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HomeMy WebLinkAbout05112009 City Council PacketSeward City Council Agenda Packet May 11, 2009 City Council Chambers Beginning at 7:00 p.m. May 16, 2009 is Armed Forces Day 1963 1965 2005 The City of Seward, Alaska ~ CITY COUNCIL MEETING AGENDA ~; ~~ N-anenca cm {Please silence all cellular phones and pagers during the meeting} ~ ~~~~~~ ~~ Note NEW time! ~`~~ May 11, 2009 7:00 p.m. Council Chambers Clark Corbridge Mayor Term Expires 2009 1. 2. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL 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 council member so requests. In the event of such a request, the item is returned to the Regular Agenda) Willard E. Dunham Vice Mayor Term Expires 2010 Robert Valdatta Council Member Term Expires 2009 Tom Smith Council Member Term Expires 2009 Betsy Kellar Council Member Term Expires 2009 Jean Bardarson Council Member Term Expires 2010 Marianna Keil Council Member Term Expires 2010 Phillip Oates City Manager Jean Lewis City Clerk Cheryl Brooking City Attorney SPECIAL ORDERS, PRESENTATIONS AND REPORTS A. Proclamations and Awards 1. Welcome proclamation for the Center for Oceans, Law and Policy Conference May 20-24, 2009 .................Pg 3 2. Poppy Awareness as the Memorial Flower of the American Legion and American Legion Auxiliary .............Pg 4 3. National Military Appreciation Month and Armed Servic Day ..............................................................Pg 5 4. Memoriam for Ex-Mayor Lowell (Bob) Satin....Pg 6 B. Borough Assembly Report C. City Manager's Report D Other Reports and Presentations 1. Travel Report by Vice-Mayor Willard Dunham on Yeosu City Korea Trip. PUBLIC HEARINGS A. Resolutions Requiring a Public Hearing 1. Resolution 2009-039, Authorizing Termination Of Lease The Existing Lease With Jack Scoby And Sheila L. Scoby dba Orca Enterprises And Authorizing The City Manager To Enter Into A New Lease With Dockside Ventures, LLC For Lot 10, Block 6, Seward Small Boat Harbor Subdivision, Plat 2000-19, Seward Recording District, Third Judicial District, State Of Alaska ............................................Pg 7 City of Seward, Alaska Council Agenda May 11, 2009 Page 1 8. UNFINISHED BUSINESS A. Items for Reconsideration 1. Motion to Reconsider Resolution 2009-034 a. Resolution 2009-034, Amending The Port And Harbor Tariff By Temporarily Decreasing Launch Fees, Effective May 1, 2009 Through December 31, 2009.......Pg 49 2. Motion to Reconsider Resolution 2009-035 b. Resolution 2009-035, Amending The City Parking Fees Schedule For City-Owned Parking Lots, Temporarily Decreasing Daily Parking Fees, Effective May 1, 2009 Through December 31, 2009 .............................................................................Pg 53 9. NEW BUSINESS A. Resolutions * 1. Resolution 2009-040 Adopting The Planning And Zoning Commission Priorities From Apri12009 To Apri12010 ...........................................................Pg 56 *2. Resolution 2009-041, Adopting The Port And Commerce Advisory Board (PACAB) Priorities From Apri12009 To Apri12010 ...............................................Pg 59 3. Resolution 2009-042, Adopting The North Harbor Development Recommendations ...........................................................................Pg 61 B. Other New Business Items * 1. Approval Of The April 13, 2009 Regular council meeting minutes, and the April 13 and 14, 2009 Special City Council Meeting Minutes ............................Pg 74 *2. Approval Of The Apri127, 2009 Regular City Council Meeting Minutes......Pg 97 *3. Approve the new restaurant eating/public convenience liquor license for the Railway Cantina ....................................................................................Pg 108 4. Set a work session to discuss possible amendments to Title 6. (Bids/RFP's) 10. INFORMATIONAL ITEMS AND REPORTS (No action required) 11. COUNCIL COMMENTS 12. CITIZENS' COMMENTS [S minutes per individual -Each individual has one opportunity to speak.] 13. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS 14. ADJOURNMENT City of Seward, Alaska Council Agenda May I1, 2009 Page 2 ~` l" `° `'' WHEREAS, from May 20-24, 2009, the Center for Oceans, Law and Policy will be having their 33`d annual conference in Seward, Alaska hosted by the Seward Marine Center; and o b i • Ul ~ 1~~ ,~ WHEREAS, the Center for Oceans Law and Policy supports research, education and discussion on legal and public policy issues relating to the oceans, and is a nonpartisan, nonprofit interdisciplinary center for advanced scholarship and education f about legal & policy issues affecting the oceans; and ' WHEREAS, the annual conference of the Center for Oceans Law and Policy provides a unique opportunity for leading scholars and policy makers to meet and exchange ideas on important concerns in the oceans community; and j WHEREAS, through a regular program of conferences, publications, and n~ .~ '~ lectures, the Center promotes interdisciplinary interaction at all levels, addressing international, national, regional, and state issues. The Center also provides archives of oceans documents for the library of the University of Virginia School of Law; and WHEREAS, the conference is typically held overseas with individual presentations, panel discussions, and prominent keynote speakers. The issues are usually international in scope. The proceedings of each Annual Conference are published and distributed worldwide; and WHEREAS, The Center has hosted the Conference in such locations as Heidelberg, Germany; Dublin, Ireland; Xiamen, China; Reykjavik, Iceland; Stockholm, Sweden; and St. Petersburg, Russia; and WHEREAS, topics for this year's a~enia center ar~unl changes in the arctic environment and the laws of the sea; and WHEREAS, the city of Seward is thrilled to have such an international event l~t, choose Seward for their conference, and welcomes all participants to our community. t~ ~ NOW THEREFORE I, Clark Corbridge, Mayor of the City of Seward, on behalf ,, of the citizens of Seward, do hereby welcome the participants of the 33`d Center for Oceans, Law and Policy conference to Seward, Alaska. Dated this 11`h day of May, 2009. *~-~«,II ~ ~s* ~ WHEREAS, the red crepe paper poppy, replica of the Flanders Fields Poppy, was originally adopted in 1921 as the Memorial Flower of the American Legion and the American Legion Auxiliary; and WHEREAS, in the spring of 1919, amidst complete devastation, the poppies bloomed in abundance on the battlefields of France where so many of America's soldiers had fallen in battle. Through the years, the poppy has become the memorial flower of those who sacrificed their lives for our freedom; and WHEREAS, the red crepe paper poppy is hand made exclusively by hospitalized veterans of the World Wars, Korean War, Vietnam War, Grenada/Lebanon and Panama conflicts, the Persian Gulf War and current ongoing conflicts. It is made of paper to give the veteran a maximum amount of work and income and in many cases the income derived from this source constitutes the only income of that hospitalized veteran; and WHEREAS, each members of the American Legion Auxiliary, offer these poppies to the public, to be worn on Memorial Day, so they may pay tribute to the Nation's honored war dead; and WHEREAS, all contributions made by the public are used by the American Legion Auxiliary exclusively for the welfare of the veterans and their families throughout the state of Alaska; and WHEREAS, the City of Seward has great compassion and gratitude for those who serve and had served our country. NOW, THEREFORE, I Clark Corbridge, Mayor of Seward, Alaska, do hereby encourage all citizens to honor the dead and aid the living of those who have served our country by wearing a paper poppy every Memorial Day. Clark Corbridge, Mayor PROCLAMATION Dated this 11`'' day of May, 2009. PROCLAMATION WHEREAS, May 2009 is the 11`h,annual National Military Appreciation Month; and WHEREAS, Seward,. as home to the only Alaska-based Military Recreation Camps, l2osts thousands of military service members and their families each year; and WHEREAS, Seward's American Legion Post, other community organizations, and the Seward business community actively support those who have served; and WHEREAS, the Armed Services Combat Fishing Tournament is now. entering its third. year in Seward, with increasing pdrticipation each year for aone-day halibut tournament on May 21S`, hosted in conjunction :with the Armed Services YMCA and through the support of generous sponsors and the Seward sport fishing charter fleet; and WHEREAS, Seward businessman, Bob Candopoulos, owner of Saltwater Safari Company, and his event partner, Keith Manternach; of Specialty Truck and Auto, Inc. founded this event and have been .instrumental in providing a military appreciation event for Seward that is like no other statewide, bringing together the business community and the sport fishing charter industry to show the members of our• armed services how much we appreciate all which they sacrifice for our country; and WHEREAS, this event gives the community of Seward an opportunity to recognize our armed services and those on active duty in all branches of the services, the National Guard and Reserves plus retirees, veterans, and all of their families -well over 90 million Americans and more than 230 years of our nation's history. NOW, THEREFORE, 1, Clark Corbridge, Mayor of the Cit)~ of Seward, Alaska, do hereby recognize Bob Candopoulos and Keith Manternach for their efforts to honor those who have served their country. The City of Seward recognizes May as National Military Appreciation Month and May 16, 2009 as Armed Services Day. 1 encourage all of the Seward community to join in showing support and gratitude by the appropriate display of flags and. ribbons, particularly during the period from May l6~ , Armed Services Day, through Memorial Day, observed on May 25`" Dated this 11 `h day of May, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor .dal n w h n O -s C' K ..• a w 0 K ~I ro n O. Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-039 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING TERMINATION OF THE EXISTING LEASE WITH JACK SCOBY AND SHEILA L. SCOBY DBA ORCA ENTERPRISES AND AUTHORIZING THE CITY MANAGER TO ENTER INTO A NEW LEASE WITH DOCKSIDE VENTURES, LLC FOR LOT 10, BLOCK 6, SEWARD SMALL BOAT HARBOR SUBDIVISION, PLAT 2000-19, SEWARD RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA WHEREAS, the City is the owner of real property described as Lot 10, Block 6, Seward Small Boat Harbor Subdivision located in the City of Seward, Alaska; and WHEREAS, the City of Seward entered into a Lease Agreement with Jack and Sheila Scoby dba Orca Enterprises on Apri128, 2000; and WHEREAS, Orca Enterprises desires to be released from its lease obligations and is not in default of its lease; and WHEREAS, Dockside Ventures, LLC desires to enter into a lease with the City in substantially the form presented at this meeting. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is authorized to execute a Termination of Lease with Jack and Sheila Scoby dba Orca Enterprises and to execute a new lease with Dockside Ventures each in substantially the form as presented at this meeting. Section 2. This resolution shall take effect 30 days from the date of adoption and the authorization herein shall expire if both the lease termination and new lease are not executed by all parties by July 1, 2009. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 11 `h day of May 2009. 1 ,~;, COUNCIL AGENDA STATEMENT :~ ~; 1i Meeting Date: May 11, 2009 c;-~'%~~ Through: Phillip Oates, City Manage From: Kari Anderson, Harbormaster Agenda Item: Authorizing termination of the existing lease with Jack and Sheila Scoby dba Orca Enterprises and authorizing the city manager to enter into a new lease with Dockside Ventures, LLC for Lot 10, Block 6 Seward Small Boat Harbor Subdivision, Plat 2000-19 BACKGROUND & JUSTIFICATION Jack and Sheila Scoby entered into a lease with the City of Sewazd effective Apri12000 for a boardwalk lot site in the harbor azea. This lease encompasses Lot 10, Block 6, Seward Small Boat Hazbor Subdivision in the Sewazd Recording District. The Scoby's request the City Council's consent to terminate the Lease at the time a sale of property closes between the Orca Enterprises and Dockside Ventures, LLC. Dockside Ventures in turn requests a new lease of the same real property. The Lease Termination with the Scoby's (Orca Enterprises) and form of the new lease with Dockside Ventures, LLC would be in substantially the form presented at this meeting. If approved by the City Council, the consent to terminate Orca Enterprises' lease and enter into a new lease would be effective in 30 days. The termination and lease would be signed when the sale occurs between the parties, and the City Council's consent would expire July 1, 2009 if the sale has not closed by that date. Resolution 2009- ~_ also terminates Resolution 2000-028; the resolution approved by the City Council on Mazch 28~', 2000 authorizing the existing lease with Orca Enterprises. This will be formalized with the signed Agreement to Terminate Lease form. The proposed lease with Dockside Ventures includes a Personal Guazantee from the four members comprising Dockside Ventures, LLC which addresses liability of the individual members for the obligations of Dockside Ventures in the event of a default. The City will conduct appraisals of its rental property in 2010 and new rental rates aze now in effect, based on fair market rental values. The assignment and release will not decrease the rent paid to the city. The new lease includes an annual adjustment to rent based on the Anchorage Consumer Price Index. CONSISTENCY CHECKLIST Yes No N/A 1. Comprehensive Plan X (Economic Development, Small Boat Harbor Development: expand and maximize potential of the existing harbor) 2. Strategic Plan X (Growth Management and Land Use Planning: Promote residential and commercial development inside the city) 3.) Other: Municipal Lands Management Plan X (Leases:... continue to dispose of commercial and industrial lands through long term leases...) Small Boat Harbor Management Plan X (Lands:...ensure that existing lease sites are fully developed) FISCAL NOTE The rent is six thousand five hundred and thirty-four dollars and ninety-two cents ($6,534.92) annually comprised of the following annual amounts: Base rent of $4,800.00, plus boardwalk and water assessments through June 30, 2015 of $1,734.92. The annual base rental payment shall be adjusted on July 1, 2010, and on the same date every five years thereafter, based on the appraised fair market rental value. Finance Department: ~,~ ~~~a~, ATTORNEY REVIEW X RECOMMENDATION Council approve Resolution 2009-~~ authorizing the City manager to enter into a Lease Termination with Jack and Sheila Scoby dba Orca Enterprises and a new Lease with Dockside Ventures, LLC for Lot 10, Block 6, Seward Small Boat Harbor Subdivision. After Recording Return To: City of Seward Attention: City Manager PO Box 167 Seward, Alaska 99664 AGREEMENT TO TERMINATE LEASE This Agreement to Terminate Lease ("Agreement") is entered into and effective as ofJune~ 2009, by and between the City of Seward, Alaska, a home rule municipal corporation, organized under the laws of the State of Alaska whose address is P.O. Box 167, Seward, Alaska 99664 (the "City") and Jack and Sheila Scoby dba Orca Enterprises, whose address is P.O. Box 966, Seward, Alaska 99664 ("Scoby."). WHEREAS, the City, as lessor, and Scoby, as lessee, entered into a lease RE-99-117, as amended (the "Lease") for the real property descn`bed herein; and WHEREAS, Scoby is not in default and the Scoby now desires to terminate the Lease; NOW THEREFORE, IN CONSIDERATION ofthe foregoing recitals and mutual promises and covenants herein, the parties hereby agree as follows: The Lease descnbed in the above recitals encompassing Lot 10, Block 6, Seward Small Boat Harbor Subdivision, according to Plat 2000-19 as recorded in the Seward Recording District, Third Judicial District, State of Alaska is hereby terminated effective upon execution by all parties to this Agreement. Page 1 Each party has full power and authority to enter into this Agreement and no further action or approval is required to cause this Agreement to be binding and enforceable against either party in accordance with its terms. LESSOR: THE CITY OF SEWARD By: hillip tes, City Manager ATTEST: 1 Je Lewi , CM "~- C Clerk STATE OF ALASKA THIRD JUDICIAL DISTRICT LESSEE: JACK AND SHEILA SCOBY dba A ELATE RISES By. ~ cr2 7a Scoby By: ~~ ~ ~~ ~~~~~..~~1~ Scoby ~j ,,.,;z~, ~, ;;~ ~' a :, ~,: _._ e ~,y~ z ~ •1~{Sf~~ M ~~ )'s~si~~F OF ~~NU~~ The foregoing instrument was acknowledged before me this ~dayof~ 2009, by Phillip Oates, City Manager of the City of Seward, Alaska, on behalf of the City. Notary Public in and for Alas a My Commission Expires: ~ - z ~/ - o~ZJ 1 ~ ~ e °~''I'pTAR~''~tp; • ~*~ A(/gL~G ~ Page 2 ii STATE OF ~bA-y~~ ) C~c>rr,uyY r7r` ~~.u~'+ ) ss T ~' ) ~_ THIS IS TO CERTIFY that on this Zl~' day of ~~°u~ , 2009, before me the undersigned, a Notary Public in and for the State of Alaska, duly commissioned an sworn as such, personally appeared Jack Scoby, individually, known to me and to me known to be the individual named above and who executed the foregoing instrument, and acknowledge to me that he signed the same freely and voluntarily for the uses and purposes therein set forth ~~ O Official Seal ~'i NOTARY PUBLIC ~% STATE OF ARIZONA County or Yuma Notary Public in and for-~dasiEe"~ MICHAEL J. MATIAS M Commission Expires~l3, 2of z My Commission Expires:~~y /~ 2car2 r ~¢L/1y'ur1 STATE OF~-s T ) THIS IS TO CERTIFY that on this ~~Jday of /~°~- , 2009, before me the undersigned, a Notary Public in and for the State of Alaska, duly commissioned an sworn as such, personally appeared Sheila Scoby, individually, known to me and to me known to be the individual named above and who executed the foregoing instrument, and acknowledge to me that she signed the same freely and voluntarily for the uses and purposes therein set forth. Official Seal ~ NOTARY PUBLIC sTATE of ARIZONA Not Public in and for f~rlask7t• ~~"'~ County of Yuma ~ MICHAEL J. MATIAS My Commission Expires: ,l>~•"/ /3 ~~'iL M Commission Expires May 13, 2012 ,fir zy Page 3 ~~ LEASE AGREEMENT between CITY OF SEWARD, ALASKA and DOCKSIDE VENTURES, LLC Effective Date: ~~ TABLE OF CONTENTS ARTICLE 1 -LEASED LAND ........................................................................... .....................1 1.1 Description of Leased Land ............................................................ .....................1 1.2 Covenant of Quiet Enjoyment; Warranty of Title ............................ .....................1 1.3 Reserved ......................................................................................... .....................2 1.4 Property Accepted ........................................................................... .....................2 1.5 Permits ........................................................................................... .....................2 1.6 Platting ........................................................................................... .....................2 ARTICLE 2 -LEASE TERM .............................................................................. .....................2 2.1 Lease Term ..................................................................................... ..................... 2 ARTICLE 3 -RENTAL RATE ........................................................................... .....................3 3.1 Initial Rental Rate ........................................................................... .....................3 3.2 Rental Adjustments ......................................................................... .....................3 3.3 Procedure for Rental Adjustment .................................................... .....................3 3.4 Effect of Late Appraisal by CITY .................................................... .....................4 3.5 Appraisal by LESSEE ..................................................................... .....................4 3.6 Effective Date ofAdjusted Rental Rate ........................................... .....................5 3.7 Interim RentalAdjustments ............................................................. .....................5 3.8 Late Payment Charge ..................................................................... .....................5 ARTICLE 4 -USE OF LEASED LAND ............................................................. .....................5 4.1 Use of Leased Land ........................................................................ .....................5 4.2 Obligations of LESSEE ................................................................... ..................... 6 4.3 No Preferential Rights to Use Public Facilities ............................... .....................6 4.4 Adequacy of Public Facilities ......................................................... .....................6 4.5 Tariffs and Other Service Fees ........................................................ .....................6 4.6 Time for Payment of Utilities and Taxes ......................................... .....................6 4.7 Other Uses ...................................................................................... .....................7 ARTICLE 5 -UTILITIES AND RIGHTS OF ACCESS ................................... .....................7 5.1 Utilities ........................................................................................... .....................7 5.2 Third-Party Improvements .............................................................. .....................7 5.3 Easements ....................................................................................... .....................8 ARTICLE 6 -CONSTRUCTION BY LESSEE ................................................. ..................... 8 6.1 Improvements on Leased Land ........................................................ ..................... 8 6.2 City Review of Construction ............................................................ .....................9 ARTICLE 7 -RETURN OF LEASED LAND/SITE CONDITIONS ................. ...................10 7.1 Return of Leased Land in Original Condition ................................. ...................10 ARTICLE 8 -FORCE MAJEURE ..................................................................... ...................10 ARTICLE 9 -LESSEE'S ACTS OF DEFAULT ................................................ ...................10 ARTICLE 10 -REMEDIES FOR DEFAULT BY LESSEE .............................. ...................11 ARTICLE 11 -TITLE TO IMPROVEMENTS INSTALLED BY LESSEE .... ...................13 11.1 Real Property Improvements ........................................................... ...................13 i _ ~ "~ 11.2 Personal Property .............................................................. ................................13 ARTICLE 12 -ASSIGNMENT OR SUBLEASE .................................. ................................13 12.1 Assignment of Lease or Subleasing .................................... ................................13 12.2 Assignment of Lease for Security ....................................... ................................13 12.3 Assignment to Affiliate .......................................................... .............................14 ARTICLE 13 -LESSEE'S DUTY TO DEFEND/INDEMNIFY .............. .............................15 ARTICLE 14 -CITY'S DUTY TO DEFEND/INDEMNIFY ................... .............................15 ARTICLE 15 -INSURANCE .................................................................... .............................15 15.1 Minimum Insurance Requirements ........................................ .............................15 15.2 Subrogation Rights Waived ................................................... .............................16 ARTICLE 16 -CONDEMNATION .......................................................... .............................16 ARTICLE 17 -ARBITRATION ............................................................... .............................17 17.1 Arbitration ............................................................................ .............................17 ARTICLE 18 -MAINTENANCE AND REPAIRS .................................. .............................18 18.1 Normal Maintenance ............................................................ .............................18 18.2 Safety Issues ......................................................................... .............................18 18.3 Cost of Repairs ..................................................................... .............................19 ARTICLE 19 -ENVIRONMENTAL CONCERNS ................................. .............................19 19.1 Hazardous Materials ............................................................ .............................19 19.2 Permits and Reporting .......................................................... .............................22 ARTICLE 20 -ESTOPPEL CERTIFICATES ......................................... .............................22 ARTICLE 21 -CONDITIONS AND COVENANTS ................................ .............................22 ARTICLE 22 - NO WAIVER OF BREACH ............................................ .............................22 ARTICLE 23 -TIME OF THE ESSENCE ............................................... .............................23 ARTICLE 24 -COMPUTATION OF TIME ............................................ .............................23 ARTICLE 25 -SUCCESSORS IN INTEREST ........................................ .............................23 ARTICLE 26 -ENTIRE AGREEMENT .................................................. .............................23 ARTICLE 27 -GOVERNING LAW ........................................................ .............................23 ARTICLE 28 -PARTIAL INVALIDITY ................................................. .............................23 ARTICLE 29 -RELATIONSHIP OF PARTIES ...................................... .............................24 ARTICLE 30 -INTERPRETATION ........................................................ .............................24 ARTICLE 31 -CAPTIONS ....................................................................... .............................24 ARTICLE 32 -AMENDMENT ................................................................. .............................24 ARTICLE 33 -NOTICES ......................................................................... .............................24 ARTICLE 34 -FIRE PROTECTION ....................................................... .............................25 ii is LEASE AGREEMENT THIS LEASE AGREEMENT (the "LEASE") is made by and between the CITY OF SEWARD (the "CITY"), a municipal corporation located in the Kenai Peninsula Borough, State of Alaska, whose mailing address is P.O. Box 167, Seward, Alaska 99664 and Dockside Ventures, LLC (the "LESSEE"), whose mailing address is P.O. Box 54, Seward AK 99664. WHEREAS, LESSEE has indicated its desire to lease the property known as Lot 10, Block 6, Seward Small Boat Harbor Subdivision, as shown on Plat 2000-19, Seward Recording District, Third Judicial District, State of Alaska, consisting of approximately 1,220 square feet, more or less; and WHEREAS, the City Council of CITY has determined that lease of the Leased Land (as defined below) to LESSEE for the purposes described herein would be in the public interest; and WHEREAS, it is the intent of this LEASE to transfer from CITY to LESSEE the entire burden of compliance with environmental regulations or controls with respect to LESSEE'S operations on the Leased Land. NOW THEREFORE, for and in consideration of the mutual promises and covenants hereinafter contained, the parties hereto agree as follows: ARTICLE 1 -LEASED LAND 1.1 Description of Leased Land. The Leased Land is located in the City of Seward, Alaska. The Leased Land is described as follows: Lot 10, Block 6, Seward Small Boat Harbor Subdivision, as shown on Plat 2000-19, Seward Recording District, Third Judicial District, State of Alaska, consisting ofapproximately 1,220 square feet, more or less (the "Leased Land"). The Leased Land is also depicted on the attached Exhibit A, which is incorporated herein by reference. 1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as ofthe date hereof, any reasonable restrictions imposed on the Leased Land as part ofrecording ofa plat by CITY, and the provisions of this LEASE, CITY hereby covenants and warrants that LESSEE shall have the quiet enjoyment and possession of the Leased Land for the full term of this LEASE. 1 ~~ 1.3 Reserved. 1.4 Property Accepted "As-is. " LESSEE acknowledges that it has inspected the Leased Land and accepts the same "as-is" and without reliance on any expressed or implied representations or warranties of CITY (other than the representations in Section 1.2 hereof), or agents ofCITY, as to the actual physical condition or characteristics thereof and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A hereto. 1.5 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction and operation of its facilities on the Leased Land. CITY may from time to time, upon request of LESSEE, execute such documents, petitions, applications and authorizations as may be necessary, as the underlying fee owner, to file with an agency or public body responsible therefor an application for conditional use permits, zoning and re-zoning, tentative and final tract approval, or precise plan approval that may be required for the lawful construction and operation of the facilities of LESSEE permitted on the Leased Land by the terms of this LEASE. However, nothing in this Section shall be construed as requiring CITY to support or approve any such application or permit requests. If the agency or public body responsible to approve or grant such application or permit request is a City of Seward agency, department, orboard, LESSEE shall follow all City of Seward procedures, the same as anyother applicant making similar requests of the City of Seward, according to the Charter, ordinances, resolutions, or any regulation, rules or procedures of the City of Seward. Nothing in this Section imposes any duty or responsibility on CITY to assist LESSEE in obtaining any other permits or approvals, including without limitation those required by the U.S. Army Corps of Engineers (e.g., wetland fill permits), the Environmental Protection Agency (e.g., Clean Air Act permits), the Alaska Department of Public Facilities and Transportation (e.g., right-of- way permits), the Alaska Department of Fish and Game, and the Alaska Department of Environmental Conservation. 1.6 Platting. In the event CITY elects to replat, CITY agrees to include the Leased Land in such replat in accordance with the description in Section 1.3. If LESSEE requests a replat of the Leased Land prior to that time, CITY shall assist LESSEE in the preparation and filing of the replat, and LESSEE shall reimburse CITY for CITY's costs in assisting with the preparation and filing of the replat. LESSEE agrees to sign the plat and any other documents necessary to complete the platting or replatting of any area including all or a portion of the Leased Land. LESSEE shall accept reasonable restrictions, easements, or plat notes as may be required by CITY or other governmental authorities as a condition to filing the plat of the Leased Land or the plat of CITY-owned real property adjacent to the Leased Land. ARTICLE 2 -LEASE TERM Lease Term. The term of this LEASE (the "Lease Term") shall be in accordance with CITY's 2 i~ authorization in Resolution No. 2009- (the "Resolution"). The Lease Term shall commence on the date this LEASE is signed by CITY and that date shall be the effective date of this LEASE (the "Effective Date"). The Lease Term shall run for approximately 20 years from the Effective Date, ending at midnight on June , 2039. LESSEE shall have the right to extend the term of this LEASE for two (2) additional five (5) year periods [cumulative extensions not to exceed ten (10) years], provided that: a) LESSEE exercises any applicable option to extend at least one hundred and eighty (180) days prior to the expiration of the then current lease term; b) LESSEE is not in default under any term or provision of this LEASE; and c) LESSEE shall exercise its options to extend by sending written notice in accordance with the provisions of Article 33 of this LEASE. ARTICLE 3 -RENTAL RATE 3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE through June 30, 2009, the annual rental rate for the Leased Land shall be set at $6534.92, comprised of the following annual amounts: Base rent of $4800.00, plus boardwalk and water assessments through June 30, 2015 of $1734.92. Rent shall be payable quarterly in advance upon the Effective Date of this Lease (prorated for the balance ofthe current quarter) and thereafter on or before the 20th day of the month beginning each calendar quarter: January 20, Apri120, July 20 and October 20. The amount of each quarterly payment shall be one-quarter ofthe annual rental rate as initially established or later adjusted under this Article 3. 3.2 Rental Adjustments. The annual base rental payment shall be adjusted on July 1, 2010, and on the same date every five years thereafter (each a "Rental Adjustment Date"). The adjusted annual rental payment to be paid under the terms of this Lease shall be the appraised fair market rental value (the "Fair Market Rental Value") of the Leased Land at the highest and best use of the Leased Land. The highest and best use of the Leased Land shall be determined without regard to LESSEE's intended or actual use of the Leased Land unless that use is coincidentally the highest and best use of the Leased Land. CITY shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety (90) days before each Rental Adjustment Date. 3.3 Procedure for Rental Adjustment. To adjust the base rent as of any successive Rental Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute), who shall determine the "Fair Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive of improvements placed thereon by LESSEE but inclusive of all improvements made by CITY (including those made before or subsequent to this LEASE). The appraiser's report shall be delivered to LESSEE not less than ninety (90) days before the Rental Adjustment Date. The appraiser's determination of Fair Market Rental Value of the Leased Land shall constitute a 3 ~~ final binding determination of the Fair Market Rental Value and the adjusted annual base rental rate until the next Rental Adjustment Date, unless LESSEE objects to CITY's appraiser's determination of the Fair Market Rental Value. In that case, LESSEE shall give written notice to CITY of its objection within thirty (30) days of receipt of the appraiser's report, and LESSEE shall then engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE'S expense to make an appraisal ofthe Fair Market Rental Value in accordance with this Article 3. If LESSEE'S appraisal determines a Fair Market Rental Value that varies from that determined by CITY'S appraisal by no more than twenty percent (20%), then the adjusted base rental rate shall be the average of the rental rates determined by the two appraisals. If LESSEE'S appraisal determines a Fair Market Rental Value that varies from CITY's appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual base rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this LEASE. 3.4 Effect of Late Appraisal by CITY. If, for any reason, CITY does not complete the appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy of the appraisal report to LESSEE at any time thereafter. However, any such adjusted annual rental rate shall not be effective until the quarterly payment due date immediately following the date CITY delivers the appraisal report to LESSEE. 3.5 Appraisal by LESSEE. If for any particular Rental Adjustment Date, CITY fails to obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE'S expense to make an appraisal under the terms of this Article 3 and submit a copy to CITY before the next quarterly rental payment due date. However, LESSEE must notify CITY in writing within thirty (30) days following the Rental Adjustment Date of LESSEE'S election to obtain an appraisal. If CITY objects to LESSEE'S appraiser's determination ofthe Fair Market Rental Value, CITY shall give written notice to LESSEE of its objection within thirty (30) days of receipt of the appraiser's report, and CITY shall then engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at CITY's expense to make an appraisal ofthe Fair Market Rental Value as ofthe Rental Adjustment Date and in accordance with this Article 3. Ifthe CITY'S appraisal determines a Fair Market Rental Value that vanes from that determined by LESSEE'S appraisal by no more than twenty percent (20%), then the adjusted base rental rate shall be the average of the rental rates determined by the two appraisals. If the CITY'S appraisal determines a Fair Market Rental Value that varies from LESSEE'S appraisal by more than twenty percent (20%), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual base rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this 4 ~~ LEASE. 3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the appraisal report to LESSEE no later than ninety (90) days before the Rental Adjustment Date. If the adjusted annual rental rate is based on CITY's late appraisal or late delivery of the appraisal report to LESSEE, the adjusted rental rate shall be effective beginning with the quarterly rental payment due date immediately following the date the CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the exercise by either CITY or LESSEE of the objection procedure relating to rental adjustment described in this Article 3 shall not postpone LESSEE's obligation to pay rent at the rate established by CITY. LESSEE shall pay the amount of rent as established or adjusted by CITY until the question of objection to the rental rate is finally resolved. 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 CITY or in cases where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSEE, to the Rental Adjustment Date. 3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment Date, excepting the Rental Adjustment Dates, the annual base rental payment shall be increased beginning July 1, 2009 and on 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 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 base 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 maybe 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. 3.8 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 permitted under Alaska law, whichever is less, plus a flat monthly late fee of $2.50, or such amount as maybe established from time to time by CITY ordinance or resolution and relating to late fees for CITY leases generally. ARTICLE 4 -USE OF LEASED LAND 4.1 Use of Leased Land. CITY has limited land available for lease. Use of the Leased Land by LESSEE has been determined by the City Council of CITY to be in the public interest. LESSEE may use the Leased Land for a port and harbor related retail business. 5 ~_., Yr 4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with applicable CITY zoning code provisions and provided the following conditions are met: a) The Leased Land is to be completely cleaned and restored to its original condition, that is, the condition existing prior to this LEASE or in better condition upon termination of this LEASE. b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous Materials on the Leased Land except as permitted in Article 19 of this LEASE. c) LESSEE shall not use the Leased Land in any manner or construct any facilities thereon which would inhibit the use of adjacent or other lands. d) LESSEE shall operate a retail business on the Leased Land. e) Any changes to this site require prior CITY approval, through the City Manager. 4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any exclusive rights to use any public port facilities constructed or operated by CITY. LESSEE will be subject to any tariffs, procedures, rules and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended, and LESSEE shall not be entitled to any exclusive use. 4.4 Adequacy of Public Facilities. CITY makes no representations orwarranties as to the fitness of any particular part or the whole of CITY's public facilities for the uses intended by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the facilities are sufficient for the intended uses by LESSEE. CITY makes no representations or warranties of any nature with respect to the commercial practicability or accuracy of any information provided by CITY. 4.5 Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs, regulations and scheduled fees from time to time even if those adjustments shall cost LESSEE more for its operations or use ofpublic facilities, and CITY is free to do so provided onlythat it does not impose any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities. 4.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related to operations on the Leased Land and LESSEE'S interest in this LEASE and improvements thereon, if any, before such obligations become delinquent; provided, that LESSEE may, in good faith and before such delinquency, contest any such charge or assessment. 6 ~1 4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and additional tenants for space including those who would be in competition with LESSEE or who might be interested in leasing the Leased Land should this LEASE be terminated for any reason. 4.8 Use of Public Docks and Port Facilities. Public docks are subject to port and harbor rules and regulations as adopted by City Council. ARTICLE 5 -UTILITIES AND RIGHTS OF ACCESS 5.1 Utilities. LESSEE, at LESSEE'S sole cost and expense, shall provide for the extension of public utilities to the Leased Land sufficient for LESSEE'S intended operations. In so doing, LESSEE shall comply with all CITY regulations and requirements, and the tariffs of the affected utilities, with respect to the construction ofthose utilities. CITY agrees to woperate and assist the LESSEE, through consultation and review, in LESSEE'S planning and engineering ofthose improvements. All utilities will be located and sized in accordance to CITY'S Master Plan for the area leased. All such construction shall be in compliance with all applicable building, mechanical and fire codes. Utilities constructed by the LESSEE within the public right-of--ways or within public utility easements will normally be accepted and maintained by CITY or utility companies maybe used to serve other customers of LESSEE'S without payment of fees or reimbursement of construction cost to the LESSEE. However, this does not preclude several lessees from agreeing to share the cost of constructing a utility to serve their facilities. 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 direct costs of such oversizing shall be borneby CITY or other utility company. Such costs shall be limited to the supplier's cost of the additional fittings, 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 CITY or utility company. LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent, investment, or costs incurred by LESSEE with respect to any required permits for construction or operation of LESSEE'S facilities on the Leased Land, it being the intent ofthe parties that the risk of obtaining required permits be solely a risk undertaken by LESSEE. 5.2 Third-Party Improvements. At the request of LESSEE, CITY shall, from time to time, execute and deliver, or join in execution and delivery of, such documents as are appropriate, necessary, or required to impose upon the Leased Land in accordance with the terms of this LEASE covenants, conditions and restrictions providing for the granting of uses of the Leased Land, or any part thereof, the establishment of party walls, the establishment of mutual and reciprocal parking rights or rights of ingress or egress, or other like matters ~' (herein called "third-party improvements"), all of which are for the purpose of the orderly development of the Leased Land as a commercial unit subject, however, to the conditions that: a) A11 such matters shall be limited to the Lease Term and shall terminate upon termination of this LEASE for whatever reason. b) Any such matters of a permanent nature extending beyond the Lease Tenn shall not be granted without the prior written approval of CITY. In any of the foregoing instances referred to in this Section, CITY shall be without expense therefor, and the cost and expense thereof shall be borne solely by LESSEE. c) At the expiration of the Lease Term (including any extended period) third-party improvements on the Leased Land other than portable equipment shall become the property of CITY without the payment of any compensation to LESSEE. 5.3 Easements. In order to provide for the orderly development of the Leased Land and adjacent lands, it maybe necessary, desirable or required that street, railroad, water, sewer, drainage, gas, power line and other easements and dedications and similar rights be granted or dedicated over or within portions of the Leased Land. As additional consideration for this LEASE, CITY and LESSEE each shall, at the request of the other, join with each other in executing and delivering such documents from time to time and throughout the Lease Term as maybe appropriate, necessary, or required by the several governmental agencies (including the City of Seward), public utilities and other users or tenants of CITY land for the purpose of granting such easements and dedications; provided, however, that such easements and dedications and similar rights do not unreasonably interfere with LESSEE'S operations. The costs of locating or relocating any public easements or restrictions of record including any relocation of public road, railroad, utility, or other easements shall be at the sole cost and expense ofthe party requesting the relocation. CITY shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or other public property. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. ARTICLE 6 -CONSTRUCTION BY LESSEE 6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter, remodel, reconstruct, rebuild, build and/or replace buildings and other improvements on the Leased Land, subject to the following conditions: a) The cost of any construction, reconstruction, demolition, or of any changes, alterations or improvements, shall be borne and paid for by LESSEE. 8 ~~ b) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. c) LESSEE shall provide CITY with a copy of all building plans and specifications and a site development plan or plans (based on a recent survey) for the Leased Land prior to commencement of construction. d) LESSEE is solely responsible for resurveying and locating improvements on the Leased Land in such manner not to violate building setback requirements or encroach into rights-of--ways or easements. On completion of any improvements, LESSEE shall provide CITY a copy of an as-built survey depicting the improvements as completed on the Leased Land. e) Any general contractor employed by LESSEE shall be appropriatelybonded byuse 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 CITY prior to commencement of construction. If the cost of the work is less than FIFTY THOUSAND DOLLARS ($50,000.00), LESSEE shall provide CITY, if no performance and labor and material bonds are provided by LESSEE, any necessary assurances or guarantees that the contemplated work will be performed by the general contractor or by LESSEE. In the event that LESSEE elects to construct the facility with its own personnel and equipment, or the personnel and equipment of any corporation or person that is an "aiTiliate" of LESSEE as such term is defined in AS 10.06.990(2) or Alaska limited liability company in which LESSEE maintains a substantial membership interests, a performance bond shall be required when the cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000). f) CITY may, as contemplated by Alaska Statutes, give notice ofnon-responsibility for any improvements constructed or effected by LESSEE on the Leased Land. g) LESSEE shall comply with all federal, state and local statutes and regulations with respect to such construction, including but not limited to all applicable building, mechanical, and fire codes. 