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CITY OF SEWARD, ALASKA
RESOLUTION 2007-014
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING APPROVAL OF DEPARTMENT OF ARMY
MEMORANDUM FOR RECORD AND ACCEPTING DISPOSAL AREA 1
RELATING TO CONTRACT W911KB-04-C-0004, HARBOR IMPROVE-
MENTS, SEWARD, ALASKA
WHEREAS, under the June 2003 Project Cooperation Agreement between the Department
of the Army ("Corps") and the City of Seward for Construction of the Harbor Improvements,
dredged and excavated material was deposited behind the newly extended breakwater creating
certain filled area described by the Corps as "BOD Disposal Area 1 "; and
WHEREAS, that certain Memorandum For Record dated May 25,2005, was presented to
the City for signing subject to the City's receipt of a survey of the filled area; and
WHEREAS, the City now possesses a topographical survey describing the BOD Disposal
Area l; and
....
WHEREAS, the City is now ready to accept the completion of the filled area described as
BOD Disposal Area l; and
WHEREAS, this acceptance is limited to the filled area only and shall not be construed as
acceptance of the breakwater itself, recognizing that issues remain to be resolved by the Corps
relating to the breakwater as constructed.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA, that:
Section 1. The interim city manager is authorized to sign the Memorandum For Record
dated May 25, 2005, and deliver it, together with a copy of this resolution to the Department of
Army.
Section 2. Nothing else shall be implied by the signing ofthe attached agreement other than
what is specifically stated therein and the City hereby reserves all rights against the Department of
the Army that may exist due to any problems related to the design or construction ofthe breakwater.
Section 3. This resolution shall take effect immediately upon its adoption.
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CITY OF SEWARD, ALASKA
RESOLUTION 2007-014
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 12th
day of February 2007.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
THE CITY OF SEWARD, ALASKA
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Vanta Shafer, Mayor /
Valdatta, Bardarson, Schafer, Thomas, Amberg, Shafer
None
Dunham
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COUNCIL AGENDA STATEMENT
Meeting Date: February 12, 2007
Through: Marvin Yoder, Interim City Manager
From: Scott Ransom, Harbormaster
Agenda Item: Resolution to Authorize the City Manager to Sign the
Memorandum of Record and accept BOD Disposal
Area 1 relating to Contract W911KB-04-C-0004,
Harbor Improvements, Seward, Alaska, by the
Department of the Army, U.S. Engineering District,
Alaska, Southern Alaska Area Office.
BACKGROUND & JUSTIFICATION:
Under the June 2003 Project Cooperation Agreement between the Department of Army (the
"Corps") and the City of Seward (the "City") for Construction of the Harbor Improvements (the
"Agreement"), dredged and excavated material was deposited behind the newly extended
breakwater creating approximately 3.5 acres of filled land described by the Corps as "BOD
Disposal Area 1." Apart from the filled area, the breakwater is a separate general navigation
feature that continues to be operated and maintained by the Corps under the Agreement.
The City has not signed this document pending completion of a topographical survey by the
Corps. The City now has this survey describing the filled land.
Following signing, the City may direct the day-to-day use of the filled area; provided, however,
that all use is subject to and subordinate to the doctrine of Navigational Servitude. Navigational
Servitude is a federal right to use tide and submerged lands for navigational purposes, which, if
not exercised by the federal government, may be exercised by the state or a political subdivision.
Navigational Servitude is a dominant servitude which extends to all lands below the ordinary
high water mark and is grounded in the power of the federal government to regulate commerce.
Where it applies, Navigational Servitude continues regardless of ownership of tide and
submerged lands, and under this doctrine the federal government may, at any time, construct
levees and breakwaters, dredge channels, deposit dredged materials, and make other
improvements to aid navigation. The use of tide or submerged lands by the Corps under
Navigational Servitude is not considered a governmental taking and no compensation is required.
To waive or abandon this right takes specific action by the federal government. Waiver of
Navigational Servitude may not be implied but must be surrendered in unmistakable terms.
United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987). In this particular case, the
federal government has retained the right to utilize the Navigational Servitude over all areas
applicable and the memorandum For Record described above does not waive this right over land
created by the dredge/fill material.
In addition other local, state, and federal laws may also affect use of the filled land. The Harbor
Improvements Final Interim Feasibility Report, Volume 2, September 1998, indicates that the
area is in the high risk seismic hazard area and that there may be restrictions on the use of federal
funds in such areas for certain new construction. Any use of the filled land must also comply
with Seward City Code ("SCC") 15.25, Floodplain Management. The Breakwater and the filled
land appear to be located in the coastal high hazard area under SCC § 15.25.050 D and special
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restrictions apply to construction in such areas in addition to the general provisions of SCC §
15.25.030. Most notably, the use of fill for the support of buildings within zones V1-V30 on the
Flood Insurance Rate Map is prohibited. SCC § 15.25.050 D(4).
CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward
City Code, Charter, Comprehensive Plan, Land Use Plans, Strategic Plan and City Council Rules
of Procedure.
FISCAL NOTE:
There is no cost associated with signing the Memorandum of Agreement and accepting this land,
for use by the City. It may be determined that there is a potential future use for this area, in
which case the revenues and costs associated with such use would be projected by staff and such
information provided to Council.
Approved by Finance Department
RECOMMENDATION:
The administration recommends approval of Resolution 2007-014 providing City Council
approval of accepting Disposal Area 1 and authorizing the City Manager to sign the
Memorandum For Record indicating the City's acceptance of Disposal Area 1 Relating to
Contract W911KB-04-C-0004, Harbor Improvements, Seward, Alaska, solely for the purposes
indicated by that Memorandum For Record.
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