maritime activities
have been an important part ofSevvard's history and economy, and community
members and visitors should be reminded of the challenges and dangers facing those
vvho venture out into Alaskan vvaters for vvork and recreation.
Given its accessibility and relatively quiet setting, the nevv addition to the south
harbor seems an appropriate place for the memorial. We hope that the City of Sevvard
vvill allocate that land for the project, and that it vvill be completed soon.
Sincerely,
.
.
February 10, 2006
Sue Kaanta
Commodore
Kenai Fjords Yacht Club
PO Box 2505
Seward, AK 99664
Dear Ms. Kaanta,
This letter is to express the Seward Chamber of Commerce's support for your efforts to develop a
Mariner's Memorial for the community of Seward.
As a port community, Seward's history has long been tied to the ocean. Our forefathers helped to build
Alaska through our seaport and over the years, Seward's extended family has earned their living and
enjoyed their free time on the sea. Unfortunately, such a lifestyle has its inherent risks, and the Seward
community has been touched by loss over the years. Several plaques of remembrance already exist in
the small boat harbor in remembrance of these sacrifices. A specially-designated memorial will offer a
shared place where family, friends and residents can join together to pay their respects and honor
those lost.
It is fitting that Seward commemorate those lives lost at sea and provide a place for remembrance and
reflection. Appropriately located, a Mariner's Memorial will honor individuals and remind all those who
see the Memorial of Seward's place as a longtime Alaskan seaport.
The Seward Chamber of Commerce endorses your efforts and offers our assistance as you work with
the City of Seward to identify a location that best meets the goals of this project.
Sincerely,
~/~
Laura S. Cloward,
Executive Director, Seward Chamber of Commerce
~...
....
.
.
ROTARY CLUB OF SEWARD
P.O. Box 3121
SEWARD, ALASKA 99664
.'
February 16,2006
Sue Kaanta
KFYC
PO Box 2505
Seward, Alaska 99664
Dear Sue,
Thank you very much for your recent presentation to the Seward Rotary Club about the plans for
a mariner's memorial. The Club was very supportive of the project as presented. This letter is to
reaffirm that support and request that you keep the Club informed on its progress.
SEWARD ECONOMIC DEVELOP~ COUNCIL
SEWARD, ALASKA 99664
February 17, 2006
.
To those Concerned
with the development of the proposed,
"Seward Memorial to Seamen,"
. .Thank you very much for your recent information about the plans for a mariner's
memorial. The Seward Economic Development Council is very supportive of the prQject
as presented. This letter is to affirm that support, and request that you keep the Seward
: Economic Development Council, informed on its progress.
Sincerely,
~
President, Seward Economic Development Council
.
.
RD.-... E....a Marile bMS
P.O. BOX 2464
SEWARD, AK 99664
Tel. (907) 224-7068
Fax (907) 224-5707
<r1mS@ptialaska.net>
American Boat and yadt CoIIICi
... Unled St~es !iJrveyor's Associatbn
Society of Naval Archleds and Harne Engineers
4'
March 4, 2006
City of Seward,
Planning and Zoning Commission
Honorable Commissioners,
I've had the great pleasure of being spending years of work and play in and around the
Seward Small Boat Harbor, and have been involved in activities and organizations whose
goal is to support and enhance the Harbor for our own use now and into the future. One
especially worthy goal before us now is a Mariner's Memorial
Those ofus drawn to the sea acknowledge that there are risks involved; yet we follow our
calling. With diligence and a bit of luck, we come safely back to land after each voyage.
The longer we keep at it, the list of names in our memory becomes longer of those who
didn't come back. We can't bring them back, but we can honor them.
One of the best ways I can think. of to do that is by creating a monument to their lives that
not only gives us place to reflect on those we knew, but would give our visitors a glimpse
of what it means to be seafarers and a seafaring community.
The idea of such a memorial has been around for quite a while, but has recently been
refined by the Kenai Fjords Yacht Cub into a really nice looking, low impact and
welcoming design. Similarly, location has been a topic of some discussion in the past, but
has now come together in suggesting the East end of the area newly created by the harbor
dredging project. The Club has put together a proposed site plan that situates the
Memorial right at the breakwater to be visible from passing vessels as well as from shore.
This location requires only a modest footprint that complements rather than competes
with other future uses of the area. I hope you will agree that not every square foot of
uplands adjacent to the harbor be reserved for parking or commercial use, and I
respectfully urge you to endorse the lo~on and the plan so well crafted by all those
involved over the years.
-
....
...
.
.