6.2 City Review of Construction. CITY shall have the right to review initial plans, including those supplied to CITY under Section 6.1 hereof, and any future changes or additions to LESSEE'S facilities on the Leased Land, by reviewing the design thereof prior to the commencement of construction. CITY shall have the right to comment upon that design and to require LESSEE ~ Afriliate means a person that directly or indirectly through one or more intermediaries controls, or is conll'olled hy, or is under common control with, a corporation subject to the Alaska Corporation Code. 9 'I to make reasonable changes so as to avoid interference with public operations, but the exercise ofthese rights shall not imply any obligation to do so nor any obligation to do so in a particular way. LESSEE shall construct the facility in accordance with final design specifications approved by CITY. CITY's representatives may monitor the work and shall have access to the site at all reasonable times. LESSEE shall be solely responsible for completing all improvements according to LESSEE'S plans and specifications and shall bear all risk, responsibility, and liability for properly surveying the Leased Land before construction and to place all improvements on the Leased Land without encroaching upon any land, easements, rights-of--way, or setback requirements. LESSEE shall obtain the usual and customary performance guarantees from its contractors, and CITY shall be named as an additional insured. ARTICLE 7 -RETURN OF LEASED LAND/SITE CONDITIONS 7.1 Return of Leased Land in Original Condition. Subject to the provisions of Article 11.1 herein, upon termination of this LEASE for any reason, LESSEE shall return the Leased Land to CITY in the same condition as at the commencement this LEASE, subject to normal, non-abusive use. The Leased Land shall be free of all Hazardous Materials and contamination arising out of or resulting from or occurring during LESSEE'S operations or use of the Leased Land during this LEASE. ARTICLE 8 -FORCE MAJEURE In the event either LESSEE or CITY is delayed from performance of any of its obligations under this LEASE due to acts of nature, acts of the enemies of the United States of America, sabotage, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake/tsunami, civil disturbance, or war, the time period wherein such performance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 9 -LESSEE'S ACTS OF DEFAULT Each of the following shall be a "LESSEE Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, any one or more of the following events: 9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20) days from the due date thereof, the rent required to be paid under this LEASE. 9.2 Failure by LESSEE to comply with Section 4.1 of this LEASE. 9.3 Failure by LESSEE to observe, fulfill or perform any covenants, conditions or agreements on its part to be observed or performed under this LEASE, other than payment of rent or 10 ,:> ~~ compliance with Section 4.1, for a period of thirty (30) days after written notice specifying such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to LESSEE by CITY; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the default is corrected. 9.4 The making by LESSEE of an assignment for the benefit of creditors, the filing of a petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt, the petition or application by LESSEE 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 LESSEE 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 in effect which shall remain undismissed for a period of six (6) months from the date of commencement thereof. 9.5 Violation by LESSEE of any laws or regulations of the United States, or of the State of Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States Government applicable to LESSEE'S use of the Leased Land, 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 LESSEE; provided, however, if such violation be such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the violation is corrected. Furthermore, if LESSEE shall contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined provided such proceedings are diligently pursued; provided, however, that any such extension of time shall not be effective if the effect of the interim administrative or judicial action is to cause a stoppage, interruption or threat to the activities of any person or entity other than those of LESSEE. 9.6 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public rights of way clear. ARTICLE 10 -REMEDIES FOR DEFAULT BY LESSEE Whenever an act of default by LESSEE shall have occurred, and any applicable period for giving notice and any opportunity to cure shall have expired, CITY shall have the following rights and remedies all in addition to any rights and remedies that may be given to CITY by statute, common law or otherwise: 11 ~s 10.1 CITY may distrain for rent due any of LESSEE'S personal property which comes into CITY'S possession. This remedy shall include the right of CITY to dispose of personal property distrained in any commercially reasonable manner. It shall be conclusively presumed that compliance with the procedures set forth in the Alaska Uniform Commercial Code (AS 45.29.601-.628) with respect to sale of property shall be a commercially reasonable disposal. 10.2 CITY may re-enter the Leased Land and take possession thereof and, except for anypersonal property of LESSEE which CITY has waived its right to distrain under Section 10.1 above, remove all personal property of LES SEE from the Leased Land. Such personal property may be stored in place or maybe removed and stored in a public warehouse or elsewhere at the cost ofLESSEE all without service ofnotice or resort to legal process, all ofwhich LESSEE expressly waives. 10.3 In addition to the above, CITY may: a) Declare this LEASE terminated; b) Collect any and all rents due or to become due from subtenants or other occupants of the Leased Land; c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover an amount to be due immediately on breach equal to the unpaid rent for the entire remaining term of this LEASE. e) Recover all damages incurred by CITY by reason of LESSEE'S default or breach including, but not limited to, the cost of recovering possession of the Leased Land, expenses of reletting including costs of necessary renovation and alteration of the premises, reasonable attorney's fees and any real estate commissions actually paid. fl Remove or require the removal of any improvements constructed without CITY approval or constructed contrary to site development plans approved by CITY and recover all costs and expense incurred by CITY to remove violating improvements. 10.4 If LESSEE does not immediately surrender possession ofthe Leased Land after termination by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess the Leased Land and expel LESSEE 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. 12 L~ 10.5 No expiration or termination of this LEASE shall expire or terminate any liability or obligation to perform of LESSEE'S which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. 10.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by CITY of any one or more of the rights and remedies provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all other rights or remedies provided for in this LEASE or now or thereafter existing at law, or in equity or by statute or otherwise. 10.7 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 maybe deemed expedient. ARTICLE 11 -TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 11.1 Real Property Improvements. All improvements constructed by LESSEE onthe Leased Land or on easements to or from the same, such as buildings, warehouses, conveyor systems, ditches, sewer lines, water lines, dikes or berms and similar improvements, shall become the property of CITY upon termination of this LEASE for any reason; provided, however, that CITY may require LESSEE to remove any improvements designated by CITY and without cost to CITY. 11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding, LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly remove, in no event later than ninety (90) days from the termination of the LEASE, trade fixtures and equipment from the Leased Land provided that LESSEE shall repair any damages to the Leased Land caused by such removal. ARTICLE 12 -ASSIGNMENT OR SUBLEASE 12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been determined to be in the public interest by the City Council of CITY for the reasons set forth in the approving Resolution. The rights and duties created by the LEASE are personal to LESSEE and CITY has granted the LEASE in reliance upon the individual character and financial capability of LESSEE. Therefore, LESSEE shall not assign or sublease this LEASE without CITY'S prior written consent, in CITY'S sole discretion. 12.2 Assignment of Lease. for Security. Notwithstanding Section 12.1 above, LESSEE may assign, encumber or mortgage its interest in this LEASE or improvements on the Leased Land, by 13 ~S deed of trust or other security instrument, to an institutional lender ("Lender") for development of or operations on the Leased Land, provided that Lender shall be subject to all obligations ofLESSEE under the terms ofthis LEASE upon foreclosure. CITY shall furnish Lender, at the address provided to CITY by Lender in writing, with notice of any default or breach of LESSEE under this LEASE. Lender shall have the right (without being required to do so and without thereby assuming the obligations of LESSEE under this LEASE) to make good such default or breach within thirty (30) days after written notice specifying such breach. Notwithstanding the provisions of Article 10 above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; provided, a) If Lender, with respect to any default or breach other than a failure to make any required payment ofrent or other money, shall undertake within thirty (30) days after notice to cure the default or breach and shall diligently and in good faith proceed to do so, CITY may not terminate this LEASE or relet the Leased Land unless Lender fails to cure the default or breach within a reasonable period of time thereafter; and b) If the default for which notice is given is a breach of Section 9.3, CITY shall not exercise any of the remedies afforded to it under Article 10 above so long as LESSEE or Lender remains in possession of the Leased Land and satisfies LESSEE'S obligations under the terms of this LEASE. Upon foreclosure or other assertion ofits security interest, Lender may fizrther assign, transfer, or dispose of its interests, provided that any subsequent assignee, purchaser or transferee shall remain bound by etch and every term of this LEASE. 12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska limited liability company in which LESSEE maintains a substantial membership interestZ; provided, however, that LESSEE'S full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ZAHiliate means a person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, a corporation subject to the Alaska Corporation Code. 14 :. ~~ ARTICLE 13 -LESSEE'S DUTY TO DEFEND/INDEMNIFY LESSEE shall defend, indemnify and hold harmless CITY, its officials, employees, agents, and contractors from any and all liability or claims for damages, including personal injuries, environmental damage, death and property damage arising out of or resulting from LESSEESs use of the Leased Land or the use of the Leased Land by LESSEE'S sublessees, assignees, agents, contractors or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. If any action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE shall notify CITY promptly in writing of such action or proceeding. ARTICLE 14 -CITY'S DUTY TO DEFEND/INDEMNIFY CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or claims for damages, including personal injuries, death and property damage arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. ARTICLE 15 -INSURANCE 15.1 Minimum Insurance Requirements. Prior to commencement ofthe Lease Term or LESSEE'S occupancy of the Leased Land, LESSEE shall procure and maintain, at LESSEE'S sole cost and expense, comprehensive commercial general liability insurance with limits of liability of not less than TWO MILLION DOLLARS ($2,000,000) for all injuries and/or deaths resulting to any one person and TWO MILLION DOLLARS ($2,000,000) limit from any one occurrence. The comprehensive commercial general liability insurance shall include coverage for personal injury, bodily injury, and property damage or destruction. Coverage under such policies of insurance shall include collapse and underground property damage hazards. Contractual liability insurance coverage in the amount of not less than TWO MILLION DOLLARS ($2,000,000) is also required. LESSEE shall obtain owned and non-owned automobile liability insurance with limits of liability ofnot less than ONE MILLION DOLLARS ($1,000,000) per occurrence combined single limit for bodily injury and property damage. LESSEE shall also maintain workers' compensation insurance as required under Alaska law. The minimum amounts and types of insurance provided by LESSEE shall be subject to revision at the sole discretion of CITY in accordance with standard insurance practices, in order to provide continuously throughout the term ofthis LEASE and any extensions hereof a level of protection consonant with good business practice and accepted standards in the industry. Such factors as changes in the type of or extent of use of the Lease Land, increases in the cost of living, inflationary pressures, and other considerations, shall be utilized in assessing whether the minimum insurance requirements should be increased. CITY shall 15 30 notify LESSEE of any required increase in insurance coverage. All insurance policies shall provide for thirty (30) days' notice of cancellation and/or material change to be sent to CITY at the address designated in ARTICLE 33 of this LEASE. All such policies shall be written by insurance companies legally authorized or licensed to do business in the State of Alaska, and acceptable to CITY (Best's Rating B+ or better). CITY shall be listed as an additional insured under all insurance policies. LESSEE shall furnish CITY, on forms approved by CITY, certificates evidencing that it has procured the insurance required herein prior to the occupancy of the Leased Land or operation by LESSEE. Insurance policy deductibles are subject to approval by CITY. Nothing herein contained shall prevent LESSEE or CITY from placing and maintaining at CITY'S or LESSEE'S own individual cost and expense, additional or other insurance as may be desired. The minimum insurance requirements under this LEASE shall not act to limit LESSEE'S liability for any occurrence and shall not limit LESSEE'S duty to defend and indemnify CITY for claims related to this LEASE or the Leased Land. 15.2 Subrogation Rights Waived. To the extent permitted by law, LESSEE hereby releases CITY, its elected and appointed officials, employees and volunteers and others working on behalfof CITY from any and all liability or responsibility to LESSEE or anyone claiming through or under LESSEE by way of subrogation or otherwise, for any loss of any kind (including damage to property caused by fire or any other casualty), even if such loss shall have been caused by the fault or negligence ofthe CITY, its elected or appointed officials, employees or volunteers or others working on behalf ofthe CITY. This provision shall be applicable and in full force and effect only with respect to loss or damage occurring during the time of LESSEE'S occupancy or use (including LESSEE's occupancy or use prior to the Effective Date of this LEASE), and LESSEE'S policies of insurance shall contain a clause or endorsement to the effect that such release shall not adversely affect or impair such policies or prejudice the right of LESSEE to recover thereunder except as against CITY (including its elected and appointed officials, employees and volunteers and others working on behalfof CITY) during the time of LESSEE'S occupancy or use. LESSEE agrees that its policies of insurance will include such a clause or endorsement. ARTICLE 16 -CONDEMNATION If all or any part ofthe Leased Land is condemned for a public use by any government agency or other duly authorized entity, CITY and LESSEE 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 of the taking. Neither LESSEE nor CITY 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 CITY which includes specific damages for loss of LESSEE'S leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. 16 ~~ If part but not all of the Leased Landis condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. IfLESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts and liens to which the Leased Land is subject. If at the time of such partial taking for public use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable and partial abatement ofthe rent beginning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. ARTICLE 17 -ARBITRATION 17.1 Arbitration. a) Disputes between the parties with respect to the performance of this LEASE that cannot be resolved by the parties, shall be submitted to an independent arbitrator for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS 09.43.010 et. sew.), as it now exists or may hereafter be amended from time to time, and judgment on the award may be entered in any Superior Court in the State of Alaska. Notwithstanding the foregoing, arbitration shall not be applicable to claims or disputes involving a requested remedy having a value of more than Fifty Thousand Dollars and No/100s ($50,000) (exclusive of interest and costs). All demands for arbitration and all answering statements thereto that include any claim must contain a statement that the total sum or value in controversy, as alleged by the party making such demand or answering statement, is not more than Fifty Thousand Dollars and No/100s ($50,000.) The arbitrator will not have jurisdiction, power, or authority to consider or make findings (except to deny jurisdiction) concerning any claim, counterclaim, dispute or other matter in question where the amount in controversy of any such claim, counterclaim, dispute or matter is more than Fifty Thousand Dollars and No/100s ($50,000). The costs and expenses of arbitration shall be shared equally by the parties, and each party shall bear its own attorney's fees and costs. b) Arbitration procedures shall be applicable only to contract, negligence, and similar claims arising from or related to this LEASE, and shall not be used to resolve or determine any claim based upon fraud, intentional misrepresentation, nor any claim based on conduct that is a felony crime in the State of Alaska. c) Written notice of requests for arbitration of disputes may be served by either party to 17 32 this LEASE upon the other party. Arbitration of any dispute or claim shall be determined by a single arbitrator selected from a list of not less than five arbitrators obtained from the presiding Superior Court Judge or other appropriate judicial officer in Anchorage, Alaska. The arbitrator shall be a person who (a) has not less than five (5) years legal experience in the State of Alaska prior to appointment; and (b) such legal experience includes substantial experience with long-term commercial real property transactions. Each party shall be provided with a copy of the list and shall be afforded a maximum of ten (10) working days to become familiar with the qualifications of the prospective arbitrators. The arbitrator shall be selected by each party, commencing with the party demanding the arbitration, striking one name from the list until only a single name remains. d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other location as the parties may agree. Each party shall produce at the request of the other party, at least thirty (30) days in advance of such hearing, all documents to be submitted at the hearing and such other documents as are relevant to the issues or likely to lead to relevant information. e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law, and the written decision shall be supported by substantial evidence in the record. Failure to apply Alaska law, or entry of a decision that is not based on substantial evidence in the record, shall be additional grounds for modifying or vacating an arbitration decision. ARTICLE 18 -MAINTENANCE AND REPAIRS 18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof, if any, LESSEE shall, at LESSEE'S sole cost, risk and expense, maintain the Leased Land, including any improvements placed thereon by LESSEE, in as good condition as received or constructed by LESSEE, subject to normal, non-abusive use. CITY, at CITY'S sole option and expense, may, prior to the commencement of construction by LESSEE, perform maintenance and preventative work on the Leased Land, exclusive of improvements placed thereon by LESSEE, in order to prevent erosion, mitigate damage to plants and animals, or prepare the Leased Land for eventual development by LESSEE or others bygrading, filling or contouring the Leased Land. Any such work performed by CITY shall be at CITY'S sole expense and risk unless LESSEE agrees, in advance and in writing, to share such expense and risk. LESSEE shall maintain in first class condition at all times all fire, pollution and other protective equipment, if any are placed on Leased Land. 18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance of LESSEE'S maintenance responsibilities as they relate to public health or safety and LESSEE shall promptly within thirty (30) days of receipt of such notice advise CITY in writing of its 18 3 .~ proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE'S operation such that the surrounding land and port facilities are exposed to risk, unnecessary potential hazards, or a risk to the public interest (as distinguished from a business risk), or if CITY is not satisfied with the proposed schedule of repairs either because ofthe delays therein or the scope ofthe repairs, then CITY may engage an independent engineering consultant well-versed and experienced who shall furnish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recommendations, if the report requires repair then LESSEE shall pay the cost ofthe report and perform such work in accordance therewith at LESSEE's cost, risk and expense. 