To: Seward Planning and Zoning Commission
Seward City Council and Mayor
March 5. 2006
From: Tanya Sandefur
Box 1515, Seward, Alaslw
This letter is to ask you to please support the presented proposal by the Kenai Fjords
Yacht Club to allow a Mariners Memorial to be located on a portion of land on the new
uplands developed by the new harbor expansion. The idea of a Mariners Memorial has
been mentioned as a needed community project for many years. It was listed as one of
the top priorities by our centennial committee in 2002 which I was a participating
volunteer. The Kenai Fjords Y 8cbt club has kept this idea and dream of so many people
alive and well. Please put aside a portion of this little part of Seward for the family and
friends of Mariners in which to; preserve a hallowed place for the many souls who gave
their lives to and for the sea; to preserve our history and connection to the sea; and to
include people who would like to visit a beautiful place to show their respect and love for
the sea and everything that is connected to it.
Sincerely,
/~-S~
Tanya Sandefur )
I fff
p.o. Box 584
Seward, Alaska 99664
(907) 224-7254
www.aksaltwatercharters.com
.'
March 7, 2006
Seward Planning and Zoning Commission
Seward, AK 99664
Dear Commissioners,
I would like to encourage the Seward Planning and Zoning Commission to approve the concept
to support a Mariner's Memorial on the new area created by dredge spoils in the south Harbor
area.
Many other seaports have set aside areas to honor people lost to the sea. The one I am most
familiar with is in Homer. This area serves as a place where locals can go and reflect on friends
and family lost. The proximity to the sea offers a space for quiet contemplation. Ceremonies are
held annually to remember those already gone and sadly, to add names of those lost in the
preceding year. I even attended a wedding at the Homer memorial several years ago. Each of
these spots has special meaning not only to those directly affected by loss but also to visitors
trying to understand our ties to the sea
Seward has a unique opportunity now with the new space created by harbor dredging. An area
put aside for a memorial on this land would do nothing of detriment and only add a special
perspective to what already exists.
Thank you for your time and consideration in this matter.
:h::~.~
Dianne M. Dubuc
Owner/Operator
Alaska Saltwater Charters
110
P&Z Agenda Statement
Meeting Date:
April 4" 2006
.. 0" 5'-1<;
~~'f>
t: ~\.2 _ -~ 'd
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"'\~;:..
qi"~~~
4t.A-S~P:
Through:
Clark Corbridge, City Manager
Malcolm G. Brown, Planner ~ .LIt!-...,
From:
Agenda Item:
Review of the work session topics as prioritized at the annual March
21, 2005 City Council/Planning Commission work session
BACKGROUND & JUSTIFICATION:
These projects and priorities were discussed at the annual joint Council/Planning
Commission work session held on March 21, 2006.
Plannine: Proiects
1. ADA Transition Plan - The ADA Transition Plan needs to be completed. Add ADA
review to building permit review and include it for Certificate of Occupancy review.
Encourage increased communications between the Building Inspector and the
Commission. Encourage the Independent Living Center to provide facility
inspections and status updates.
2. Capital Improvement Plan -The Capital Improvement Plans may be reviewed by the
Commission prior to submittal to Council. If a two year budget cycle is approved by
Council, this type of revi ew could be done in the off year.
3. ARRC Master Plan - Maintain involvement with the process and review the ARRC
Master Plan. Encourage the ARRC to make presentations on this plan.
.
4. Airport Master Plan - Submit recommendations on the Airport Master Plan to
DOTPF. The draft should be ready for review once the environmental studies have
been completed.
5. Municipal Lands ManaJ!ement Plan (1995) - recommend to Council that it be
updated. This update could be done by administration.
6. Parks and Recreation Master Plan (1993) - recommend to Council that it be updated.
/71
9. State lands and ROW Recommendations. Become more involved and provide
recommendations to Council on local DOT projects. Research the level of
involvement provided by the Anchorage Metropolitan Area Transportation Study
(AMATS) and/or similar bodies.
10. Coastal Zone Management Plan. Make recommendations to the Borough on the
Coastal Zone Management Plan.
Code Revisions
1. Nonconforming structures and setbacks - Ongoing, being reviewed through work
sessions and applicant driven P&Z actions. Review and recommend vacation of
excess easements. Publicize the need to post street addresses.
2. Subdivision Ordinance Revision - Ongoing, the form needs to be revised.
3. Historic Overlav District - Investigate historic structure construction exemptions, with
the full involvement of the Historic Preservation Commission. Encourage a joint
work session and resolution.
4. Definitions - Consolidate the Title 15 defInitions and consider reformatting sections
as needed.
5. Waterway buffers - research buffer options and seek training. Encourage the
involvement of the Seward Bear Creek Flood Service Area Board and the USFS.
6. Parking - Amend the City Parking Ordinance to bring it in compliance with ADA.
Seek public involvement in the process.
City Land. Right-or-Wavs & Platting Proiects
1. City Land disposal oolicies and orocedures - Clarify, emphasize land use permits
when more appropriate than leases and emphasize use of the Municipal Lands
Management Plan.
2. Two Lakes Park Reolat - Ongoing, all private in holdings have been acquired. Vacate
interior lot lines and right-of-ways, and ensure accesses are maintained. Acquire the
29 adjoining acres in USS 1931. Hopefully Parks and Recreation will be able to seek
grants to assist with this project.