18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being necessary or advisable or reasonable to protect the public facilities on adjacent land, it may submit the matter to arbitration; provided, however, that pending the decision ofthe arbitrator it shall fully comply with the maintenance requests. If an arbitration award should ultimately find that the repairs were not necessary then LESSEE may either deduct from future rental payments the cost of such repairs or be reimbursed therefor. In deciding whether repairs requested by CITY or required by an engineering report are necessary, the arbitration panel is to give primary consideration to the safety and welfare of the Seward port facilities and the citizens of Seward in light of the highest standards in the industry. If any facility or service provided by CITY to the Leased Land shall become inadequate due to changes in environmental control standards or should any facility require updating or improvement by reason of a change in LESSEE'S use of the Leased Land or operations therefrom, LESSEE shall either construct such improvements at LESSEE'S own cost or reimburse CITY for such work at the option of CITY. ARTICLE 19 -ENVIRONMENTAL CONCERNS 19.1 Hazardous Materials. a) Condition of Site. LESSEE has had full opportunity to examine the site for the presence of any Hazardous Material and accepts the site in "as is" condition. LESSEE may elect, at LESSEE's sole cost, to conduct a baseline soils test prior to execution ofthis LEASE. b) Release of CITY. Any other provision of this LEASE to the contrary notwith- standing, LESSEE releases CITY from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert 19 3~ fees) arising prior to, during, and after the term of this LEASE, and resulting from the use, keeping, storage or disposal of Hazardous Material on the Leased Land by LESSEE or its predecessors in interest, or arising out of or resulting from LESSEE's operations at the Leased Land or the operations of its predecessors in interest at the Leased Land except for those claims arising out of CITY's sole negligence or intentional misconduct. This release includes, without limitation, any and all costs incurred due to any investigation of the Leased Land or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law or regulation. c) Use of Hazardous Materials on the Site. i) LESSEE shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Leased Land except for such Hazardous Material as is necessary to conduct LESSEE'S authorized use ofthe Leased Land. ii) Any Hazardous Material permitted on the Leased Land as provided in this paragraph, and all containers therefor, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. iii) LESSEE shall not discharge, leak or emit, or permit to be discharged, leaked or emitted, any material into the atmosphere, ground, ground water, sewer system or any body of water, if such material (as reasonably determined bythe City, or any governmental authority) does or may, pollute or contaminate the same, or may adversely affect the (a) health, welfare or safety of persons, whether located on the Leased Land or elsewhere; or (b) condition, use or enjoyment of the Leased Land or any other area or personal property. iv) LESSEE hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage and disposal of Hazardous Material kept orbrought on the Leased Land by LESSEE, its authorized representatives and invitees, and LESSEE shall give immediate notice to CITY of any violation or potential violation of the provisions of this subparagraph. d) Indemnification of CITY. Any other provision of this LEASE to the contrary notwithstanding, LESSEE shall defend, indemnify and hold CITY harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: 20 35 i) The presence, disposal, release or threatened release of any such Hazardous Material which is on or from the Leased Land, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii) Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Leased Land; iii) Any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material or any use of the Leased Land; and/or iv) Any violation of any laws applicable thereto; provided, however, that this Section 19.1(d) shall apply only if the acts giving rise to the claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (1) occur prior to or during the term ofthis LEASE; and (2) arise in whole or in part from the use of, operations on, or activities on the Leased Land by LESSEE or LESSEE's predecessors in interest, employees, agents, invitees, contractors, subcontractors, authorized representatives, subtenants or any other persons. The provisions of this subparagraph shall be in addition to any other obligations and liabilities LESSEE may have to CITY at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this LEASE. e) Operator. For all purposes, LESSEE shall be deemed the operator of any facility on the Leased Land. f) Hazardous Material Defined. As used in this LEASE, Hazardous Material is any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defined as industrial waste, hazardous waste, extremely hazardous waste or a hazardous substance under any Environmental Law. Notwithstanding any statutory petroleum exclusion, for the purposes ofthis LEASE, the term Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. g) Environmental Law Defined. As used in this LEASE, Environmental Laws include any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the 21 ~~ generality of the foregoing, Alaska Statutes Title 46, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. 19.2 Permits and Reporting. a) Permits Required by Other GovernmentalAgencies. LESSEE shall obtain all permits or approvals required by any applicable law or regulation. Copies of all such permits shall be provided to CITY prior to LESSEE commencing work under this LEASE. LESSEE shall promptly make all reports to any federal, state or local government or agency required by any permit or Environmental Law, including reports ofany spill or discharge of Hazardous Material. The CITY, through the City Manager, may order LESSEE to immediately cease any operations or activities on the Leased Land 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 LEASE. b) Correspondence With and Reports to Environmental Agencies. LESSEE shall immediately (the same or the next business day) provide CITY with copies of all correspondence and notice, including copies, ofall reports between LESSEE and any state, federal or local government or agency regulating Hazardous Material which relates to LESSEE's operations on or use of the Leased Land. ARTICLE 20 -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 LEASE is unamended and in full force and effect (or, ifthere 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 thereof); and stating the dates to which the rent and other charges have been paid in advance. ARTICLE 21 -CONDITIONS AND COVENANTS All the provisions ofthis LEASE 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 22 - NO WAIVER OF BREACH 22 I No failure by either CITY or LESSEE to insist upon the strict performance by the other of any term, covenant or condition ofthis LEASE 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 LEASE, but each and every term, covenant and condition of this LEASE shall continue in full force and effect with respect to any other then existing or subsequent breach. ARTICLE 23 -TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 24 -COMPUTATION OF TIME The time in which any act provided by this LEASE 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 or a holiday, and then it is also excluded. ARTICLE 25 -SUCCESSORS IN INTEREST Each and all of the terms, covenants and conditions in this LEASE shall inure to the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 26 -ENTIRE AGREEMENT This LEASE contains the entire agreement ofthe parties with respect to the matters covered by this LEASE, and no other agreement, statement or promise made by any party which is not contained in this LEASE shall be binding or valid. ARTICLE 27 -GOVERNING LAW This LEASE shall be governed by, construed and enforced in accordance with the laws ofthe State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter amended, including without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 28 -PARTIAL INVALIDITY If any provision of this LEASE is held by a court of competent 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. 23 ~~ ARTICLE 29 -RELATIONSHIP OF PARTIES Nothing contained in this LEASE shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between CITY and LESSEE; and neither the method of computation of rent, nor any other provisions contained in this LEASE nor any acts of the parties, shall be deemed to create any relationship between CITY and LESSEE other than the relationship of lessee and lessor. ARTICLE 30 -INTERPRETATION The language in all parts ofthis LEASE shall in all cases be simply construed according to its fair meaning and not for or against CITY or LESSEE as both CITY and LESSEE have had the opportunity to seek assistance of counsel in drafting and reviewing this LEASE. ARTICLE 31 -CAPTIONS Captions ofthe articles, paragraphs and subparagraphs ofthis LEASE 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 interpretation, construction or meaning of the provisions of this LEASE. ARTICLE 32 -AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 33 -NOTICES 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 addresses stated in this Article and to such other persons and addresses as either party may designate. Notice by mail shall be deemed to have been given at the time of mailing. All notices, demands and requests from LESSEE to CITY shall be given to CITY at the following address: City Manager CITY OF SEWARD PO Box 167 Seward, Alaska 99664 All notices, demands or requests from CITY to LESSEE shall be given to LESSEE at the following address: 24 ;~ Dockside Ventures, LLC P.O. Box 54 Seward, AK 99664 Attention: Cindy Ranta Each party shall have the right, from time to time, to designate a different address by notice given in conformity with this Article. ARTICLE 34 -FIRE PROTECTION LESSEE shall at its sole cost, risk and expense provide fire detection and protection to its operations on the Leased Land and fire prevention to industry standards for risks to adjacent facilities such that those risks are minimized. LESSEE shall continue to provide and maintain industry accepted standards of fire protection such that the City of Seward's ISO rating is not degraded by reason of LESSEE'S operation. The parties agree that with the rapid expansion oftechnology in the field of fire prevention and control LESSEE's obligations hereunder may vary during the term ofthis LEASE and CITY may submit LESSEE'S compliance with its obligation hereunder to arbitration not more frequently than once each five years. 25 ~~ IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: CITY OF EWrARD G~ hillip ates, City Manager Date:_~/,J/d f ATTEST: Je Le CM Ci Clerk STATE OF ALASKA THIRD JUDICIAL DISTRICT LESSEE: DOCKSIDE VENTURES, LLC ~~ Cindy Ranta, Managing Member Date: ~~~/D9 eea' ~~~ ~'~ SF~ •~is °p~,, , :. ' yr bP~.. ~~ ~~~~ ~-~ /3 ~ 1't r ~ . o.. ;..} . - ~.'~~ a .~~, $y ~~~ ~1 ~1,1~~ ~~~+9D ~~~{ psgrE ®~ ~`'~as~° ss. The foregoing instrument was acknowledged before me this S dayof~, 2009, by Phillip Oates, City Manager of the City of Seward, Alaska, on behalf of the City. ~~~ ~ Notary Public in and for Ala ka My Commission Expires: ~ ~ 2 /3 - o?D// a ~~ tAR~ y~ ~ '0l/BU~ ~ 26 4 ~. STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this 3o day of {~ PR f L , 2009, by Cindy Ranta who executed the foregoing document on behalf of Dockside Ventures, LLC as Managing Member of the limited liability company. emu. r3. G~-~_ ~,~,~~~ Notary Public in and for Alaska \~~,,,,~, "OFFICIAL 5 E A L " My Commission Expires: 8[[ / ZoOR 'TIMOTHY B. CRONIN i "~ - NOTARY PUBLIC, STATE OF ALASKA MY COMMISSION EXPIRES 8/62009 27 42 PERSONAL GUARANTEE To induce the City of Seward, P.O. Box 167, Seward, AK 99664 ("Cit}~') to enter into a Lease Agreement with Dockside Ventures, LLC, P.O. Box 54, Seward, AK 99664 ("Dockside") effective , 2009, the undersigned personally guarantees payment of all obligations of Dockside as described in the Lease Agreement. The Lease Agreement covers the following real property: Lot 10, Block 6, Seward Small Boat Harbor Subdivision, as shown on Plat 2000-19, Seward Recording District, Third Judicial District, State of Alaska, consisting of approximately 1,220 square feet, more or less. 1 agree to provide the City with written notification of any changes in my address, and acknowledge that any notice required to be given by the City will be effective if mailed to the address shown below or such changed address on file with the City. My guarantee is absolute and unconditional. Upon default of Dockside under the Lease Agreement, I agree to immediately become liable for Dockside's obligations. The City need not seek performance, payment, and collection from Dockside before seeking payment from me. If more than one person guarantees payment, I agree to be jointly and severally liable with all other guarantors for payment. Dated this ~~ day of rl ( , 2009. Signed in my individual capacity as guarantor: r_, Cindy A. anta Niklas O. Ranta P.O. Box 54 P.O. Box 54 Seward, AK 99664 Seward, AK 99664 t ,-" ~ ~~ - Steven Zerni P.O. Box 693 Seward, AK 99664 ~' ~ /~~ Ellen Zernia , ~ P.O. Box 693 l Seward, AK 99664 43 ~,~, `j Lot 10, Block 6 Seward Small Boat Harbor 0 50 100 Feet I , ~ a a Boardwalk Lease Site N May 11, 2009 ~~ Checked by: p.G ~efIZ YUP~i ~ry ma ~u ei. ser d 2 ~„ H9 io'I ° ~% 3 C r Q s ° ~OOrC~ i p ~ ~ Mfi Sal ~~I ~v '~ g o dS i^I °ei. F°o ~ tl ~ - "`mJ ~ OWi 3<i is. f I£y n\J ~' a~ ~yy~ s k n ~ ~ ~~ ~ ~\e ~ r i~ N f ~ G p t :.~ o~ _- r,~ .i i ~a <e °i~.. 9~ ' I'%~a o~R ~: xo7 a +%8 ~~ h r, ~, s ,_ ~r%~m L~s~ 1"X I _ --SHSe I~' ~ I l Si x e~ m is x~,~ k z i s t 4 9cTiX i . 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Ba ~ ° ~ E S 6 _ £ yi ~ - pE ° ~ d a e ~sb . x s afi a E r as $ ° ~ a ~ ~~8 e s s a eg e- ~& e s o? ai s a` fi k "' o f t o a a~'Y °z _ P § e z s°. a a xa e e ~ a a a e ~ € s ~_ ~_ ~° ~~' - b .. e a _ a ~Q' F 0 o e ~ ~ ~ /~~ti~~ ~ ~e~lt„l~/it. ~~~icr/'1 lur~J ~voq~-gay ~~ c ~UU~ _ ~~s ~~ ~~ S',1~s~9 ~ ~~~ f~! ~~ Agenda Statement Meeting Date: May 11, 2009 To: Mayor Corbridge, City Council From: Jean Lewis, City Clerlc~~' / Agenda Item: Motion for Reconsidera~ti °on~ BACKGROUND & JUSTIFICATION: Resolution 2009-034, to amend the Port & Harbor tariff by temporarily decreasing launch fees effective May 1, 2009 through December 31, 2009, FAILED to be approved on Apri127, 2009 by a 3-2 vote (2 members were absent). also .. . Resolution 2009-035, to amend the city parking fee schedule for city-owned parking lots, to temporarily decrease daily parking fees effective May 1, 2009 through December 31, 2009, was PASSED (5-0) and therefore approved unanimously on Apri127, 2009. A motion to reconsider BOTH resolutions was filed the next day, Tuesday, April 28, 2009 at 4:55 pm by Council Member Willard Dunham. Mr. Dunham voted on the prevailing side of both resolutions and the request was timely. This motion for reconsideration is in order. MOTION TO RECONSIDER PROCEDURES: In this case there will be two motions to reconsider. The motion to reconsider is handled separately from the Resolution. There must be a motion to reconsider both resolution 2009-034 and 035 individually, and there MUST be a second for each. If that occurs, the motion to reconsider for that resolution is on the table and can be discussed. After discussion, the motion to reconsider MUST pass by a 2/3 vote of the members rp went (our code, not Roberts Rules dictates a 2/3 vote for reconsideration motions). If the motion to reconsider passes by 2/3 vote, the original resolution is back on the table for further discussion. This must then pass by the usual majority (4) vote. If the motion to reconsider fails to pass by 2/3 vote, the original resolution stands as was previously voted on April 27, 2009. CONSISTENCY CHECKLIST: Yes No 1. Comprehensive Plan _ _ 2. Strategic Plan _ _ 3. Other SCC 2.10.065 & _ _ 4. Not applicable CCRofP Rule 28 & 34 FISCAL NOTE: If Resolution 2009-034 is ultimately approved, this will result in $30,000 being transferred from the general fund and the parking fund. If not approved, appropriations remain the same as set out in the 2009 budget. ~~ If Resolution 2009-035 is approved, this may reduce parking revenues by at least $104,750 and spends the $15,000 contribution in the Parking Enterprise Fund. If not approved, appropriations remain the same as set out in the 2009 budget. Approved by Finance Department: ~,.~,~/~,~,~,~,,;~„ RECOMMENDATION: Dunham will make the motion for reconsideration on each Resolution separately. Each motion will need a second to be discussed and voted on, before the individual resolution can be again discussed. '~ g FAILED Sponsored by: Oates CITY OF SEWARD, ALASKA - RESOLUTION 2009-034 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE PORT AND HARBOR TARIFF BY TEMPORARILY DECREASING LAUNCH FEES, EFFECTIVE MAY 1, 2009 THROUGH DECEMBER 31, 2009 WHEREAS, the Seward City Council authorized an increase in launch fees from $5.00 to $10.00 per day, and from $50 to $100 per year (annual launch fee pass) in Resolution 2007-122 passed on November 26, 2007; and WHEREAS, due to the current economic climate and the potential for higher fuel costs and lower disposable income to discourage visitors from visiting Seward for recreation and business purposes; and WHEREAS, the administration seeks to provide rate relief for customers to encourage them to choose Seward as their recreation and business destination; and WHEREAS, in response to customer comments, the City seeks to make it more convenient for the customers currently paying separately for launch fees, parking fees, and camping fees, by eliminating the launch fees altogether, and reducing the parking fees; and WHEREAS, the 2009 Harbor Operating Budget estimates launch fee revenues of $50,000; to offset this loss in revenue, the General Fund will contribute $15,000 and the Parking Enterprise Fund will contribute $15,000 to the Harbor Enterprise Fund, resulting in an anticipated shortfall in harbor launch fees of $20,000; and WHEREAS, in addition to the temporary reduction in launch fees, the administration will recommend reducing daily parking lot fees (this does not affect parking passes) by half during the same May through December, 2009 period, resulting in an expected loss of revenue of $104,750 to the Parking Enterprise Fund. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council of the City of Seward resolves to amend Subsection 240 (b) - Launch Fees of the Port and Harbor Tariff by temporarily decreasing the per-launch fees from $10 to $0, and temporarily reducing the annual launch permit fee from $100 to $0 for the period May 1, 2009 through December 31, 2009, after which time, said rate relief shall expire and rates shall be as approved in Resolution 2007-122 on November 26, 2007. Section 2. The amount of $15,000 is hereby appropriated from the General Fund balance CITY OF SE~A1~D, ALASKA T2ES®Li11'I®N 2009-0034 account no. 101-0000-3071-0401, and $15,000 is hereby appropriated from the Parking Enterprise Fund unrestricted net assets account no. 403-0000-3071-0401 to the Harbor Enterprise Fund transfers-in account no.401-0000-3070-OXOX; and launch fee revenues are downward adjusted from $50,000 to $0 for account no. 401-4360-4780-0530. Section 3. This resolution shall take effect 10 days after adoption. PASSED AND APP12®VED by the City Council of the city of Seward, Alaska, this 27`x' day of April, 2009. THE CITY OF SEWARD ALASKA i ~^ Willard Dunham, Vice Mayor AYES; Valdatta, Bardarson> Keii NOES: Kellar, Dunham ABSENT: Corbridge, Kellar ABSTAIN: None ATTEST: ~.~ ., -• Jean Lewis, City Clerl~ ~ ~~6~ P~~ ~ ~,~~ ~E~~. " `" err A ~~ s ~` ,'. ~, _ _ ' ~~ M ~ ~ ce .,_ r° m .,, ~s a ~~r A ~ ~@ ', ~', ` l '~ s~~a ¢~~~Y'~ezmaa 04az,A ~~ COUNCIL AGENDA STATEMENT Meeting Date: Apri127, 2009 Through: Phillip Oates, City Manage From: Karin Sturdy, Parks and Recreation Director Kari Anderson, Harbormaster Subject: Tempor Reduction (to $0) in Launch Fees for 2009 Season BACKGROUND & JUSTIFICATION Due to the current economic climate and the potential for higher fuel costs and lower disposable income to discourage visitors from visiting Seward for recreation and business purposes, the Harbor, Parking, and Parks and Recreation Departments have collaborated to develop a strategy for encouraging visitors and businesses to "choose Seward" as their destination of choice for the upcoming summer season. Both parking fees and launch fees were doubled beginning in 2008. Launch fees were increased from $5 to $10 per day and from $50 to $100 per year (annual launch fee pass), and parking fees were increased from $5 to $10 per day. These fee increases did generate some negative response from customers, many of whom complained about having to pay three separate fees (launch fees, parking fees, and camping fees). In order to mitigate that complaint, and at the same time, provide an incentive for visitors and businesses to choose Seward as their 2009 summer destination, staff is recommending a temporary reduction in launch fees (fees will not be collected during this period), and a reduction in half, of daily parking lot fees. CONSISTENCY CHECKLIST Yes No N/A 1. Comprehensive Plan X 2. Strategic Plan }~ FISCAL NOTE The 2009 Harbor Operating Budget estimates launch fee revenues of$50,000. To offset a portion ofthis loss in revenue, the General Fund will contribute $15,000 and the Parking Enterprise Fund will contribute $15,000 to the Harbor Enterprise Fund. This will result in an anticipated shortfall in harbor launch fees of $20,000. In a separate resolution, the administration will recommend reducing daily parking lot fees (this does not affect parking passes) by half during the same May through December, 2009 period, resulting in an expected loss of revenue of $104,750 to the Parking Enterprise Fund. Both resolutions recommend reinstating the current fees beginning January 1, 2010. Finance Department: ~,~/l,~W,,~.JvT/CGsilirt~-, 0 5i ATTORNEY REVIEW X RECOMMENDATION Council approve Resolution 2009- 03~ authorizing a temporary reduction in launch fees, and appropriating funds. 5~ Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-035 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE CITY PARKING FEES SCHEDULE FOR CITY-OWNED PARKING LOTS, TEMPORARILY DECREASING DAILY PARKING FEES, EFFECTIVE MAY 1, 2009 THROUGH DECEMBER 31, 2009 WHEREAS, the Seward City Council passed Resolution 2007-126 on November 26, 2007, authorizing an increase in parking fees for 2008, representing an increase from $5.00 to $10.00 per day in daily parking fees; and WHEREAS, due to the current economic climate and the potential for higher fuel costs and lower disposable income to discourage visitors from visiting Seward for recreation and business purposes, the administration seeks to provide rate relief for customers to encourage them to choose Seward as their recreation and business destination; and WHEREAS, in response to customer comments, the City seeks to make it more convenient for the customers currently paying separately for launch fees, parking fees, and camping fees, by eliminating the launch fees altogether, and reducing the parking fees; and WHEREAS, the 2009 Parking Operating Budget estimates daily parking lot revenues of $209,500, and this reduction in fees is estimated to reduce parking revenues by at least $104,750, in addition to the $15,000 contribution the Parking Enterprise Fund is making to help offset lost launch fees in the Harbor Enterprise Fund; and WHEREAS, assuming that the Parking Enterprise Fund fully funds its capital budget items in 2009 totaling $340,000 ($250,000 for sealing, striping lots, and $90,000 for automated pay stations), the further one-year loss in revenue will result in a positive, total ending cash balance in the Parking Enterprise Fund of approximately $50,000; and WHEREAS, in addition to the temporary reduction in parking fees (this does not affect parking passes), the administration will recommend reducing daily launch fees to zero during the same May through December, 2009 period. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section I. The Seward City Council hereby amends the City parking fee schedule for City- owned parking lots in 2009, as reflected in Attachment A, provided however, that beginning January 1, 2010, said rate relief shall expire and rates shall be as approved in Resolution 2007-126. aA CITY OF SEWARI3, ALASKA RESOLUTION 2009-035 Secti®n 2. Parking fee budgeted revenues are hereby reduced by $104,750, pro-rated according to the daily parking fee line items approved in the 2009 Operating Budget. Section 3. This resolution shall take effect 10 days after adoption. PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 27`h day of April, 2009. THE CITY O SEWARD ALASKA /~ illard Dunham, Vice Mayor AYES: Valdatta, Bardarson, Kellar, Keil, Dunham NOES: None ABSENT: Corbridge, Smith ABSTAIN: None ATTEST: Jean Lewis, City Cler 3 ~ks,.4`~S ~ ~: 2Y, }. AA`, :, 3;,' 'y 4~a~ d~ '~ Y ~ ~~ ~. Y~ ~~ COUNCIL AGENDA STATEMENT Meeting Date: Apri127, 2009 Through: Phillip Oates, City Manage From: Karin Sturdy, Parks and Recreation Director Subject: Tempora Reduction in Dail Parking Fees for 2009 Season BACKGROUND & JUSTIFICATION Due to the current economic climate and the potential for higher fuel costs and lower disposable income to discourage visitors from visiting Seward for recreation and business purposes, the Harbor, Parking and Parks and Recreation Departments have collaborated to develop a strategy for encouraging visitors and businesses to "choose Seward" as their destination of choice for the upcoming summer season. Both parking fees and launch fees were doubled beginning in 2008. Launch fees were increased from $5 to $10 per day and from $50 to $100 per year (annual launch fee pass), and parking fees were increased from $5 to $10 per day. These fee increases did generate some negative response from customers, many of whom complained about having to pay three separate fees (launch fees, parking fees, and camping fees). In order to mitigate that complaint, and at the same time, provide an incentive for visitors and businesses to choose Seward as their 2009 summer destination, staff is recommending a temporary reduction in launch fees (fees will not be collected during this period), and a reduction in half, of daily parking lot fees. CONSISTENCY CHECKLIST Yes No N/A 1. Comprehensive Plan X 2. Strategic Plan X FISCAL NOTE The 2009 Parking Enterprise Fund Operating Budget estimates daily parking fee revenues of $209,500, and a reduction in half of parking fees will result in a loss of revenues totaling $104,750. In addition, the Parking Enterprise Fund is contributing $15,000 to the Harbor Enterprise Fund to help offset the loss in launch fees. After considering the budgeted $340,000 in capital expenditures anticipated in the Parking Fund in 2009 ($250,000 for sealing and striping parking lots, and $90,000 for automated pay stations), plus the expected $104,7501oss in 2009 parking fee revenues, the Parking Enterprise Fund is expected to end 2009 with a total cash on hand of approximately $50,000. This resolution anticipates reinstating the current parking fees beginning January 1, 2010. Finance Department: ~,~~~~, ATTORNEY REVIEW X RECOMMENDATION Council approve Resolution 2009-035 authorizing a temporary reduction in daily parking fees. 55 Sponsored by: Planning and Zoning Commission CITY OF SEWARD, ALASKA RESOLUTION 2009-040 A RESOLUTION OF THE SEWARD CITY COUNCIL OF THE CITY OF SEWARD, ADOPTING THE PLANNING AND ZONING COMMISSION PRIORITIES FROM APRIL 2009 TO APRIL 2010 WHEREAS, at the April 7, 2009 meeting the Planning and Zoning Commission reviewed their Priorities List; and WHEREAS, the Seward City Council Rules of Procedure, adopted March 14, 1994, state that the Council should meet in an annual joint work session with the Commission to address areas of mutual concern; and WHEREAS, the Commission and Council held a joint work session, reviewed and updated the Planning and Zoning Priorities List on April 8, 2008; and WHEREAS, at the May 7, 2009 meeting the Planning and Zoning Commission reviewed and recommended Council adoption of the 2009 Planning and Zoning Priority List. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The following List of Priorities is hereby adopted: 1) Continue recruitment efforts for the Planning and Zoning Commission. 2) Rewrite of Title 15 3) Update the Municipal Lands Management Plan (1995) in conjunction with the Capital Improvement Plan and the City Land Disposal Policies and Procedures 4) Continue to pursue compliance with the Seward City Zoning Code 5) Meet with Port and Commerce Advisory Board to discuss the South Harbor Uplands 6) Waterfront Park Replat -2010 7) Two Lakes Park Replat 8) Nash Road Bench Study - as funding allows SEWARD, ALASKA Resolution 2009-040 Page 2 of 2 9) Annually review the City of Seward Comprehensive Plan FOLLOW PROGRESS MADE BY OTHER ENTITIES Parks and Recreation Master Plan (1993) Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the Seward Planning and Zoning Commission this l l~h day of May, 2009. THE CITY OF SEWARD, ALASKA AYES: NOES: ABSENT: ABSTAIN: VACANT: ATTEST: Jean Lewis City Clerk, CMC Clark Corbridge, Mayor (City Seal) 5'~ Council Agenda Statement Meeting Date: May 11, 2009 Through: Phillip Oates, City Manage From: Christy Terry, Community Development Director Agenda Item: Resolution Adopting the Planning and Zoning Commission Priorities from April 2009 to April 2010 BACKGROUND & JUSTIFICATION: Annually, the Planning and Zoning Commission establishes their priorities. The Commission began this year's process by reviewing their Priority List at their April 7, 2009 Regular Meeting in preparation oftheir joint work session with Council scheduled for the following evening. During their joint work session, the Commission and Council reviewed and updated the Planning and Zoning Priorities List. At their May 7, 2009 meeting the Planning and Zoning Commission approved Resolution 2009-11 recommending Council adoption of the Commission's Apri12009 to Apri12010 Priority List. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: NA Approved by Finance Department: ~~~~1e~`'~2G+~;[-, RECOMMENDATION: Approve Resolution 2009-~~Adopting the Planning and Zoning Commission Priorities from April 2009 to Apri12010 Sponsored by: Port and Commerce Advisory Board CITY OF SEWARD, ALASKA RESOLUTION 2009-041 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD ADOPTING THE PORT AND COMMERCE ADVISORY BOARD (PACAB) PRIORITIES FROM APRIL 2009 TO APRIL 2010 WHEREAS, PACAB's responsibilities are listed in SCC§ 2.30.325 Powers and Duties; and WHEREAS, at the April 1, 2009 meeting PACAB discussed and reviewed their Priorities List; and WHEREAS, Council and PACAB held an April 8, 2009 joint work session to review and update the current Priority List; and WHEREAS, at their May 6, 2009 Regular Meeting PACAB reviewed and recommended Council adoption of the 2009 Priority List. NOW, THEREFORE, BE IT RESOLVED by the Port and Commerce Advisory Board that: Section 1. The following List of Priorities is hereby adopted: PRIORITIES 1) South Harbor Uplands -continue assisting Council with recommendations for development 2) SCC § Chapter 7.10 Harbor and Port Facilities and the Port and Harbor Tariff Regulations -Rewrite and update for Council approval 3) 1993 Small Boat Harbor Management Plan -Rewrite and update (begin Fall 2009) for Council approval 4) Seward Energy Options -explore 5) 2010/2011 Small Boat Harbor and Seward Marine Industrial Center Budgets -review and provide recommendations 6) AARV -identify specific ways to secure home-porting in Seward 7) Lease vs. Sale Policies -provide recommendations 8) Expand Port Activity -explore Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of City of Seward, Alaska, this 11`h day of May, 2009. ~~ Council Agenda Statement Meeting Date: May 11, 2009 Through: Phillip Oates, City Managers From: Christy Terry, Community Development Director Agenda Item: Resolution Adopting the Port and Commerce Advisory Board's Priorities from April 2009 to Avri12010 BACKGROUND & JUSTIFICATION: Annually, the Port and Commerce Advisory Board (PACAB) establishes their priorities. The Board began this year's process by reviewing their Priority List at their April 1, 2009 Regular Meeting in preparation oftheir joint work session with Council scheduled for Apri18, 2009. During their joint work session, Council and PACAB reviewed and updated the Port and Commerce Advisory Board Priorities List. At their May 6, 2009 meeting PACAB approved Resolution 2009-04 recommending Council adoption of the PACAB Priority List. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: NA 1)// ~~y-~ ~~ ~~~ Approved by Finance Department: V~t~ 0 RECOMMENDATION: Approve Resolution 2009-~}~ Adopting the Port and Commerce Advisory Board's Priorities from Apri12009 to Apri12010. ~jl~ Sponsored by: PACAB CITY OF SEWARD, ALASKA RESOLUTION 2009-042 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ADOPTING THE NORTH HARBOR DEVELOPMENT RECOMMENDATIONS WHEREAS, Council directed the Seward Port and Commerce Advisory Board to generate recommendations to guide city planning and private enterprise in the continued development and management of the North Harbor Area; and WHEREAS, the Port and Commerce Advisory Board held multiple work sessions and regulaz meetings to solicit public comments and discuss development policy for the area; and WHEREAS, the 1993 Small Boat Hazbor Management Plan incorporates and addresses this area of the Harbor, but is outdated; and WHEREAS, City Administration plans to update the Small Boat Harbor Management Plan in 2010; and WHEREAS, the attached recommendations shall be incorporated into the update of the Small Boat Harbor Development Plan; and WHEREAS, the attached recommendations shall be used as a reference for the City of Seward Municipal Lands Management Plan update; WHEREAS, the Port and Commerce Advisory Board recommended Council approval ofthe attached development and management policies for the North Harbor Area. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD ALASKA that: Section 1. For the reasons stated in the recitals, Council adopts of the attached development and management recommendations for the North Harbor Area. Section 2. The development and management recommendations apply to the area with the following boundaries: Port Avenue on the North, Alaska Railroad Property on the East, Fourth Avenue on the West, and Harbor Waters on the South. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 11`h day of May 2009. ~. North Harbor Development Plan Outline Goal: Complete the orderly development of the North Harbor as defined by the boundaries. ZONING Goal: The area is zoned Harbor Commercial District to accommodate economic development and harbor related functions. PLATTING/ BOUNDARIES Goal: Plat the area... REVIEW EXISTING PLATS North Harbor Boundaries- South of Port Avenue West of Alaska Railroad fence East of 4`h Avenue North of J-Dock ramp LAND USE Goal: The area would be used for economic development and homeland security. • Economic Development o Encourage lease or sale of undeveloped land, look at unused parcels. • United States Coast Guard Building o Support opening up land for possible parking east of the railroad line and negotiate for a land swap. o Consider sheet pile zone for security and or stability. o Leave access to NE fish cleaning station. • Other? o Discuss with Seward fisheries lease term and or development of that area. o Consider previous grant requirements/stipulations from previous awards. PARKING AND TRANSPORTATION FACILITIES ~'J "~ 5 Goal: Ensure safe and convenient parking and transportation services that address the needs of Seward residents, businesses and visitors. • Parking Facility o Research designating long term parking further out and short term closer in from float access areas. o Consider paving X-Float road or provide some form of dust control measures. o Parking fees are consistent with the Seward City Code § 11.15.010. See Attachment A for the Parking Fee Schedule. • Boardwalk/Bike Path/Sidewalks o Move pedestrian traffic off Port Avenue and onto sidewalks. • Drainage o Drainage plans need to be created to meet the Storm Water Prevention Plan Permit requirements. o Engineered drawing will be needed. PUBLIC FACILITIES AND SERVICES Goal: Provide quality public facilities and services to the residents, businesses and visitors of Scward. • Utilities o Utility use is directly correlated to development in the North Harbor Area. • Environment and Waste Management o Research cost and pros/cons of vessel wash down facility. • Floats/Docks o Consider piling and wooden decking, construction similar to existing T Dock, the area between I Dock and 50 Ton Travelift and the area between T Dock and NE fish cleaning stations to result in workable space across the entire North Harbor. COMMUNITY APPEARANCE ~~ Goal: Improve the appearance of the community through increased landscaping, beautification efforts and creating a user friendly environment. • Aesthetics o Signage/Interpretive Postings o Improve landscaping for Cruise Ship pedestrian traffic. o Photo Opportunities FUNDING STRATEGIES o Pre-engineering in-house to control architectural and engineering costs whenever possible. ~~ 7 Council Agenda Statement Meeting Date: May 11, 2009 Through: Phillip Oates, City Manage From: Christy Terry, Community Development Director Agenda Item: Resolution Adopting the North Harbor Development Recommendations BACKGROUND & JUSTIFICATION: Council directed the Seward Port and Commerce Advisory Board (PACAB) to generate recommendations to guide city planning and private enterprise in the continued development and management of the North Harbor Area. PACAB then held multiple work sessions and regular meetings to solicit public comments and discuss development policy for the area. Instead of providing an additional Management Plan for the City to adopt and update, Staff recommended updates to the development policy and management of this area be part of the Small Boat Harbor Management Plan. The 1993 Small Boat Harbor Management Plan incorporates and addresses this area ofthe Harbor, but is outdated. City Administration plans to tackle updates of the Small Boat Harbor Management Plan in 2010. The North Harbor recommendations approved by Council shall be incorporated into the update ofthe Small Boat Harbor Development Plan. Additionally, the North Harbor recommendations shall be used as a reference for the City of Seward Municipal Lands Management Plan update that will begin this year. The Port and Commerce Advisory Board recommend Council approval ofthe attached development and management policies for the North Harbor Area. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: NA ~,J ~ Approved by Finance Department: o~~Gfa~~/~LC,L+~ RECOMMENDATION: Approve Resolution 2009-~aAdopting the North Harbor Development Recommendations. ._ 65 '~ ' ` . _~,;, ,,,~, ,~ h ,~. - ~ ~" ~~ Sponsored ny: PACAR CITY OF SEWARD, ALASKA PORT AND COMMERCE. ADVISORY BOARD RESOLUTION 2009-02 RESOLl1TlUN OF THE PORT AND COMMERCE ADVISORY BOARD, SIIPPURTING CITY COUNCIL APPROVAL OF THE NORTH HARBUR DEVI?LOPMENT RECOMMENDATIONS WHEREAS, Council directed the Seward Port. and Commerce Advisory Board generate recommendations to guide city planning and private enterprise in the continued development and management of the North Harbor Arca; and WHEREAS, [hc Port and Commerce Advisory Board held multiple work sessions and regular meetings to solicit public comments and discuss development policy for the area; and WHEREAS, the 1993 Small Boat Harbor Management Plan incorporates and addresses this area of the I larbor, but is outdated; and WHF,REAS, City •4dminislralionptans to update the Sntall Boat Harbor Management Plan in 201 U: and WHEREAS, the attached recommendations shall he incorporated into the update of the Small Boat I larbor Development Plan; and WHEREAS, the attached recommendations shall he used as a rei'erence liar the City of Seward Municipal Lands Management Plan update. that: NOW; THEREFORE., BE IT RESOLVED by the Port and Canmerce Advisory Board Section I. For the reasons stated in the recitals, the Board supports Council approval of the attached development and management recommendations for the North Harbor Area. Section 2. The development and management recommendations apply to the area with the following boundaries: Port Avenue on the North, Alaska Railroad Property on the East, Fourth Avenue on the West, and Harbor Waters on the South. Section 3. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the Port and Commerce Advisory Board this 4°i day oC March, 2009. 6~ Port and Commcrcc Advisors' Board Resolution 2009-02 TFIE C'ITY' OF SEW~RD, ALASKA / 8~°-~~ J Ron L ntt, Chair----- AYES: Batts, Long„ Oliver, Schaefermeycr NOES: None ABSf?N"I': "1'wo ABS"PAIN: None ATTEST: ~ ,~+:,~ r `~. . 1 Jea Lewis, CMC. r C'i Clerk ar..,~,~. 'o~6. ~ ^, + o~ ;>.: ? ~ ~ ,.? . ye' re ' s 4 ~ r. P tl i ~~ ~ ~ . ` ~a i p ~ Y i A. ~ ~... ~; ~+ +r 6$ City of Seward, Alaska Port and Commerce Advisory Board Minutes March 4, 2009 Volume 3, Page 50 • Two items would be on the April PACAB meeting: Discuss the proposed hydro project on Fourth of July Creek and discuss afollow-up economic forum. • Requested ideas that could qualify for economic stimulus money. • Expanded on the Harbor Code and Harbor Tariff revisions and stated the Planning and Zoning Code was being updated and the Municipal Lands Plan. • The City website would be down for a few days. • The Kenai Peninsula Borough Task Force discussing the Kenai Peninsula Borough Ordinance met March 4, 2009 at 6:00 p.m. at the SeaView Community Center. • Requested the Board pull the February 4, 2009 Regular Meeting Minutes from the consent to change the Chamber report to a general statement, such as Chamber Director Laura Cloward gave an update on the status of the business community. • Discussed PACAB Resolution 2009-02 stating in the second WHEREAS clause it stated a public hearing was held, which had not occurred. In response to Butts, Lewis reiterated that 150 letters had been sent out to commercial fisherman who had previously been to the Seward harbor. code. Long reminded the Board that they all had an opportunity to submit ideas for changing the In response to Long, Lewis discussed the tug draft issue and the consideration of relocating the tug. He concluded Anderson was looking into dredging areas of the harbor. Citizens' comments on any subject except those items scheduled for public hearing- None Approval of the Agenda and Consent Agenda Motion (Butts/Schaefermeyer) Approve the Agenda and Consent Agenda By general consensus, the Board removed the February 4, 2009 from the consent agenda. Motion Passed as Amended Unanimous Consent Unfinished Business -None New Business- Resolution 2009-02, Supporting the City Council Approval of the North Harbor Development Recommendations Long asked if anyone from the public wished to'speak in regards to Resolution 2009-02 and no one responded. 6~ City of Seward, Alaska Port and Commerce Advisory Board Minutes March 4, 2009 Volume 3, Page 51 Motion (SchaefermeyerButts) Approver Resolution 2009-02 Lewis interjected Anderson wanted to add under the Floats/Docks section of the North Harbor Development Outline "To investigate the feasibility and economic development value of installing a 5 ton crane near the new 50 ton travel lift dock." Motion (Butts/Oliver) Amend the North Harbor Development Plan Outline by adding a second bullet to the Floats/Docks section to read "To investigate the feasibility and economic development value of installing a 5 ton crane near the new 50 ton travel lift dock." In response to Oliver, Lewis stated this would be operated as a public facility. He discussed requirements on usage of the equipment in greater detail. Long stated these concerns would be discussed at another time. Motion Passed Unanimous Consent Motion (Butts/Oliver) Amend the North Harbor Development Plan Outline Goal by deleting "Complete" and adding "Encourage." Long agreed with this change because nothing was ever complete. Motion Passed Unanimous Consent Butts read her suggested amendment in regards to the boundary description and Terry suggested this amendment also be includes in Resolution 2009-02 Section 2. Motion (Butts/Schaefermeyer) Amend the North Harbor Development Plan Outline PlattingBoundaries section to read "North Harbor Boundaries-Port Avenue on the North; Alaska Railroad Property on the East; Fourth Avenue on the West and Harbor Waters on the South" and Amend Resolution 2009-02 Section 2. to read "The development and management recommendations apply to the area with the following boundaries: Port Avenue on the North, Alaska Railroad Property on the East, Fourth Avenue on the West, and Harbor Waters on the South." ~'~ City of Seward, Alaska Port and Commerce Advisory Board Minutes March 4, 2009 volume 3, Page 52 Motion Passed Unanimous Consent The Board discussed the proposal to move the United Coast Building and consider sheet pile zone for security and or stability. Motion (Butts/Schaefermeyer) Motion Passed Motion (Butts/Oliver) Amend the North Harbor Development Plan Outline Land Use Section to read: • "Economic Development ^ Encourage lease or sale of undeveloped land. ^ Evaluate the best use of unused parcels. o Support opening land for possible parking east of the railroad line and negotiate for a land swap for relocation of the Coast Guard building. ^ Leave access to NE fish cleaning station: ' Unanimous Consent Amend the North Harbor Development Plan Outline Land Use Section by striking "Other?." The Board discussed removing Other? in greater detail. Motion Passed Motion (Butts/Oliver) Unanimous Consent Amend the second to last bullet of the North Harbor Development Plan Outline Land Use Section to read "Discuss lease with Seward Fisheries to explore making the easterly portion of their lot available." The Board discussed the amendment and wanted to propose something different. Motion Failed Motion (SchaefermeyerButts) Unanimous Consent Amend the second to last bullet of the North Harbor Development Plan Outline Land Use Section to read "Discuss with Seward Fisheries the unused development of their lease." ~, City of Seward, Alaska Port and Commerce Advisory Board Minutes March 4, 2009 Volume 3, Page 53 Motion Passed Unanimous Consent In response to Schaefermeyer, Long explained what the last bullet "Consider previous grant requirements/stipulations from previous awards" referred to. Motion (Schaefermeyer/Butts) Amend the North Harbor Development Plan Outlines Land Use Section by deleting "Consider previous grant requirements/ stipulations from previous awards." Motion Passed Unanimous Consent Butts addressed signage, interpretative posting, and pedestrian traffic on Port Avenue with the goal of having people walk on the sidewalk and improve aesthetics. Bailey clarified that the Harbormasters proposed amendment to Floats/Docks was made. The Board discussed aesthetics. Motion (Butts/Oliver) Amend the North Harbor Development Plan Outlines first aesthetics bullet to read "Implement interpretive postings describing the activities in the area." Motion Passed Motion (Schaefermeyer/Oliver) Motion Passed Motion (Butts/Oliver) Motion Passed Motion (SchaefermeyerButts) Unanimous Consent Amend the North Harbor Development Plan Outlines third aesthetics bullet to read "Enhance photo opportunities." Unanimous Consent Amend the North Harbor Development Outlines Funding Strategies to read "Do perform as much pre-engineering in house as possible to control architectural and engineering costs." Unanimous Consent Adopt the North Harbor Development Outline as amended. Motion Passed Unanimous Consent ~~ CiryofSeward, Alaska March 4. 2009 Motion (Schaefermeyer/Oliver) Port and Commerce Advisory Board Minutes Vo[ume 3, Page 54 Amend Resolution 2009-02 second WHEREAS by striking "and a public hearing." Long stated the public had an opportunity to provide input on this and was okay with the amendment. Motion Passed Unanimous Consent Main Motion Passed as Amended Unanimous Consent Set a Work Session to Discuss Passenger Fees Long said the Harbormaster had requested the Board review the Passenger Fees. In response to Schaefermeyer, Lewis stated he would provide back-up material for the Board's review. By general consensus, the Board set a work session to discuss passenger fees on March 18, 2009 at noon. February 4, 2009 Regular Meeting Minutes Long discussed how minutes were only required to reflect action items and record the vote. He continued the February 4, 2009 minutes misinterpreted some of the Chambers comments and it was a requested to have a general statement for the Chamber report. Cloward asked the Board if she could review the minutes prior to the Boards review. Lewis asked if Cloward could provide a list of discussion items for the report. The Board discussed in greater detail how to handle the minutes. Motion (Schaefermeyer/Oliver) Amend the February 4, 2009 Minutes Chamber Report by Laura Cloward Execufive Director to read: "The Chamber Director spoke on the following topics: -Pacific Marine Expo -Wastewater and efforts and response to cruise ship head tax -The National Check Card Registration - Therewould bean Economic Development visit to Seattle at the end of the month- Anticipating questions about transportation and the cruise ship head tax 73 City of Seward, Alaska City Council Minutes April 13 2009 Volume 38, Page CALL TO ORDER The April 13 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY DULED i all their to work ~ speak to im which 'heir goal 9 ways to David Dieckgraeff, thanked the people within the community who supported Metco. He was not pleased with the bid scoring process and thought the city saved $1,600 to take $300,000 out of the community because of lowest bids. He spoke of the point system. Dieckgraeff stated this job was not a very technical one, but had been docked points because Metco had never done streambed work with any of these agencies. He pointed out Metco had all the equipment here in town and thought the city should keep the money local. t~ n,.i:,.,. !'~1.:,.FT...,~. !"lo..,.,,,o lP.i the nla`lna of allegiance to the flag- City of Seward, Alaska City Council Minutes April 13 2009 Volume 38, Page Steve Lemme, knew all the people on the council and observed what a rough, thankess job they had. He did not wish to kick anyone around, but hoped there was a different way to look at the bidding process. He noted how hard it was to make a living in this town. He hoped the council would work to keep this community a viable community and keep the money and people in town. Lemme supported Metco and all the outstanding people and contractors in town. He knew administration followed guidelines, but hoped the city could work together to find a better way to keep the people and dollars in Seward. Steve Leirer, understood the points to measure intangibles in~~ biding process and understood about the lowest bidder. He wanted the council to take 1t onsideration local hire which put money back into the community. Leirer had done busines;th y co and expressed he had a lot of trust working with them and spoke of the skill within °crew Tim McDonald, noted private enterprise in this to vas a°Imost extinct an ~ ght points should be awarded for that. He spoke generally on envf~mentalsues within R rrection Bay. McDonald noted this area was a world class fish an ~ e harbct~~ returning trumpeter swans, spoke that the moose harvest was down 80%, and also spokt~+o~e management of red salmon for maximum yield by the Cook Inlet Aquaculture Association Jerry Fogg, stated children wez h Est important com~ ent of any community, and pointed out the scholarships handed out ~iy ly~et~ ~~ the years.~~ t~ ~ ~«~ ~. Christina Stauffer, wished to add conf~te> on thaecision to not give this phase I levee contract to Metco. She wa ~ la€~ ckgraefftc~id not need a degree while they were assisting people during the floods~uT 'e offere ",the help hydrologist to assist Metco in the streams if they needed it. Stauffer ~ted Sewaruvas not cap ~e of taking care of its own, and should work on keeping the expertise ~ii~Iie uni. w q iii Ken t~when h~t~oved~here from Fairbanks years ago, he was told by locals to go to Metco i `u wanted th""~ ob dond~,~_`it. He later had the opportunity and pleasure to work with this cre ~~ ~ years. He di~ot unstand the point system. Carr said this crew was extremely exneri~ce~ knew their ~~'hipment. He wanted this bid reconsidered. =. Randy St fer, ~ioed the comments made about the integrity of the Metco crew an a so wished Seward couldep the money within the community. He had worked as a project engineer at the Alaska Sealife meter, and thought nobody could do a better job or as competitively priced as Metco. He reminded council of the poor job aloes-bid outside contractor did on the building of the Alaska Sealife Center. Stauffer reiterated what great concrete work Metco did. Ron Long, found Metco to be tough as a competitor. He thought changes in the code had made it more subjective, which opened up this field to favor better writers than better doers, and did not necessarily indicate the quality of a contractor's work. Long thought the city needed to find a way to add its own experience and knowledge about local companies into the procurement section of the code. ~J City of Seward, Alaska City Council Minutes Apri113 2009 Volume 38, Page Larry Harmon, acknowledged that everyone in town knew Metco and their great reputation, but he thought the bid process needed some work. He knew first hand of Metco's expertise and spoke about a recent bid that was lost because of not putting the time needed into the paperwork. Darryl Schaefermeyer, had experience, history and background, but pointed out this community was isolated and noted the town would be in a hard place if it did not count on local expertise. He stated Seward would be a different place today if not for local contractors like Metco, and thought the city should find a way to factor that into the bid process. Sc eyer wanted to cultivate and maintain the capability here in Seward that had the resource ~ ailab e. He cautioned the council to support the local infrastructure and capability because tla, would need assistance from them again. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson/Keil) Motion Passed The following was added to the agenda: Two reports by Vice-Mayor Dunham The clerk read the following The March 23, 2009 Council Special Mee Highway City and C _ ent Agenda Capital Budget. Minutes And The March 27, 2009 City A Grant In The Amount Of $1,787.40 From The Alaska 'hird._Quarter ASTEP Driving Under The Influence Of (DUI) t~iiuriatine Funds. ATIONS AND REPORTS Citizen Po1~Academy Participants; Carol Griswold, Jerry Fogg, Kiia Hubbard, Lawrence Perri, Kristopher Peck, and Hilda Lespron were recognized by Police Chief Tom Clemons. A Proclamation Was Read For Sexual Assault Awareness Month. Dorothy Locke Was Recognized As The Spring Creek Correctional Center Employee Of The Year. s ~) City of Seward, Alaska City Council Minutes Apri113 2009 Volume 38, Page Borough Assembly Report. Borough Assembly Representative Ron Long stated finally after nine public hearings, the borough adopted a flood hazard district plan for areas of known historical flooding outside the currently mapped National Flood Insurance program areas outside the city limits that required a development permit for either constructing a primary structure that required a septic system, fuel oil tank or active in-stream work. There was a lot of public input that resulted in the final outcome of the plan. Long stated the Assembly also adopted the STIP plan projects. Milepost 18-25 was the first on that list, along with the Ptarmigan, Falls and Trail River bridges. He stated the budget was due to be introduced in Seward at the Mary 5, 2009 Borough Assembly meeting and hoped the public would be involved in the formal aspp Tythat process. He stated the Flood Service Task Force would be looking at flood control re ''° Lions; and would meet in Cooper Landing next week. In response to questions by Valdatta, Long stated compan' ployees' ,' .off from the ash were being compensated. City Manager's Report. Acting City Manageirsten ~?esel stated ther - "ere no recent city expenditures greater than $10,000 to report. Lesion _'~ wellness-for-all group was postponed until the April 27, 2009 meeting. ~~~' Road Closure Update. The city was 24-27, 2009 for the installation of they }„__ businesses and other community members, commenting on this weekend closure, the vehicles over 30,000 lbs through Milepost aggressively working with ~~ropc restrictions during the ins. ction date, the Sewarc~'~h ~ would be closed on April bridges. Bas ,, on recommendations from ~ 'en dates wc~ild not change. In the process of v ~- ~ection dates restricting commercial fe citand the Chamber of Commerce were :ernate schedule for the commercial vehicle Harbor/SMIC~ripda ~Crowl~ ~'axg^~-F~rge would be having an event in the Seward Harbor on the afternoon o ay 9, 2~to christen two new tugs that would be home-ported elsewhere in Alaska. Sewa °~ _ enm~`ay Vueekend would occur May 15-17, 2009. Several sponsors including , ~enai For ' acht ~' ~nd Sailing Inc. were looking to sponsor a street dance on Saturd ~ ping with a ban d b_, garden to benefit the Mariner's Memorial non-profit. The 44' vessel ilv~ ullet sank in ie Seward Harbor on April 8, 2009 on H float. Stormchasers was contracted to moat the vesl. No one was injured, and the cause of the sinking remains unknown at this time. ~ ~, The Eleetri<•~~partment had received a Thumper, which would be used to find faults in the transmission lines safely in an accurate and quick manner. This would help the City save time and money when searching for blackouts. The Voice-Over-IP transition occurred on April 6, 2009 and 99% of the City phones were up and running. The city was still trying to make the Internet as secure as possible and this was affecting the City's ability to function at its normal level. l~ Ciry of Seward, Alaska City Council Minutes April l3 2009 Volume 38, Page Community Development. - A floodplain variance request was submitted to the City for construction of a hanger at the airport. The applicant was looking to allow modification to our requirements for building in a flood hazard zone. - A floodplain development permit was applied for the Sheffler Creek/Dairy Hill culvert replacement and the `fish ditch' improvements. The City had been working with the Kenai Watershed Forum on these proposed projects and a stimulus grant application. - The Port and Commerce Advisory Board reviewed and `' poned a resolution in support of the Polar Consult 4`h of July Creek Hydro "~~, t The Board asked for additional information from the company prior to mang a~ecommendations. Public Works. - On Apri19, 2009, ADEC inspected the ewater eatment Facil' sand the City had received a clean bill of health (AI ~~pow h acy and the EPA oversight only). ~ , - The department was preparing project docu zits for the Fish Ditch project and Lowell Creek Bridge Refurbishment project and ~ e `~'ted to go to bid in the next few weeks. ~~ - The department was preparm~t~uall_ of City ehicle tires from the winter to ~, -~ summer tires. ~ _: City Attorney's Re ~ ' eryl Bro~"~~ig had given a formal written report at the last meeting, but she wanted t~ eak abo~governm ~ ntractual requirements. She noted there were significant differences `~ een priv ~ and publi government procurement. She stated the city must use competitive`proc ` s. ,~ ~ ~~ity had the ability to use low competitive bid with the outcome based solely on ~`~ ' ~~ or it could do a request for proposal process with price and other factors that m '~ b'~'d~rrt~hed w t~~s set~out in the proposal. Responsible proposers were evaluated with a set oint system`~reat ev'~ie fair and equally. Brooking stressed, based on the Alaska Constit ~ ,the city could ttt~t disitininate or reject on residency. She reported the legislature had tried t put hiring prefere~s that were struck down as invalid by the courts as violations of federal laws. ~, Keil questior~tl- ether notification of the criteria was given as stated in the city co e. Smith cautioned that this process must be fair to everyone and noted the city must be able to defend their actions in court. PACAB Quarterly Report. Ron Long stated this report was for 2009 and that PACAB still had a vacancy on the board. Some of the items addressed were: ahydro-electric project by Polar Consult, a report on fish habitat by Matt Gray of the Resurrection Bay Conservation Alliance, how to proceed with the economic forum in May, and harbor code revisions. He said they would be discussing enterprise funds, the harbor and SMIC budgets, re-writing and updating the management ~~ City of Seward, Alaska City Council Minutes April 13 2009 Volume 38, Page plan this fall, and addressing city policies on leasing land vs. purchasing land. Long also stated the city needed to step up the pace and decide the level of participation to support the research vessel (AARV) and how to make sure it was homeported in Seward. Other Reports, Special Presentations A Parking Meter Update was given by Parks and Recreation Director Karin Sturdy, to purchase two LUKE pay stations from Digital Payment Technologies. The cost, was about $24,000 to purchase them, which did not include training, installation and shipping A Report on the Capital Budget and the Railway Utilities .E iven by Vice-Mayor Dunham. ~~ ~>. PUBLIC HEARINGS ~P Ordinance 2009-003, Amending The Seward City C~t~ To Peit The Use O rearms And Bows In Designated Areas In Accordance Wi~~ate ~ ~ ements, And To Amend Ordinances Relating To Trapping And Use Of VV~eapo~~~thin The City. Motion (Bardarson/Kellar) Enact OrdhnL~nc~l1U9-11113 ,_ Ak Police Chief Tom Clemons staff' h~~ rice ed lots o~~'mails about this ordinance and felt they were mostly misunderstandings He Wished t ''os"~ e this ordinance until he could hold a couple of work sessions and possibly adjust tlTrc~'ance - ~~ ~` ~~ Notice of the public heartr~emgpo~ed and pusl~d as required bylaw was noted and the public ,~ . hearing was opened. ,,~, Christina auffer,ervous about people discharging firearms within city limits and admitted she ~` P eisread She ~iad absolute faith with police dealing with bear problems, but no fait'the genera~bhc w " ° cling with firearms. She did not want hunting or trapping permitt ~~ Mr. Marathon Sheas afraid hikers would be mistaken for a bear and thought allows tli ° . ould be irrest~sible. Sharyl Se~~alsp~ not want hunting or trapping on Mt. Marathon. She was glad the Chief would educat~¢~~iyone and have a work session on this topic. She thought anyone that needed to hunt or tr~hould go out of town and not be within the city limits. She urged the public to purchase the bear containers. Carol Griswold, had emailed the council and loved hiking within Seward city limits. She felt this ordinance was pushing hunting and trapping into the recreation of Seward, and she did not want to see people get shot or dogs injured in traps. Griswold noted there was literally millions of acres for people to hunt and trap and did not want any of it within city limits. She wished to keep things peaceful and safe within the community. t ~~ Ciry of Seward, Alaska City Council Minutes Apri113 2009 Volume 38, Page Tim McDonald, agreed with a subsistence lifestyle, but lived on the high tide line of the beach and watches unsafe duck hunters. He pointed out it was legal to hunt outside the city limits and was not in support of hunting and trapping within the city limits. Many people enjoyed the outdoors and birding. He mentioned the hunter who gut-shot the bear last year within the city limits and traumatized the neighborhood. McDonald stated some of the duck hunter's bullets rain down on his shop. John French, echoed tightening up discharging of weapons within the city limits, but was opposed to opening up hunting or trapping within the city limits. He had b the crossfires of hunters before and thought there were many legal areas to hunt, and thoug~~~'~ve owed it to ourselves, children and visitors to keep parts of the city safe from hunting. .._~• . _. Randy Stauffer, agreed with all statements spoken toni side of the map. He was concerned with the lack of enfor mentioned high powered rifles could be used. He thought t1 e within the city limits. Stauffer spoke of the incident lasT~~ar to from shooting a bear while children were present ~~~ had qu ns on the western laced in t rdil~nce and should be no dischweapons key the man with hunting bow Matt Gray, again mentioned the program with the Re ection Bay Conservation Alliance ~_ and the bear proof cans available. He noted some of the city st+ needed to be converted. Larry Lewis of AF&G was contacted ar~~hasized enforce of people not taking care of their trash. Gray stated the alleyways always~~a~ ~` ~Qwn theni~nd it would make a difference if people would purchase these cans and control''heir ~g~~e. Sandie Roach, coul e=~v e the bor` ~~i, city and school could be leaders for use of the new dumpsters. She tha~Pohce ief Tom Cans for the work session suggestion. She said the city comprehensive spoke of trve recreate within the community which she did not think meant hunting and u5'ig ~s=.~ ~~ ~ ~~ ~H ,.r ~~~ All people wt g ~ s~k were and end the public hearing was close . killed by firearms and Kellar wanted to see the permittee Dunham opp~ad to operating weapons within the city limits. He stated a person was shot on Mt. Main years ago, being the reason it was closed today. He thought people who trapped dome~~animals within the city should have a permit to trap them. Valdatta wanted judgement used for defense of property from bears within the city limits. Motion (Bardarson/Keil) Postpone Indefinitely Motion Passed Unanimous ci City of Seward, Alaska City Council Minutes April 13 2009 Volume 38, Page NEW BUSINESS Resolution 2009-026, Adopting A Weapons Discharge And Trapping Area Map, Identifying And Designating The Portions Of The City Where Trapping, The Use Of Firearms, And Archery Equipment Will Be Allowed By Permit. Motion (Bardarson/Dunham) Approve Resolution 2009-026 Motion (Dunham/Bardarson) Motion Passed Postpone Unanimous Resolution 2009-027, Authorizing The Execution Of An °_,quipme Lease/Purchase Agreement By And Between The City Of Seward And I tl Asset a nt, Inc., Providing For Related Matters, And Appropriating Fu1~~T'~ r~ ~.ai; Motion (KeiUBardarson) ~ove ~tion 2009-027 ~~~~ Acting City Manager Kirsten Vesel stated council ~ ouslya~proved the purchase of a triple combination pumper fire truck and a light rescue appa ,~ h"owing a competitive bid process. This resolution authorized the ip~ to pay for the egt~nent. Motion Passed ~ °~nus Resolution 2009-028, Esta ~~i'ouncil ance And Support For The City Of Seward's Priorities Prepared For~~9 The nerican RP~ery And Reinvestment Act. Motion (KeiUSmith) ~~ , ~ ~ j ~~ ~ ~~ _` ~ `~ Approved Resolution 2009-028 Vesel were a ~ety 4f projects submitted forward for potential stimulus money. This reso ~ ~n showed cil s - ~ as the city applied for them. Vesel informed this was a renericliand not all procs the ~ ~y would apply for. Keil as~the city ay for money to finish a prof ect, not just enough to start a project. She wanted everythirig~~cor ack to council. ~~;, Vesel state~me projects scratched were not shovel ready but still wanted a broad list to apply for everything. She asked for council support of this list in concept and as a template to encompass all projects that stimulus money could possibly be found for. Motion Passed Unanimous OTHER NEW BUSINESS Council appointed Council member Jean Bardarson to be the council liaison for the library museum 81 City of Seward, Alaska City Council Minutes Apri113 2009 Volume 38, Page project through the end of May, at which time, Council member Tom Smith would take over as the council liaison for this project after his vacation. INFORMATIONAL ITEMS AND REPORTS (No action required City January 2009 Financials. COUNCIL COMMENTS Kellar appreciated everyone coming out and getting involved witow and where the city should be harvesting wildlife. ~~~`,t~ Bardarson encouraged anyone to apply for seats on the~v~ T us boaz d commissions. Dunham stated the postmaster made history by ing an open house. rovided a powerpoint and refreshments, spoke on the ability to e your ~m stamps, and w you could contract with ebay for cheaper stamps on the web. H "' d out t~ uaculture Association moved to take over the harvest of reds, and since they had never m~~F~aewazd, wanted them to be invited to hold a meeting here in Seward. Dunham reported the sic~~~lks were a mess and thought the council needed to improve them. He s oke on the sign ord~itic hanging slip assignment procedures and how the city could keep ~ off 4`" Avenue wt ~ e downtown cans. He was not sure why Waste Management wasn't dum,~ii~g~ll~~!no~e ofteria"He suggested the council be the forum leaders for the economic forum m Maya ~"~~ ~~. Valdatta liked the d ~ °~n Ancho`e for school sports and thought Seward could use one. He thought a new scboard w ld make al present for it, donated by the community and borough. .~„~ ,. ~! .. ~;_ Smith ward to be c ~,,_ ~ e with the bidding procurement process to help local peop e. and thought the work session with SMIC feasibility was CITIZENS' Dieckgraeff ,~ ght the city should have the experts doing the bids. He thought professional specialists should '~" brought in instead of the two staff professionals and the engineer. He apologized to the finance director and appreciated the work the council did. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS Keil thought it a good idea to have the expert hydrologist sit on those panels. She felt Nelson could have a bias because of the Kenai fine. She was not questioning motivation, but wanted other experts within the community used. She had worked 20 yeazs on domestic violence awazeness and noted many experts right here within this community. ~~ City of Seward, Alaska Ciry Council Minutes April l3 2009 Volume 38, Page Kellar wanted the children to come back to Seward to live, and wanted to support the local businesses. Valdatta did not think the engineer should be a voting member a$er designing a project. ADJOURNMENT Jean L City C (City ~ City of Seward, Alaska City Council Minutes April l3 2009 Volume 38, Page CALL TO ORDER The April 13, 2009 special meeting of the Seward City Council was called to order at 10:05 p.m. by Mayor Clark Corbridge. OPENING CEREMONY DULED Agenda Resolution 2009-030, Supporting Seward Police Department "Recovery Act: Office Of Justice Programs: Office Of Juvenile Justice And Delinquency Prevention FY09 National Youth Mentoring Programs: Application In The Amount Of $20,000. Resolution 2009-031, Supporting The Seward Police Department's "Recovery Act: Assistance To Rural Law Enforcement To Combat Crime And Drugs: Category I: Combating Rural ~~ D..1:..0 !'l,;of Tnm !'