3. Waterfront Park Replat - Vacate interior lot lines and right-of-ways. Administration
needs to initiate action on it.
/'7J-
4. Transfer the old National Guard armory to A VfEC - Encourage in order to maintain
access to Two Lakes Park. Staff will need to do research and forward to the
Commission and Council.
5. ARRC Lands - Continue to work with the Borough and the ARRC to ensure orderly
development and subdivision activities take place prior to development. Invite the
ARRC to make a presentation.
6. Clearview Subdivision Utility Easement! Allev - Conduct outreach with the property
owners in the subdivision to seek solutions. The utility easement might be eligible
for prescriptive easement status.
7. Nash Road bench study - Use dedicated proceeds from sale of City land to Anderson.
Forward to the Commission then to Council during the budget sessions.
Enforcement
1. Specific Packets with Checklists - When a building permit is applied for, issue the
development requirements for the zoning district under consideration. Encourage
tight response times for permit reviews.
2. Conditional Use Permits - Have staff bring before the Commission for an annual
reVIew.
3. Zoning Code Violations - Proactively evaluate methods to obtain compliance
including researching techniques and procedures for issuance of citations. Encourage
public education.
4. Trainimz - Seek training on land use regulation processes, CUPs, spot zoning, overlay
districts, platting, Open Meeting Act and overall review of duties and responsibilities
of the Planning Commission.
5. Community Values Meeting - Hold an annual work session which will encourage the
public to speak out on which community values they want changed or sustained.
preferably in the third week of September.
RECOMMENDATION:
These concerns could be brought forward in a Resolution format, staff could provide that at the
May meeting.
/7 ?/
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6. Page 22
Call to order
The March 7, 2006 regular meeting of the Seward Planning & Zoning Commission was
called to order at 7:30 p.m. by Marianna Keil, Chair.
#.
Opening Ceremony
Commissioner Smith led the Pledge of Allegiance to the flag.
Roll Call
There were present:
Marianna Keil presiding, and
Margaret Anderson Kevin Clark
Sandie Roach' Tom Smith
Kay Strobel
comprising a quorum of the Commission; and
Clark Corbridge, City Manager
Donna Glenz, Planning Assistant
Absent was:
Lynn Hohl excused
City Administration Report
City Manager, Clark Corbridge - updated the Commission on the following business items:
~ Noted the date change of the upcoming zoning violation appeal hearing from March 14 to
March 16,2006 at 6:30 pm.
~ Reminded the Commission of the March 21, 2006 work session with Council at 6:30 pm.
~ Noted a public open house for the Long Term Care Facility on March 22, 2006 at 6:00 pm
followed by a CUP work session at 7:30 pm.
~ Introduced Marsha Vincent, the new Boards and Commission Liaison.
~ Administration stated the intent was to hire a full time temporary Assistant Planner by the
end of March.
~ Noted Commissioner Hohl requested the proposed ADA parking code amendment be
postponed.
~ Stated Tom Shepard, Building Official and Kris Erchinger, Finance Director was present to
give a presentation to the Commission on the Long Term Care Facility.
~ He noted a floodplain expert, Mike Frison, with Enterprise Engineering, was present in the
audience for any floodplain questions regarding the Long Term Care Facility.
/7Lj
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 23
KPB Planning Commission Report by Lynn Hohl
No report was available.
- .
Other Reports, Announcements and Presentations
Liaison from Seward Bear Creek Flood Sen'ice Area Board
Randy Stauffer, noted Clark Cox of State Department <>fNlltural Resources had attended the
regular March meeting. Cox had addressed the flood bOardteg~g the state fees charged for
removal of gravel located in any navigable streams. Stauger s~ these fees were of great concern
to the board. Cox explained to the board the state fees wen;: in p1lKie by state statute and presently
DNR saw no way to except the flood board frompllying these fees. Stauffer confirmed the flood
board was continuing to work on the issue.
Stauffer noted the flood board had no Qfficial comments regarding the location of the Long
Term Care Facility at the present time.
Tom Shepard, Project C09~?jnlltor for the Lo~}TennCare Facility. . fie gave an overview
of the project. He stated the proJ~;had~gunwith COtUl.fil making it the number one project in
2003 and ending with a move-in date of JanWll'y 2008. He noted several public meetings had been
held and several more were planned intl1e fu~..The projeCt~as designed around the "Green
House" approach for th<(facility. Shepard Presen~ a y~deo regarding the concept oflong-term care.
Citizens' Comments.op Any Subject exceptThose Items Scheduled For Public Hearing- None
Sue~atP~~insidetq~ SitYiSP9~~ to the~ers Memorial project. She encouraged the
Commissi9Q to suPPOrt the meqlorial project. .s;lJ,e noted the support for the memorial location was
the harborcmd of the newly formed breakwater.
TanyaS~ndefur, inside: the Ciij'. Supported the Mariners Memorial project. She spoke
strongly for the loCation request of the newly formed breakwater.