`lamnnc IPlI the n1P~lOP of A~~P.OIAIICe r(1 the flag. City of Seward, Alaska City Council Minutes April 13 2009 Volume 38, Page Crime" Application In The Amount Of $75,000 For Traffic Radar Enforcement Equipment And Digital Dash Cameras. Resolution 2009-032, Supporting The Seward Police Department's "Recovery Act: Assistance To Rural Law Enforcement To Combat Crime And Drugs: Category IV: Facilitating Rural Justice Information Sharing" Application In The Amount Of $170,000 For The Purchase Of A Digital Storage Unit, Programming, Networking, And Mobile Data Terminals. PUBLIC HEARINGS Resolution 2009-021, Authorizing The City Manager To Pra Lots AW, AV, AU, MM, DA, DB, DC, DE, DF, DG, QQ, And Acres Subdivision In Seward, Alaska For $429,000.00, And North Forest Acres Levee/Road Project. Acting City Manager Kristin Erchinger state e fish ar in-water work from May 15 to July 15. In order to gets water permit in hand. Erchinger informed these resolutions were~i~~ r ~«. . nine parcels with restrictive covenants in place, which was the ti fish and habitat. Another timeframe was the 30-day waiting p-e~ which left little time to negotiate and t these windows Erchinger declared appraisals were com~jete b _am & A~ was also hired by HDR, to ensure the city h~ sohd~u~~d acquisitions, in case the next step of eminent §na~vas n~ded. __. ~; s The Acquisition Of And 4 Of Forest Funds. For The habitat permits y authorized ~" ay 15, the city must have the ~sitive, and that the city must own ration put on the project to offset d ~;r any property purchase, purchase and construction. ~ociates, and a technical advisor was in compliance for the land Erchinger stated city word be payi ' ~ e full value for some parcels and give a ten percent signing bonus of postp e the prof or another year. The negotiated price was $429,000. She state ~ o co ~ k~~o.ct of land acquisitions there were some parcels that did not have final ~ ~raisals ~°nother land acquisition was set for a special meeting tomorrow, with restrictiv~"o` ~ ~ tats on all aforementioned properties awaiting approval at the end ofthose meetings trrow. r ~~ Notice f th blic hearing ~ng posted and published as required by law was noted and the public hearing was op~d. No off.appeared to address the Council and the public hearing was closed. Motion (Smith/Ban) Approve Resolution 2009-021 Motion Passed Unanimous RECESS Motion to Recess (Bardarson/Keil) Council recessed this special meeting until tomorrow, Tuesday, April 14, 2009 at S: 00 p.m. or as soon thereafter the scheduled Special Meeting on that day was adjourned, because addressing the ~~ City of Seward, Alaska City Council Minutes April 13, 2009 Volume 38, Page restrictive covenants (Resolution 2009-022) must be approved after an agenda item on that already scheduled Special Meeting. The meeting was recessed at 10:26 p.m. n~R~ Jean Lc - City C] (City S (`lark (`nrhrirlaP ~~ Ciry of Seward, Alaska City Council Minutes aril 14 2009 Volume 38, Page CALL TO ORDER The April 14, 2009 special meeting of the Seward City Council was called to order at 5:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY Police Chief Tom Clemons led the pledge of allegiance to the flag. ROLL CALL There were present: Clark Corbridge presiding and Marianna Bob Valdatta Willard Betsy Kellar Jean -_= d comprising a quorum of the Council; and Kristin Erchinger, Acting City Manager Jean Lewis, City Clerk Cheryl Brooking, City A ,telephonic) ABSENT -Tom Smith CITIZENS' COMME FOR PUBLIC HEARI David Dieck a request for propo 1. points were art~"~~' in Oberg, ; just w to ~ 'ntroduce `'>, APPROVAL O>?~E Motion (Bardarson~i Motion Passed EXCEPT THOSE ITEMS SCHEDULED ae~ ~ 11 ~)detis contract go to the lowest qualified bidder and not He th~ t the code should specify who determined the bids and how the wante ,e bidding process looked at. contractor awarded the RFP on the Japp Creek project and Approval of Agenda Unanimous PUBLIC HEARINGS Resolution 2009-023, Authorizing the City Manager to Proceed with The Acquisition of Lots SS and RR of Forest Acres Subdivision in Seward, Alaska, for $75,000, for the North Forest Acres Levee/Road Project, and Appropriating Funds. ~~ Ciry of Seward, Alaska Ciry Council Minutes April 14 2009 Volume 38, Page Motion (Keil/Bardarson) Approve Resolution 2009-023 Acting City Manager Kristin Erchinger stated this was the 2nd property acquisition of property for the North Forest Acres Subdivision. These properties, owned by the Baileys, were appraised and came in lower than the Kenai Peninsula Borough assessed value, which was not how the other properties came in. The city thought it was only fair to offer the assessed value since the owners had been paying taxes on that value. Both parcels were to be purchased for $75,000. Both parcels were required for permitting purposes. ~~fi ~' In response to questions, Erchinger stated the 10% signing b. .was not offered to the owners in this case, since the city was purchasing the property for t~ sse ' value instead of the appraised price. The assessed value was a higher figure than if the{,y took th = raised value and n.~_ added a 10% signing bonus. ~~~ 5 L Jai ~~~b~' Notice of the public hearing being posted and pubbshed~equired~ by law was notez~nd the public hearing was opened. No one appeared to address the until ae public hearing was closed. Motion Passed NEW BUSINESS Resolution 2009-024, Approving A Contr~~`t Be =~ "~ City Of Seward And Peninsula Construction, Inc. For The Japp Creek Reldca~ n Pr+~ect In An Amount Not To Exceed $305,365 Plus A 10% Conn And Appriating Funds. ~~~• ~~ ~~; Motion (Bardarson/D~ €am) Approve Resolution 2009-024 ~~2 ~~ ~_ ~.. oil io ~ ~~ ~ ~. Erchinger a dressed t~Y~~x#eshon that arose during yesterdays meeting about was the council informed of "~ ~ its specific nteria to be used. She informed the clerk's office had researched d found on ch 9, ~~the city manager had notified the council of this RFP for phase I1 a Japp Creek pr ct, bfki did not go into specific criteria details. She summarized the city Rl~u' "~ ^ 3/26/09`t RFP wasued and published in three newspapers with packets available. ^ 4/1/09 a p id c erence was held. ^ Project was ~ned as the first phase of the North Forest Acres levee road project which involved re-rs`iiting 900 feet of creek. Clearing, grubbing vegetation to ensure its protection for later use in the project. Excavate 200 cubic yards of material, and provide a temporary access for equipment to the site. A temporary bridge was required by the permitting agencies to protect the surrounding environment. The construction of a new streambank must be in accordance with requirements laid out in the fish habitat permit. Other requirements were laid out in the fish habitat permit and the Army Corps of Engineers permit. ^ Copies of both permits were provided at the pre-bid conference. The project engineer Bill Nelson was present and described the project and plans. ~~ City of Seward, Alaska Ciry Council Minutes April 14 2009 Volume 38, Page ^ All attendees at the 4/ 1 /09 pre-bid conference were informed this was a request for proposal (RFP) and not a bid, and would be scored on the criteria in the packets. ^ It was specifically informed of the importance to focus on the criteria for both the habitat and COE permits. These stream requirements were described in detail. ^ All questions were responded to in writing to all bidders in the form of an addendum. ^ The criteria was listed in both the addendum and the proposal. ^ Seven proposals were received. All prices were opened in public and bidders notified. ^ Metco was the lowest bidder. Peninsula Construction was 3rd lowest. ^ The scoring team then met. ~~~ (Scoring criteria was presented in writing to council. Erchinger descr~~,t~ze pages evaluated and explained their ratings and the specific requirements and procedur~~equt ~~ ..by the agencies.) require instead project. past ex Mayor related Courts criteria materi and fai notify council of the sp~ic details ~ the =:r- ~~.~ Keil pomted~out if co had the choice given to them as mandatorily stated in the code, council would~aI~taie opp ity to ask for a lowest bid instead of an RFP. ~_ ~inger answered Yat alth~i`ugh it was true council could have asked for this particular RFP to go to 1" id instead, th were still the construction requirements placed on the city by the permitting agen ~~s-~~that necessitated an RFP, and reiterated that the construction requirements of the fish habitat permluent tc~~ proposers. Valdatta st `it was important to follow the streambank requirements for watersheds and noted any adverse decisions would set back this project another year. Dunham noted the city could lose a year of construction and lose the permits. Corbridge felt torn but noted administration didn't usually get detailed criteria information to the council ahead of time before putting out an RFP. He said the council needed to set policy in these cases and time constraints must be kept in mind. He stressed a wrong decision could jeopardize the permits altogether and not only put the project off for another year. In response to questions, Erchinger stated the cont ~ aaded mu llo specific ments by the permitting agencies, which was the on t is had to go to process of a strictly low bid process. Two contractors ~ the sp fic experiences eded for this All top three bidders had excellent references; ut the ~`o stood out because of their perience and abilities to work with the permitinga~~s involved with this project. ~: wy. City Attorney Cheryl Brooking a _ eared telephomcall}~ ~ ~ ~"r questions. In response to Corbridge, Brooking researched ld not find a de ve answer on the questions to SCC 6.10.310(b). In reviewiiig ~ ~ ,umstanceof competitive procedures, the had basically divided it into two categ~es, ma~~ria ; °~mmaterial. She stated the detailed ~~ 4..- was provided to all potential proposers;°~o the Felt thcourt would look at whether this was al, whether there was s~~~! compli~rt, ;and whether all proposers were treated equally rly. Brooking rise ' ~ pit woul'`be up to the. ~uncil to decide how substantive the failure to criteriaforehand was. ss City of Seward, Alaska Ciry Council Minutes April 14 2009 Volume 38, Page Kellar wanted the council to pay attention to the code and thought the right thing to do was re-do the criteria and bidding. Dunham admonished that local preference was not a legal reason to reject this bid and cautioned the council on this. He cited previous remarks made by the City Attorney Cheryl Brooking that local preference was against the law and against the Constitution. He felt the process was done correctly, even though council felt it was a bit left out of the loop. Keil did not disparage any ofthe contractors, but advocated for folio '=~ e code. She felt the RFP could be let again and did not think construction projects should `to P. Valdatta thought the council was making a mountain of a ehi~l~ e reminded of hard lessons learned for accepting low bid. ~ ~ _ Council recessed at 6:30 p.m. Council resumed at 6:35 p.m. Brooking again appeared telephonically, and answ at bids could be rejected as long as there was a good reason for it. She offered that bidders an oposers may be interested in the reasons because of the time and effort taken to put forth a pr sa~~She again cautioned that residency of any particular bidder or pror, ~u~as not a relevant f~r. Keil made a motion to reject this RFP an2'1~go to Mayor Corbridge ruled this motion out of oer~lq Keil withdrew the motion. ~~ Bardarson note}~recedent ~r~as set the code. Motion COUNCIL .e the code was not adhered to. germane and a negative motion. ofnon-compliance with the wording in Yes: Dunham, Bardarson, Valdatta, Corbridge No: Keil, Kellar Keil wanted bequest for proposal procedure clarified for the future. She had heard positive comments , the public about both Metco and Peninsula Construction. Dunham and Bardarson hoped council had learned a lesson. CITIZENS' COMMENTS David Dieckgraeff, stated Marty Oberg was a great contractor. He still wanted a work session called to see what other places were doing for bid procedures. He thought the lowest bidder ~~ City of Seward, Alaska City Council Minutes April 14 2009 Volume 38, Page should have the chance to do the project. He noted Metco had always been fair on their prices. Dieckgraeffthanked the council for all their hard work. Tom Gillespie, stated with the time constraints and the circumstances, that he felt council did the right thing. He commented it would all work out. Tom Tougas, thought the number one problem for Seward was the declining population and the tough task was how to figure out and develop the expertise within the coin unity, to grow the economy and not export our money to Soldotna. He was worried where ou~~a , ,would work and how the city could assist with building the private sector. Tougasporte' how declining populations affected the local schools. He wished council could findw ~ to have local bidders fulfill the contracts and circulate the money within the town. ~~ ~' COUNCIL AND ADMINISTRATION RESPONSE TO Dunham stated this was a miserable decision l agencies had held the city hostage. He reported takirt.`~[ to Anchorage over the years, meeting with the Corps o Department of Transportation and Fish & Wildlife agencif made this an absolute miserable project and have caused all put in. ~~ M y,, - ~ ~f Valdatta appreciated the gentlema Peninsula Construction and their crew to the Keil had a empathy for comn same ke. He felie permitting shington D.C., a dozen trips National Marine Fisheries, n stated these agencies had was time to see the levee two contractors and welcomed by the economy, so she had a lot of for what they provided throughout this process. ~:~ Er ~'~ ger apolo d on b " f of herself and the administration, since she felt she may have dr~ ~° ,-d the ball that p ` cout'1 in the box they were in. She agreed with solutions and the need t e~ ~~ hing possib -,`o keep Seward's people employed here. She felt heads could be put together to try fix proceproblems. Erchinger stated the city could not have asked for a more superb group of b ers f©ts project. Corbridge sight the council had learned a lot and should be the body giving direction. He was sure a better job in that regards, would be done in the future. ~~ City of Seward, Alaska City Council Minutes Apri[ !4 2009 Volume 38, Page ADJOURNMENT The meeting was adjourned at 7:00 p.m. Jean Lewis, CMC Clty Cl (Crty S Clark Corbridge Mavnr 92 City of Seward, Alaska City Council Minutes April 14 2009 Volume 38, Page CALL TO ORDER The recessed April 13, 2009 special meeting of the Seward City Council was again called to order by Mayor Clark Corbridge on Tuesday, April 14, 2009 at 7:03 p.m. ROLL CALL There were present: Clark Corbridge presiding and Bob Valdatta Marianna Keil Willard Dunham Jean Bardarson Absent: Tom Smith, Betsy Kellar comprising a quorum of the Council; and Kristin Erchinger, Acting City Manager Jean Lewis, City Clerk Police Chief Tom Clemons This special meeting resumed at 7:03 p.m. Resolution 2009-022, Authorizing The City.. Manager To Execute And Record Restrictive Covenants On Lots DB, DC, DE, DF, I)G, SS, ; RR, QQ, And Tract 4 Forest Acres Subdivision, Seward Recording District, Third Judicial District, State Of Alaska, For The North Forest Acres Levee/Road Project. Motion (Bardarson/Dunham) Approve Resolution 2009-022 Acting City Manager Kristin Erchinger stated Alaska Dept. of Fish & Game would not accept the project unless a conservation easement was put on these properties. The Army Corps of Engineers thought the unknown cost was too much for the city so they negotiated to do restrictive covenants instead. Putting restrictive covenants on property that won't expire was bad public policy, however, the city agreed to restrictive covenants in perpetuity. Erchinger stated once the long term impact was seen, this could be revisited down the road if the Army Corps of Engineers felt these properties were not as valuable for mitigation. She reiterated the city was binding these properties in perpetuity as restrictive covenants. She had to recommend something that in her mind was `temble public policy to move this project along. Corbridge wanted council to know adoption of this now "in perpetuity" meant for ever and ever and ever. Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. No one appeared to address the Council and the public hearing was closed. Motion Passed Unanimous .'~ City of Seward, Alaska City Council Minutes April 14 2009 Volume 38, Page Resolution 2009-029, Supporting The Seward Police Department's "Recovery Act: Assistance To Rural Law Enforcement To Combat Crime And Drugs: Category I: Combating Rural Crime" Application In The Amount Of $300,000. Motion (Keil/Bardarson) Approve Resolution 2009-029 Erchinger stated the cameras installed in the community so far had been successful in thwarting crime. Police Chief Tom Clemons stated since the boat harbor cameras were put in place, the crimes have been zero. They had been more of a deterrent than effective surveillance. Clemons hoped to finish the camera project to protect the water towers and other infrastructure that wasn't patrolled heavily. He stated their prime responsibility was to deter crime and,. were used as a piece of evidence of a crime when needed. These areas had a vulnerability assessment conducted and were found to need effective surveillance. Clemons stated these: cameras also helped monitor officer safety at times, and that the businesses seemed to appreciate the ability to gather evidence to prove probable cause in court cases when they needed them. Keil was opposed to having cameras on all the :streets. She thought tot lots, infrastructure, water tanks would be okay., She wanted to know where the cameras were and wanted signage so people were aware they ,were being watched. "She had asked that this be pulled from the consent agenda so the public would know where they were being put in. Motion Passed '' Unanimous COUNCIL COMMENTS Dunham had attended a meeting at:noon with the State Senators and Representatives, and he was told the: city needed to comment on whether the city approved or disapproved of OCS development by the first of September to assist the legislature to establish an active energy policy within the state. Bardarson informed; a survey for the museum library would be conducted and urged everyone to take;the time to give feedback. CITIZENS' COMMENTS -None COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS -None 94 City of Seward, Alaska Ciry Council Minutes Apri[ 14 2009 Volume 38, Page ADJOURNMENT The meeting was adjourned at 7:37 p.m. Jean Lewis City Clerk Clark Corbridge Mayor (City Seal) 95 City of Seward, Alaska City Council Minutes Volume 38, Page 9 6' City of Seward, Alaska Ciry Council Minutes Volume 38, Page April 27 2009 CALL TO ORDER The April 27 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY Police Lieutenant Butch Tiner led the pledge of allegiance to ROLL CALL There were present: Willard Dunham presiding and Jean Bardarson Marianna Keil comprising a quorum of the Council; and Phillip Oates, City Mai Jean Lewis, City Clerk Johanna Dollerhide, A ABSENT -Tom CITIZENS' C FOR PUBLIC EXCEPT THOSE ITEMS SCHEDULED ~x~ f the She ~'~Senior Center Board. The board had recently center. She stated the center's mission statement and core „food service department by renovation, quality employment ~~tinuation of endowment funds and government partners. _~ ~`he city and listed the benefits the center received due tot e ~ ° , ~= Howard n,~ ervation director for the Alaska SeaLife Center and board director for Kenai Watershed Fo '"oke in support of resolution 2009-037 and passed out some informational documents to council.~'~~erren stated the forum had been able to contribute and hoped to further contribute to the watersheds of the Seward area. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (KeiUKellar) Approval of Agenda and Consent Agenda Motion Passed Unanimous g~ City of Seward, Alaska City Council Minutes A rtl 27 2009 Volume 38, Page The clerk read the following approved consent agenda items: Resolution 2009-037, Supporting The Efforts Of The Kenai Watershed Forum To Secure Financial Support, Both Private And Public, For The Renovation Of The House And Adjacent Property At The Soldotna Creek Park Leased To The Kenai Watershed Forum And Owned By The City Of Soldotna. Willard Dunham And John Foutz Were Appointed To The Task Force. SPECIAL ORDERS, PRESENTATIONS AND Proclamations and Awards A Proclamation was read for Super A proclamation was read for Terry's A proclamation was read A proclamation was read for Utility Board ,~ ~t atton ~` ~-~ Great Turtle Ship Festival At given on their 2012 International Expo. iderson For Excellent Leadership And And Zoning Commission. vote Iust~ et the tte would occ ~ ay 5 The meeting ~ _' b~ procedures for hi Seward the budget v and the main meeting ~ rt. Borough Assembly Representative Ron Long stated the >pratdban ordinance appropriating the addition of $260,000 for the Mased sal enrollment and this was the borough's match. It was a 5-4 sula Borough to live up to the commitment. A similar resolution atch state funding on education, and Long encouraged public input. ard. Other item of note was the approval of an ordinance to revise ~iiissing the Borough Attorney. Also at the May 5, 2009 meeting in introduced. The work sessions were scheduled to start at 11:00 a.m. at 7:00 p.m. City Manager's Report. City Manager Phillip Oates introduced Jay Hoag, the new Field Engineer for the Electric Department. Oates stated there were no expenditures between $10,000 and $50,000 to report. On Apri118, 2009 the Seward Police Department received a 911 call stating several juveniles were in a parking lot puncturing vehicle tires. The Seward Police Department received a total of 32 vehicles reported to have been damaged by 73 slashed tires on April 19, 2009 and three juveniles were apprehended and charged. ~~ City of Seward, Alaska City Council Minutes April 27 2009 Volume 38, Page ^ Upcoming Facility Event Applications: The Seward CROP Walk would be held on Sunday, May 3, 2009 from 2-3 p.m., a Community Military Appreciation Event on Saturday, May 16, 2009 from 10 a.m. to 4 p.m., and Crowley Tug and Barge was hosting an event on May 9, 2009 in the Harbor and at the Railroad's cruise ship building to christen two new tugs. ^ Legislative Session Update. The Legislature ultimately took approximately $250 million from the Governor's Capital Budget and did not add any significant a nations from individual legislators to the budget. Most discretionary funding came „ - ~ e Cruise Ship Head Tax money. There were many creative appropriations for this:; ~ .Therefore, the city would probably see litigation from the industry this next year t v ~ e types of appropriations F= that appeared contrary to regulations and law. The city Id prob lso see a large number of vetoes from the Governor for these appropriati` ,,, but Sewazd's~ rojects had a good chance of surviving the veto process. Also, it like Homer receive illion for a path q, , on the spit for the cruise ship passengers ou 4,, ~ Cruise Sh(~ Excise Tax Oates gave a brief summary of appropriations impacting rd ~' --$60M Revenue Sharing (for a1J Alaskan --$167K Bus Transportation f' ~ ,Sl Appropriation in the Capital Bu ~~ E --$4.SM Dredging of the cruise bai Appropriation in the= _ 'tal Budge ' --$600K for AV ~ ~~°~-D ~~red Mair_s~ Budget) ~~° ~~ ~`~ ~°' --$330K for" lator Buil~~~ at the S --$7.2M in ~ ~ to dev ~ in-state in Sewazd (Cruise Ship Head Tax (Cruise Ship Head Tax ~,:x., and ~itng Facility Expansion (Capital Airport for DOT/PF (Capital Budget) ral gas delivery capability. ^ En ~ ~ ~ date. el surcharge t ~'~onths ago peaked at approximately $.08 per unit - ~~ ral g ~ s a~~ was close to what our customers paid for the City of Seward ~'"ion which ~ ,~ rma'1 ~t least twice as high. The fuel surcharge was passed directly ugh the City of~ and frc~~~hugach Electric and the City of Sewazdhad nothing to 0 w e amount that _ ~ gazed on a persons invoice. New Information: The fuel surchazge nays ough us fro~'~hugach was prorated three months. ~~.