.
Dianne Dubuc,inllidethe City. Voiced strong support for the newly formed breakwater area
as the location for the Ma,mers Memorial location and requested the Commission support the
project.
Approval of Agenda and Cop!lent Agenda
Motion (Smith/Anderson)
Approve the Agenda and Consent Agenda
Consent Agenda included the FebfWll'y 7, 2006 regular meeting minutes as written.
Keil called for Unanimous consent
/7:;-
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 24
Motion Passed
Unanimous Consent
Special Items
Election of Chair and Vice-Chair
Keil opened the floor to nominations for Chair.
Motion (AndersonIRoach)
Elect Marianna Keil Chair
Request for other nominations, seeing none nominations were closed.
Request for Unanimous Consent
Motion Passed
Unanimous Consent
Keil opened the floor to nominations for Vice-Chair.
Motion (Smith/Anderson)
Elect Tom Smith Vice-Chair
Request for other nominations, seeing none nominations were closed.
Request for Unanimous Consent
Motion Passed
Unanimous Consent
Public Hearings
Resolution 2006-05 recommending City Council and Kenai Peninsula Borough
approval of the Fort aaymondSubdivision, Replat Number 3, are-subdivision
of Lots l1A & 12A Fort Raymond Subdivision Number 1
Corbridge, oriented the:: Commission and the public to the location of the replat. He noted
the property was currently two lots, owned by the City of Seward. He stated Council had selected
the approximated 5 acres area to the south as the future site of the Long Term Care Facility.
Corbridge recommended Commission approval of Resolution 2006-05.
Keil requested staff address the floodplain issues regarding the parcel.
Tom Shepard, introduced the floodplain expert, Mike Frison, Enterprise Engineering.
Frison, reviewed the floodplain area. He noted the area was located in the 100-year
floodplain. Construction was allowed in the flood fringe area however FEMArequired miti~ation
when building in these areas. FrisOn wormed the Commission of the numerous agencies ourrently
11&
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 25
being worked with for permitting and mitigation requirements. He reviewed and answered several
questions from the Commission.
-.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened.
Dale Hoogland, inside the City. Supported the Long Term Care Facility project. He spoke
strongly against the site location. He stated historic flooding and the possible tsunami run-up zone
was a concern. Hoogland pointed out the tremendous amount of cost involved with the fill required
and possible piling needed. Did not support the replat or the rezone.
Carol Griswold, inside the City. Voiced concerns with the location choice for the facility.
She noted she had submitted a length review, which was included in the packet. She stated she had
continued to suggest the location be moved to the north end of the same property owned by the City,
where the zoning was currently Institutional and would allow the platted Park area to remain.
Randy Stauffer, inside the City. Reminded the Commission the area was inundated with
floodwaters in both the 1986 and J995 recent flood events. Voiced concern with any Federal
funding being allowed in a flood hazard area.
Tom Shepard, City Project Coordinator. He noted the base flood elevations were 34 feet for
the area, he stated the Seward Highway, to the east Was built at3! feet.
Kris Ercbinger, City Finance Director. Gave a brief review of the process that had taken
place for the site selection for the Long Term Care Facility. She noted that a tremendous amount of
time had gone into trying to locate the new Long Term Care Facility at the current facility location on
First Avenue. She stated that co--Iocation with the hospital had been an issue that had been struggled
through by administration for quite some time. Council gave direction to select property owned by
the City and elected not to look into any selection of private land. She also noted funding for the
project was notfrom Federal or State funding.
No one else requested to be heard and the public bearing was closed
Motion (Anderson/Clark)
Approve Resolution 2006-05
Anderson stated she supported the area to the north be developed as a park and not a
campground.
Clark voiced concern for the past flooding in the area however; he stated several mitigation
efforts had been completed since those events. He reminded the Commission that Council had
already selected the site and the Commission's job was to review the platting action.
Roach spoke to possible liability illsues regarQing flooding and the very l~ge issue oftnd'fic
congestion in the area since the ()petiit:l~ of the new middle school.
/77
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 26
The Commission discussed issues regarding the possible flooding of the area. It was noted
the issues should be dealt with during the Conditional Use Permit process.
Motion Passed
Unanimous
Resolution 2~ recommending City Council approval of amending the Land
Use Plan and Zoning from Park (P) to Institutional (I) of the south portion of
Lot llA, Fort Raymond Subdivision Replat Number 1
.:
Corbridge reviewed and noted staff recommended approval of the resolution before the
Commission.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened.
Dale Hoogland, inside the City. Reiterated his concerns regarding the possibility of flooding
of the area. He did not support the rezone.
Carol Griswold, inside the City. Spoke against the rezone. She requested the Commission
retain the park zoning and recommend the site selection be moved to the north in an area currently
zoned Institutional. She recommended the Commission add an amendment to the resolution that
required the parcel to revert back to Park zoning if the project was not completed within a certain
time frame.
Mike Frison, Enterprise iEngineering. Reviewed the floodway and the flood fringe
distinction. He Iloted he was currently working with Christy Miller, State Floodplain Manager
regarding. the flooding issues and concerns.
Louie Bencardino, inside the City. Voiced strong concerns for the noise level that was
present in the selected area H:e noted the highway was tremendously noisy but the idling train only a
very short distance way.
Kris Erchinger, inside the City. Stated the noise issues of the railroad and the highway had
already been considered and were beiIlg addressed by the architect.
No one else requested to be heard and the public hearing was closed
~
Motion (StrobeVSmith)
Approve Resolution 2006-06
Motion (Smith/Strobel)
Amend Resolution 2006-06, add section 3
to read, "The area to the north not
dedicated to the Long Term Care Facility
be reserved, designated and designed as
Park." (area to be known as Lot llA-2)
/1t
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 27
Anderson supported developing the area as a park and not allowing it to be used as a
campground.
Motion Passed
Yes: Anderson, Strobel, Smith, Roach', Keil
No: Clark
Motion (SmitblStrobel)
Amend Resolution 2006-06, If the Long
Term Care Facility is not constructed
within four (4) years the parcel, Lot llA,
addressed in the resolution shall revert
back to Park Zoning.
Clark stated once the Council changed the Zoning on a piece of property he did not feel
the change could revert back to previous zoning without going through the entire public process.
Anderson felt even if the facility was not built on the site that there was a higher and
better use for the property than Park Zoning.
Motion Failed
Yes: Strobel, Smith, Roach'
No: Anderson, Clark, Keil
Motion (SmithlStrobel)
Amend ReSolution 2006-06, Ordinance,
(page 22 of the packet), the 7tb Whereas;
change the word "can" to will
Motion Passed
Unanimous
Vote on Resolution 2006-06, as amended
Motion Passed
Unanimous
10 Minute Break
Resolution 2006-07 recommending City Council amend Seward City Code
Parking Requirements, 15.10.215 to ensure compliance with the parking
requirements of the Federal Americans Disabilities Act
Corbridge stated the recommendation to change the Seward parking code was a type of
housekeeping matter to bring the City Code into compliance with the Federal mandates of the
Americans with Disabilities Act.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened. No one requested to be heard and the public hearing was closed.
/7q
,
City of Seward. Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 28
Motion (Roach'/Anderson)
Approve Resolution 2006-07
Motion (Roach'ISmith)
Postpone Resolution 2006-07 until the April
4, 2006.
Roach' noted Commissioner Hohl had requested the Commission postpone Resolution 2006- .-
07 until she was available to comment.
Request for Unanimous Consent
Motion Passed
Unanimous Consent
Resolution 2006-08 amending Conditional Use Permit, issued by P&Z
Resolution 97-03 to allow the Seward Association for the Advancement of
Marine Science (SAAM) (commonly known as Alaska SeaLife Center) to install
and operate a dock for charter boat operation
Corbridge stated the job before the Commission was to submit findings and determine what
mitigation was necessary to ameliorate anticipated impacts for both the immediate area and the
community at large. Once the mitigation findings were made to the current Conditional Use Permit,
administration recommended approving the resolution.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened.
Sharon Anderson,Alaska SeaLife Center Board member living in California. She stated
she was to work with the PORTICO group to develop initial plans for a long-term plan for the
Alaska SeaLife Center. Requested the approval and support of the Commission in the SeaLife
Center projects.
Ned Smith, Alaska SeaLife Center Board member living in California. Urged the
Commission to support the proposed "on the water program" of the Alaska SeaLife Center.
Tanya Sandefur, inside the City. Noted she had called the Alaska SeaLife Center and had
spoken with an employee in the administration office (Nancy Anderson) and was told that SAAMS
no longer existed. Sandefur requested the question of who was sAAMS be cleared up before any
lease move forward. She voiced concern with the City supporting and allowing a ''non-profit'' to
compete directly with local private enterprise. Requested the Commission postpone this resolution.
..-
~
Dianne Dubuc, inside the City. She owns and operates Alaskan Saltwater Charters. She
voice strong concerns against Resolution 2006-08 and 09. She noted that as a non-profit, the Alaska
SeaLife Center was not obligated to collect or pay City or Borough sale tax. She spoke against the
Alaska SeaLife Center plan to pl:l11n~ with a for profj.t company to provide ~ter tows. She
questioned the $3.50 per person tax initiated January 2006. If the operation was allowed to move
/80
City o/Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 2 9
forward she requested the for profit company operating under the umbrella of the Alaska SeaLife
Center be held accountable for all the fees other companies were required to pay. She spoke strongly
against the operation.
Tylan Schrock, Executive Director, Alaska SeaLife Center. Stated all passengers were to be
charged the passenger transit fee. He stated the proposal was a very simple lease amendment. He
stated he wanted to make several points very clear. He stated "SAAMS and the Alaska SeaLife
Center were the exact same thing. SAAMS was the corporate name and the Alaska SeaLife Center
was the conunon name". "SAAMS is private, not for profit." He noted the project was an
educational tour not a charter. He urged support for the approval of Resolution 2006-08.
Dan McDonald, Director of Marine Operations for Kenai Fjords Tours (KFT). He voiced
concern with the Alaska SeaLife Center proposal to compete directly with the private sector. KIT
currently does provide educational tours. KFT had previously operated a tour from the location
proposed by the Alaska SeaLife Center. He noted that often the weather conditions did not allow for
safe operation of a dock in that location. He opposed the approval of Resolution 2006-06
Scott Torrison, Chief Operating Officer forCIRI Alaska Tours. Spoke strongly in
opposition to the resolution. He spoke against the project noting it was in direct competition with
private enterprise. He stated he felt the proposed operation was not in the public interest reiterating
the life safety issues previously mentioned. Voiced strong opposition to the project.
Gary Sommerfeld, Major Marine Tours. He supported the comments of the previous
operators of the conununity in speaking against the Alaska SeaLife proposed project and the direct
competition with private enterprise,
Rick Blythe, Director of Visitor Services, Alaska SeaLife Center. He stated the Alaska
SeaLife was in direct competition with all business in Seward. He stated the Center was asking for
the exact same lease issues as the Kenai Fjords Tours was faced with in the 1998 lease agreement
with the City. He stated this was a simple lease amendment.
In response to Smith, Blythe stated Alaska Northern Outfitters owned the dock.
Tylan Schrock, Executive Director, Alaska SeaLife Center. Stated no State, Federal or City
dollars were going into the project.
Dan McDonald, Director of Marine Operations for Kenai Fjords Tours (KFn. Noted that
the clients that were to be funneled into the tour project through the Alaska SeaLife Center came
from other means of funding.
No one else requested to be heard and the public hearing was closed
Motion (~JIlitbl(;lltrk)
Approve Resolution 2006-08
/8 J
City a/Seward. Alaska
March 7, 2006
Planning Commission Minutes
Volume 6, Page 30
Smith voiced concern with the lack of the lease. He voiced concern with the confusion over
the $3":56-pm;:>engertax:-- ~~ - - - ---
Anderson stated she felt the project had come before the Commission as a done deal.
sAAMS has already signed a ten-year agreement with Alaska Northern Outfitters.
.-
Keil noted the issue before the Commission was to amend the current Alaska SeaLife Center
Conditional Use permit to allow the use of the proposed dock operation. She stated the issue was
simple and it had been made complicated by all the documenUl.ti()fi that had been provided. Keil
spoke in strong support of the project. She requested the March 7, 2006 letter submitted as a lay
down from the Alaska SeaLife Center be entered into the record as the review criteria for approval of
the CUP amendment.
Motion (Roach'/Smith)
Amend Resolution 2006-08, Third
Whereas, strike downtown area and
replace with community atlarge.
Keil spoke against the amendment, noting the Alaska SeaLife Center did contribute to the
economic and social vitality of the downtown area and the community at large.
Motion and Second withdrawn
Motion (Roach'lSmitb)
Amend Resolution 2006-08, Third
Whereas, add and the community at large.
Motion Passed
Unanimous
Motion (Roach'/Strobel)
Amend Resolution 2006-08, Section 1. Item
4. strike minimizes conflicts and replace
with does not conflict
Smith voiced concern with the change.
Motion Failed
Yes: Roach', Strobel
No: Andenon, Clark, Smith, Keil
Vote on Resolution 2006-08, as amended
'"
Motion Passed
Yes: Clark, Strobel, Smith, Keil
No: Andenon, Roach'
I ~2-
City of Seward, Alaska
March 7, 2006
Planning Commission Minutes
Volume 6. Page 31
Resolution 2006-09 providing a recommendation to City Council regarding a
proposal by the Seward Association for the Advancement of Marine Science
(SAAM) to lease a portion of the Alaska Tidelands Survey 174, located South of
City owned Tract 2A, Water Front Tract, currently leased by SAAM
-.
Corbridge noted the packet included a lease agreement that had been drafted by Alaska
SeaLife Center. He apologized the lease agreement that had been drafted by the City attorney was
not yet available. He stated if the Commission recommended approval of the lease of the tidelands
to move forward to the Council then the City administration .lease would move forward for
consideration by the Council.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened
Tanya Sandefur, inside the City. Urged the Commission to follow the City Lease Policy.
and Procedures, noting the requested tidelands had not gone through the disposal process.
Tylan Schrock, Executive. Director, Alaska SeaLife Center. He stated this was an
amendment to an existing lease and Section C of the Lease Policy and Procedures state that only the
City Council approved lease amendments.
Dan McDonald, Director of Marine Operations for Kenai Fjords Tours (KFI). He stated the
Alaska SeaLife Center lease must be held to th.esame requirements as the previous lease ofKFT for
the same project.
Scott . Torrison, Chief Opera.ting Officer .for COO Alaska Tours. Dittoed McDonalds
comments.
Tanya Sandefur, inside the City. Cautioned the Commission that an amendment to the lease
requirements was not the same as acquiring another piece of property and amending the lease. The
tidelands parcel requested had never been nominated for disposal.
No one else requested to be heard and the public hearing was closed
Keil stated she felt that by bringing it forward to Planning and Zoning was the nomination.
She stated the past lease to KFT did not come before the Commission. She noted the Commissions
job was to recommend to Council.
Motion (Clark/Smith)
Approve Resolution 2006-09
Clark suggested due to time constraints the item be postponed until the next meeting.
Smith concurred with Clark. He stated all the facts were not available and he did not like
sending a recommendation forward on a lease that was unavailable for review.
/83
City of Seward, Alaslca
March 7, 2006
Planning Commission Minutes
Volume 6, Page 32
Motion (Clark/Strobel)
Postpone Resolution 2006-09 until the next
regular meeting, April 4, 2006
Motion Passed
Unanimous.
Motion (Stobel/Roach')
Due to the "Sunset Hour" all items
remaining on the March 7, 2006 agenda
move forward to the April 4, 2006 agenda
.~
Motion Passed
Unanimous Consent
Note: Following Items moved forward to April Agenda
Unfmished Business - None
New Business
Resolution 2006-10 supporting the concept of the Mariners Memorial for the
SmaU Boat Harbor
Selection ofthe March 21, 2006 Work Session Topic
[set 2/27/06 by Council as the annual work session with Council)
Informational Items and Reports- (No action required)
Planning and Zoning Priorities List, Resolution 2005-17
Commission Comments
Administration Comments
Note: Completion ofthe March 7,2006 agenda
Citizens' Comments
Tanya Sandefur, inside the City. Reviewed her understanding of the Lease Policy and
Procedures by stating: under nominating public lands for lease Planning and Zoning reviews a piece
of property for disposal, then the recommendation goes to Council. Then if the Council finds it is in
the public interest to nominate the parcel, then direct the City Manager to work through the lease.
,.
Tylan Schrock, Executive Director, Alaska SeaLife Center. Stated the timeliness of waiting
another month was a frustration. He stated the proposal had been present to the City October 61h. He
voiced frustration with the time the process had taken.
I '6 ~
City of Seward, Ala.'lka
March 7, 2006
Planning Commission Minutes
Volume 6, Page 33
Commissions and Administration Response to Citizens' Comments
Roach' , apologized for the time delay noting the project was before the City in October and
not brought forward until March.
-.
Clark, stated the Lease Policy and Procedures were never adopted into the City code, they
were merely a recommendation adopted by resolution over ten (10) year ago.
c
.
Keil, stated the tidelands had been leased in the past so a precedence had be set.
Adjournment
Meeting adjourned at 11 :03 pm.
Donna Glenz
Planning Assistant
(City Seal)
Marianna Keil
Chair
",
/gs
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ANCHORAGE METROPOLITAN AREA
TRANSPORTATION SOLUTIONS (AMATS)
The Municipality fulfills its roles as the recognized
Metropolitan Planning Organization (MPO) and the Air
Quality Planning Agency for the Anchorage maintenance
Area through the Anchorage Metropolitan Area
Transportation Solutions (AMATS). There are five primary
participant groups in the AMATS planning and
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1. AMATS Policy Committee
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AMATS Policy Committee
The Policy Committee has the authority to act on all
matters relating to the continuing, comprehensive
and cooperative transportation and air quality
planning process for the area.
The AMATS Policy Committee consists of five equal
voting members: the Commissioner of the Alaska
Department of Transportation and Public Facilities,
the Commissioner of the Alaska Department of
Environmental Conservation or their designees, the
Municipal Mayor, and two Municipal Assembly
Members. The Chair of the Policy Committee is the
ADOT&PF member.
The Policy Committee's responsibilities are:
. Establish the needs and priorities of
transportation.
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. AMATS Oraanizatlon.
. AMATS Boundarv Mal
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1/27/2006
Amats
Page 2 of 4
. Direct the preparation and implementation of
transportation plans, programs and studies.
. Manage and secure funding to implement the
Transportation Program.
. Provide overall direction to the AMATS Technical
Advisory Committee and staff.
. Ensure public involvement throughout the
AMATS Process.
AMATS Technical Advisory Committee
.
The AMATS Technical Advisory Committee (TAC)
consists of seven equal voting members: 1) the
ADOT&PF Central Region Chief of Planning, 2) a
representative from Alaska Department of
Environmental Conservation, 3) the Municipal
Planning Department Director, 4) the Municipal Traffic
Department Director, 5) the Municipal Public
Transportation Director, 6) a representative from the
Municipal Department of Health and Human Services,
7) a member of the Citizens' Air Quality Advisory
Committee, 8) the Municipal Project, Management &
Engineering Director, 9) a Representative from the
Port of Anchorage, 10) ADOT&PF Regional Pre-
Construction Engineer, and 11) a representative from
the Alaska Railroad Corporation. The Chair of the
TAC is the Municipal Traffic Director. The duties of
the Technical Advisory Committee include:
. Prepare and maintain the AMATS transportation
plans, technical studies and
programs.
. Provides recommendations to the Policy
Committee regarding the effects of
transportation and air quality plans and
programs on the plans of other agencies.
. Provides recommendations to the Policy
Committee in its review of federal and state
funded transportation projects and programs.
. Receive public comments through the AMATS
Citizens' Advisory Committee, the AMATS
Citizens' Air Quality Advisory Committee and
direct tasks to staff and the Air Quality Advisory
Committee.
Municipal Assembly
To provide local government review and
recommendations on the AMATS Plans and Programs
to the AMATS Policy Committee. The Municipal
Assembly's duties are:
. Adopt by resolution the Long-Range
Transportation Plan (LRTP) and the
http;//www.muni.orgltransplan/amats.cfin
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1/27/2006
Amats
Transportation Improvement Program
(TIP).
. Adopt the transportation element of the
Comprehensive Plan.
. Adopt an OfficiaLStreets and Highwa)'S
Plan.
. Adopt the local area component of the State
Implementation Plan for Air Quality
. Assist in securing adequate funding to
implement the transportation
program.
. Designate two of the three local government
representatives on the AMATS Policy
Committee.
AMATS Citizen's Advisory Committee
(Municipal
Planning" Zoning Commission)
In its capacity as the AMATS Citizen's Advisory
Committee, the Planning and Zoning Commission
reviews transportation plans and programs. In
another capacity, the Planning and Zoning
Commission reviews site selections and site plans for
roadway improvement projects.
. Review transportation plans and programs and
prepare recommendations to both the Municipal
Assembly and the AMATS Policy
Committee.
. Review and prepare recommendations on the
elements of the Comprehensive Plan and the
Official Streets and Highways Plan to the
Anchorage Assembly for Adoption.
. Advise and make recommendations to the
AMATS Technical Advisory Committee and
Assembly.
The AMATS Air Quality Advisory Committee
The AMATS Air Quality Advisory Committee is the
citizens' forum for air quality issues affecting AMATS.
Specific functions of the Committee are to assist in
promoting public participation in the air quality
planning process and to comment on air quality
planning issues. Members of this committee are
appointed by the AMATS Policy Committee. DHHS is
the coordinating agency for this Committee. Contact:
Municipality of Anchorage, Department of Health and
Human Services, Environmental Services Division,
825 'L' Street, Fifth floor. Mail: PO Box 196650,
Anchorage, AK 99519-6650. Phone: 343-6976. FAX:
343-4786.
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Page 3 of 4
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1/27/2006
Amats
. Provide review "and comment on air quality
planning issues.
. Assist in promoting public participation in the
air quality planning process.
AMATS Staff
<
Primary staff for AMATS is the Transportation
Planning Division of the Municipal Traffic Department.
The Project Management & Engineering and Traffic
Departments of the Municipal Office of Planning,
Development and Public Works, the Environmental
Services Division of the Municipal Department of
Health and Human Services, the Municipal Public
Transportation Department, and the Municipal
Department of Cultural & Recreational Services
furnish added support. The State of Alaska supports
AMATS through its Department of Transportation and
Public Facilities, and its Department of Environmental
Conservation. Staff Contact: Municipality of
Anchorage, Traffic Department, Transportation
Planning Division, 4700 Bragaw St. Mail: PO Box
196650, AnChorage, AK 99519-6650. Telephone:
343-8406. FAX: 343-7998.
632 W. 6th Avenue Anchorage, Alaska 99501
PO Box 196650 Anchorage, Alaska 99519
Disclaimer I Prlvacv 5tatement I Site Help I (cl2004 MOA IT e-Gov
http://www.muni.org/transplan/amats.c:tin
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Page 4 of 4
1/27/200(1
Figure 1
Anchorage Metropolitan Area Transportation Solutions
AMA TS Organizational Chart
....
DHHS Public Trans PMB:E Port of ADOT B: PF
Air Quality Transit Transportation Anchor. Central Relion
Environmental Plannlnll B: Land Use PlannlnafTrafflc Desian. Enll B: Environmental B: Project Prelim EIlll Air
Services Marketlnll Plannlllll Safety B: Enll Construction Gov't Affaln Development B: Deslan
Tom Nelson Craig Lyon Lori Schanche
Steve Morrts Jody Karcz Dave Tremont Chris Bernardini Jerry Hansen Roger Graves David Post Kim Rice
Nancy Killoran Tom Davis Jon Spring Rand Gaynor Sandra Cook
Erica McConnell K. Carpenter Jim Lamson "
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