~ ^ Developme~t~ Wirth++ ~hey Lake Hydro Plant. The Federal Energy Regulatory Commission (FERC), who~`~,.sged hydro plants for the use of federal lands, changed their policies regarding chazge~yfor the use of those lands. The reasons why these changes were made and what the changes were based on were still unclear. Due to these changes the charges applied to Bradley Lake would increase from $62,000 to $370,000, an increase of about 6 times. Since the City of Seward was a partial owner of Bradley Lake these charges would probably be passed along to the City and in turn to our customers. The Board of Directors for Bradley Lake voted on April 23, 2009 to join an already formed group of Hydro plants with a similaz markup. This group had already started litigation against FERC. Bradley Lake joined with the stipulation that the chazge to Bradley Lake would not exceed $30,000. ~9 City of Seward, Alaska City Council Minutes Apri127 2009 Volume 38, P~ ^ Harbor/SMIC. On Apri121, 2009 the entire Harbor staff received certification on CPR and AED proficiency for Children and Adults. The City applied for two MARAD "Assistance to Small Shipyard" Grants. One for a transfer system and new north berth at Seward Ship's Dry Dock, and a second application for electrical infrastructure improvements in the SMIC yard. Several businesses had voiced concerns regarding the allowable painting and maintenance regulations in place in the Harbor. Oates reminded that no person may spray paint a vessel in the harbor and repair and maintenance work must be done within the confines of the vessel (onboard the vessel), not on scaffolding, floats, or docks, as statin the city code. ^ Public Works. Staff was sweeping and washing streets; t ~_ 'm ~~ ~~ personnel were finishing up the tire change-over's, and assisting with soil remedi ' , . eneration Plant. Federal earmarked road improvements were ready to go to ~,~a nginee = " was moving toward a 2010 construction project. Public Works was ng with Hl~ finish up contract tr=. documents for the fish ditch. The departmen "also moving forwa `'th PN&D for the Lowell Creek Bridge refurbishment. The ' '~_ ` ped to do the estimated 000 project in September to avoid road closures during t mer se=; ~: ADEC had i `= ~` ted that the City was eligible fora $250,000 direct grant - e _ tion #3 electrical upgrade if the city could meet the June 17, 2009 construction li' ~dline. ^ The Twenty Sixth Alaska Legisla~re r ~ zed and c ~ tulated Seward Fire Chief David Squires upon receiving the preshgi ~ "Key y Lea' ~ ip Award" on September 27, 2008. ~~ ~ ,;,, ` ,~ Other Reports~~ ecial Pr~~ntation n A Recogmti ~ nd Reps~as Given Patty Linville For The Upcoming Alaska Statehood Symp ~~~~~4~ :_ Reso 2009-033 A1~olut~Y£~+[w~f The City Council Of The City Of Seward, Alaska, Author The City Mar~er To Proceed With The Acquisition Of Unnamed Tract 5, Forest Acres Sub 'on Accords " ~'o The Official Plat Thereof, Filed Under Plat No. 5-17, Records Of The Sewa ~cordrng~~trict, Third Judicial District, State Of Alaska; Excepting There from That Ports~~ ">~l~,~med Tract 5" Conveyed To The State Of Alaska, Department Of Transportation A is Facilities, By Warranty Deed Recorded August 7, 2003 In Book 121 At Page 485 Fo~271,000 And Appropriating Funds, For The North Forest Acres Levee/Road Project. Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. No one appeared to address the Council and the public hearing was closed. Oates stated the city had received all required permits for the levee project. In accordance with permits, the city was required to acquire property and rights of ways for all affected properties. The city had a very short window of time to relocate Japanese Creek, and funding could be jeopardized if not conducted quickly. Approved in this acquisition was a 10% signing bonus to these ~.~~ City of Seward, Alaska City Council Minutes Apri127, 2009 Volume 38, Page property owners because of the great need for these land acquisitions to go through expeditiously There were three primary properties still to attain. Oates recommended approval tonight. Finance Director Kris Erchinger noted this was negotiated at the same time as the previous acquisitions, but had to wait until this meeting because the city was waiting for the current land appraisal. The land acquisitions all had to go at the same time, as was negotiated by the owners. Motion (KeiWaldatta) Approve Resg,~!~n 2009-033 Valdatta wondered if the city could work a land Seward could house the research vessel and dock. Oates appraisal for that, but any type of negotiation was part o that. ~$ Motion Passed Resolution 2009-034, Amending The Port And Launch Fees, Effective May 1, 2009 h D Motion (Keil/Kellar) Oates stated this economy and to enco one year. The city~~, come to Seward that°" _~ fund. lawn s down. It m ~. the o~ _ _ town charter fl~ B ~'`~~ n thought ~~ to lowering t ~ king ra Inresponsel money in a box. He ` nuniversity to help ensure ill waiting for the land so h~ _ willing to look into riff By Temporarily Decreasing 2009. 2009-034 ;_ ~ „,~.; R_r a ems; graze th ~ was to help with the impacts o t e ose t ~ 1 visit S' "``d. This amendment would only be in effect for last year ~ ,; it wasn~ cost, but the continuing collection of fees to 3ifficult, 3P~: isitors. Paf the impact would be taken from the general rate down was good, but was concerned with bringing the as unfair competition for Seward's local charter fleet versus the launch fees away would take away from personnel, as opposed dates stated launch fees had to be monitored even though users put their was a clear signal that Seward was aggressively competing for visitors. Dunham was opposed to this resolution; he agreed that it would be unfair to local charters versus out of town charters. He didn't feel like Seward's budget could take that big of a hit, especially this year. He understood the reason for wanting to do this, but they should look at other ways to enhance and entice visitors and business. Valdatta noted the city picked up some unforeseen money when they gave out parking spaces at the ball fields. 101 City of Seward, Alaska City Council Minutes A ri127 2009 Volume 38, Page Notice of the public hearing being posted and published as required by law was noted and the public hearing was opened. Ron Long spoke in support of the resolution. He feared most visitors would go to Whittier this year instead of Seward, and he supported helping with the cost of visiting Seward. Kellar wanted to know how to compensate the local charter bo =_._ ers. Oates agreed with Long, that Seward should send a message to visitors that Seward s helping with the cost of ~ , visiting our community. f~~a 3, Bardarson had not thought about the idea of an un~venp~taymg ~ ,between local and non- , local charter boat owners. ~ y,` ih -~-- ~-'~_ Deputy Harbormaster Jim Lewis state of the cha er boats wer ' 1, and did not have an estimate of how many came over from o town an, ~ ~ the boat laun Dunham didn't understand Log's comment tl~~ , k~ and was enabling people to go to Whittier b not assin this resolution ~ ~'~ Y p g ~~ ~~ ' Keil supported this resolution. Sh'€dn't t ~ }ould excessive expense to the city, and most local businesses sl~~ ked with sZOrte~ ' ease in fees. a Motion Failed ~~~ ~ Yes. Bardarson, Keil, Valdatta u, '`' ''~ a No: Kellar, Dunham ~~. Resolution 2009 035, k 5~_ r,~i Fees Schedule For City-Owned Parking Lots, Te '~~ecre~~ a~ly Parkin ~e~es, Effective May 1, 2009 Through December 31 20 ~~ _ ~~~ ~ . ~u ~ ~° ~~~ ~ti. ~r~~ ~r ~~ tes stated this yr€~ omg the same lines as the previous resolution, to help assist in the cost ~ ` - ing to Sewaf~ Oates noted the financial impact of this reduction. Motion (Bar n/Kella ~ Approve Resolution 2009-035 fi ~' `:, Keil noted th~~for auto pay stations tonight would be $28,000, not $90,000 which was budgeted. ~~ Notice of the public hearing being posted and published as required bylaw was noted and the public hearing was opened. Ron Long stated the impact of all the fees, room and sales tax, parking, launch, and port fees that charter businesses had to explain to prospective customers. By unanimous consent, the rules were suspended to allow Long to answer questions in 1G2 Ciry Council Minutes Ciry of Seward, Alaska Volume 38, Page Apri127 2009 response to Kellar. Long gave a breakdown of cost of the various city and borough fees and taxes for parking, lodging, sales, passenger, and boat launching. Valdatta supported this, as the economy was flat, but he was one of the members who had supported the raise in fees. ~~ Keil stated a lot of people avoided the lots because of the i, a in fees. She felt it was a good time, again, to lower rates and help welcome visitors Most ' esses she talked to supported k .. a W=. this concept. s '~; ~~ ' .°' Bardarson felt now that the launch fees remaine ? ~~same, Sewars ~ d still do something to encourage and welcome visitors to the common ~ e worried about c~ ` funds to almost nothing for the parking fund. ~~ ~ ~' ~- -. Kellar thought this was a good feeling. In parking fees altogether would be too biRf a hit. ,_~ m= Dunham felt he could support thi hit like this. He was worried this would Oates wasn't m ta~f~: " indicated they did not ort this Motion Passed j~~~ Resolution ~ 1 ~ Tentj Parki arioil bor 200 ice of the pu ~ arm pubh ~ 'ng was opene"10 < closed. Motion (Kei fir) ,~~~= one Oates feared suspending the o~ didn't like to see the city take a than` ase visitors. the approval of all three. the others. Adminsitration ~~~~; iy Amendit a Time Constraints And Eliminating ree Parking Lots, Effective May 1, 2009 Through December 31, Ong posted and published as required by law was noted and the neared to address the Council and the public hearing was Approve Resolution 2009-036 ~~~ ~, Oates stated' ~unated the two hours of free parking, and every user would have to pay the reduced $5. Erch~i~ger clarified this just eliminated free parking except in the center lot, and would strongly enforce parking in the other lots. In response to Valdatta, Erchinger stated the parking in front of Chinook's and J Dock were designated parking, not paid parking. Motion to Amend (Bardarson/Keil) Amend Resolution 2009-036, by changing the 5th Whereas from "enforce the three- hour maximum" to "enforce atwo-hour 1~i3 City of Seward, Alaska City Council Minutes April 27 2009 Volume 38, Page maximum", changing Section 2 from "allowing `free' parking at all open times, and enforcing athree-hour maximum" to "allowing `free' parking, and enforcing a two-hour maximum", and changing the attached fee schedule from three hour maximums to two hour maximums for the middle lot. ~~ ~~ Motion to Amend Passed Main Motion Passed Council recessed at 9:10 p.m. Council resumed at 9:15 p.m. Other Public Hearing Items To Solicit Public Comment On The City Attorney Cheryl Brooking attended 's pot hem telephonically. ~~ ~~ ~ ~,. Oates framed the ~ ~ . +~.d wrth th '~~~ ~ sure ari ' ; ~~ attorney was made available via telephone. The bridg ~~re was ~ - oordin 'with the city and he felt the city had been playing catch up ever smce,~ ~ had com ~ icated be ,but Oates was very disappointed today, as the road was to reopen xn. this , ~ and it know currently 9:15 p.m. and the bridges were still closed. There was ~` ' e ~ tree ~ supplies, and he had just received word that w ~ ~n the bridge ' ~ ` fain clc~ ~ntil at least i~~trght. He was frustrated that he had not received calls wi ,s se up~rv Oa~`~ ;fit this was unacceptable and people were waiting in line to get ~~ stated them ~ tion sc~iedule was being evaluated to best accommodate for the monthly in ~ons, which Id refrain commercial vehicles throughout the inspections to cross the bridges. A nd vehi „g~tion was being considered. They still did not have final resolution ~ '`~ would come forward with it as soon as it was determined. of the inspection ~'~ ul _~~;. Once the bridges were back open, there would be no road closures, except for commercial vehicles over 30,000 pounds during monthly inspections. Alan Drake of DOT, expressed his shared frustrations on the bridge work. Each time he checked in, it was a few more hours. There were many set backs and delays, and the estimate was to have it open at midnight to one lane traffic. As far as restrictions on the temporary bridges, it would be normal legal loads. If it was over normal loads, they would need to work with DOT to schedule travel over bridges. Using a second machine would have to be clarified. 1G4 Ciry of Seward, Alaska Ciry Council Minutes April 27 2009 Volume 38, Page In response to Dunham, Drake noted the evening closures depended on the timing of the detour bridge of Trail River, which looked like later in the fall. Trail River would stay as it was for the rest of the summer, until the permits and designs for the detour bridge were bidded and awarded, and he guessed September. The Ptarmigan Creek and Falls Creek bridges would remain in temporary condition until final bridges were completed. City Attorney Cheryl Brooking clarified she represented the City of Seward, not the businesses of Seward. There was a statute that DOT had to cooperate""` ith local businesses and entities for procedures like this. If it was to be a significant project ,¶~ roject that fully closed an arterial road -plans and procedures must be adhered to. State 1~~ ~ uired DOT to cooperate and coordinate with local businesses, the City of Seward, and theme ~ ~ ~ ~ ula Borough. As far as a claim against state, there was sovereign immunity, bu~th e were ers for certain cases. Brooking stated some of the factual issues. She noted c~~tercial air traf r ~ Seward had ceased in the early 90's, ferry traffic was ceased a few yea~~~' which just left the y way. Notice of the public hearing being posted and pl?ed was r,~d and the pub7earing was ~ 1~ ` ~~ ;- opened. ~, i ~ Mica VanBuskirk, had been ` ~~ '' oss the bn ~- 1 afternoon, and ended up parking and hiking across the bridges. She state e" ~ ~ ~„ walke~ ~ z, ss was basically a road, it was a short walk and it was drivable. VanBusk ~ was sh how e` ` 'would have been to put in a detour road. She noted thee, ~! re a lot of ry p ~ ~ t~gse 'ass and a lot of businesses in Seward were losing mon '° k ed people p~ ~nai/Sol" ~a wouldn't come to Seward this year. ~~tiF." ~ ~ ~ ~~ Dan McDori said to, ~ ~ ed prod ~ at there needed to be an alternative plan. Everyone was impacte ~l"n ~ , ~ d „"the website was still not accurate, and the informati ~ dot odf,_ ~~ ~e to the publ ~~ the businesses, and the people who wanted to come :~ or t d6"~~ge tion/commercial closure, he felt it should be done at DOT's exp and done at rti~, Se d needed to push DOT to minimize the impact of Seward ,~ k busin not DOT. 1V1'd _ ald st we should not be hindering the project and the goal of repairin ~`_ ridges. He su ` = ted looking into getting funding from the state to educate people that the road wa ` n, it would ' ~ to be a huge marketing effort to repair the damage done with this extended clos ~,,,_ `; Ron Long, s ~ ~~e city and businesses had lost much money over this closure. He didn't see any reason to go ba~;k on this issue; he discouraged the city in pursuing legal action with DOT. Long felt that could spin off further damage to businesses. Even though there was harm done by the closure, he felt more harm was done by the lack of communication that was relayed to the community. He praised Community Development Director Christy Terry for basically taking on the role of liaison for DOT. His confidence level was low with this project getting into control. Long stated Seward needed to get the word out that after this the road would be open 24-7, and not leave this problem to DOT or the media. Seward needed to get the word out. He did not think litigation was the answer, instead Seward needed to think proactively on this situation. ,_~5 City of Seward, Alaska City Council Minutes April 27 2009 Volume 38, Page Valdatta said the road to Homer would have similar problems this summer. Kellar felt Seward just needed to do some damage control. Dunham said this was a difficult situation. A lot of time and effort had gone into trying to remedy this problem. DOT had seven months to work on this, and the idea that there was no alternative routing didn't make sense to him. His intention was for the city to file an injunction to stop the total closure due to not following protocol in closing the roa °~fter much discussion he decided against pursuing it. Dunham felt the promise of an estabh t of an alternate route was key, and a compromise to not taking legal action. Y ' ., NEW BUSINESS Resolution 2009-038, Authorizing The Purchase ~ ~tomated Pay Statt o Collect Daily Parlciug Fees And Appropriating Funds. Motion (KeiUI{ellar) pRroesolution 2009-038 Oates said this was a long soul efficient. It had taken some time to find servicing. Staff had found solar paneled this was a sole source contr ut ma willing to service this ar ~ , fi ~„ ~~ Erchinger siie units didn't lmow if it wo' ,~~~, more ~o help ma1i ~ p ,parking industry in the city more ~~ ,ell the ct mething due to the location and ~` 4. men felt co ~ nt purchasing. Erchinger said ~e to ~ this°~ as the only vendor that was rte 3-u ' ~~ c ~ke~to electricity, so they were less immobile, but to movthem or not. -~ , at this po ~ ~~ it would be on a trial basis, Oates stated. There nting money, Erchinger stated. thought Motion OTHER NEW Council scheduled a would like to see more machines later. Unanimous session on evaluation procedures for June 11, 2009 at 5:30 p.m. Council also scheduled a work session to prepare for the May 13, 2009 Economic Forum on May 11, 2009 at 6:00 p.m. INFORMATIONAL ITEMS AND REPORTS (No action required A Brief Report Was Given On The Generator Project By The Electric Department. 1G6 Ciry of Seward, Alaska Ciry Council Minutes April 27 2009 Volume 38, Pam COUNCIL COMMENTS Kellar wanted to recognize Kenai Watershed Forum and thanked staff for bringing forward the resolution tonight. Bardarson said to watch out for bikers and volunteer for the pavilion project. Keil expressed congratulations to Margaret Anderson for he~~, ice on the Planning and Zoning Commission. ~_ Dunham stated today was violent crime day. Dunh ~ ~ t ook into seawater pumps ,~ to heat streets, and the city should offer to assist in tryi tevelop idea. The city should research partially funding or file in conjunction to get - to do this. D announced during the Statehood Symposium Governor Miller would b -0^ ~ gnized for picking d as the location for AVTEC. He was impressed with children h fight, and thought it woul ~, ice if the city provided the helmets instead of having the famih chase t ~~=z ~ . Oates said long time Alaska Seal e Center mem mould be publicly recognized and also the board's unanimous support of gib ~ing to the lion project from their waterfront 4 development funds. ~~~ ~ ~. ;~ ~~" ~, CITIZENS' COUNCIL AND EXECUTIVE Motion Motion A Lack The meeting at 10:28 p.m. Jean Lewis, CMC City Clerk (City Seal) TO CITIZENS' COMMENTS -None Go into executive potential litigation road closures. session to discuss relating to the DOT Willard Dunham Vice Mayor 1G"7 AGENDA STATEMENT Meeting Date: May 11, 2009 From: Johanna Dollerhide, Assistant City Clerk~~ Agenda Item: Approval of the Liquor License application for Railway Cantina BACKGROUND & JUSTIFICATION: The City Council has an opportunity to object to the request for the liquor license application for the Railway Cantina. The City of Seward Police Department, Fire Department, Utilities Department and the Kenai Peninsula Borough Finance Department have no objections to the liquor license application for this business. According to the Alcoholic Beverage Control Board, the restaurant or eating place license allows the owner of a bona fide restaurant to sell beer and wine for consumption on the licensed premises only. FISCAL NOTE: In the event the City of Seward chooses to file a protest for the above liquor license application, then under Alaska Statutes the City of Seward will be required to assist in, or undertake the defense of its protest. RECOMMENDATION: Approval of the Restaurant Eating Place Public Convenience Liquor License application for the Railway Cantina. 1G8 MEMORANDUM Date: May 11, 2009 To: Kim Kowalski-Rogers, Finance -Leases Kari Atwood, Finance -Public Utilities Chief Tom Clemons -Police Department Chief David Squires -Fire Department From: Johanna Dollerhide, Assistant City Clerk,, ' SubJ: Verifying Compliance for the application of liquor license for Railway Cantina. The following business has applied for a restaurant eating/public convenience liquor license. Please review the following business for compliance with all utilities, lease payments, and assessments. Thank you! Name Department Status Initials Railway Cantina Restaurant Eating/Public Convenience Finance/L,eases Finance/Utilities Police Chief Fire Chief ~~ c==~ d_~ II~ ~.G9 APR-30-2009 THU 04:36 PM KENAI PENN BOROUGH CLERK FAX NO, 907 262 8615 P, 01/01 ~;. "e,.ti. ~I KENAI PENINSULA BOROUGH 144 N. BINKLEY ST • SOLDOTNA, ALASKA • 99869-7520 PMONE: (907) 714-2160 • FAX: (907) 714-2388 ~ Toll-free within the Borough; 1-800-478-4441, Ext. 2160 EMAIL: assemblyclerkQborough.kenai.ak.us JOHNI BLANKENSHIP, CMC BOROUGH CLERK Apri130, 2009 Ms. Dawn Holland-Williams Records & Licensing Supervisor Alcohol Beverage Control Board 5848 E. Tudor Rd. Anchorage, AK 99507-1286 Re: New Application Railway Cantina dba Taco Dann, T.LC #4915 Dear Ms. Holland-Williams: RECE~~~p MAY 012009 OFFICE OF THE Please be advised that the Kenai Peninsula Borough has no objection to the approval of the new license application for the following establishment, located in the City of Seward, Alaska: Restaurant Eating Place Public Convenience -Seasonal (4/]. -10/11 Railway Cantina dba Taco Dans, LLC #4915 The Kenai Peninsula Borough Finance Department has reviewed its files and has raised no objection based on unpaid or delinquent taxes. Sincerely, _~ Johni Blankenship, CMC Borough Clerk JB/mlt cc: Applicant - City of Seward (via fax) KPB Finance Department File 110 State of Alaska Alcoholic Beverage Control Board Date of Notice: April 28, 2009 Application Type: NEW X TRANSFER Ownership Location Name Change Governing Body: City of Seward Community Councils: None License #: 4915 License Type: Restaurant Eating Place Public Convenience Seasonal (4/1-10/1) D.B.A.*: Railway Cantina Licensee/Applicant: Taco Dans LLC Physical Location: 1401 4`h Ave Mail Address: PO Box 2284 Seward AK 99664 Telephone #: 907-224--8226 907-224-8226 Fax EIN: 68-0546254 Corp/LLC Agent: Address Phone Date and State of Good standing? Limited Partnershi /Co oration Charles E Jackson PO Box 2284 907-250- May 12, 2003 Yes Seward AK 99664 2541 Alaska Please note: the Members/Officers/Directors/Shareholders (principals) listed below are the principal members. There may be additional members that we are not aware of because they are not primary members. We have listed all nrineival members and those who hold at least 10% shares. Member/Officer/Director: DOB Address Phone Title/Shares (%) Charles E Jackson 11/3/70 PO Box 2284 Seward AK 99664 907-250-2541 Managing Member 100% tf transi"er application, current license information: License #: N/A Current D.B.A.: N/A Current Licensee: N/A Current Location: N/A Additional comments: Restaurant Designation Application will sent via US mail. FYI: Public Convenience license: ~ Yes ^ No Local Guvernin~Bodp: ii~ Ibis license is a Public C~ui~Icniencc liccnv.~, you nuisi res~uu5d to this, nc~iificaliun within (~O days. "hhc word'"A~~provcd" must he indicated in your r~~sE~onse (rju/~/nnre~t). Normally. a "nun- objection'" ~>r uo res~xnase is considered °'aphro~~al°': however. I? 1~At' I I1.1.335(I~)t 3) specifically state,: "the governing body of the municipality in which the licensed pr:~°wari~ties arr to be lucatrd a/tproves the appiication..• 1.11 I.rctlC emina PMV-New Frnmtl Page 2 **Date of Birth * Doing Business As Cc: Kenai Peninsula Borough A local governing body as defined under AS 04.21.080(11) may protest the approval of an application(s) pursuant to AS 04.11.480 by furnishing the board and the applicant with a clear and concise written statement of reasons in support of a protest within 60 days of receipt of this notice. If a protest is filed, the board will not approve the application unless it finds that the protest is "arbitrary, capricious and unreasonable". Instead, in accordance with AS 04.11.510(b), the board will notify the applicant that the application is denied for reasons stated in the protest. The applicant is entitled to an informal conference with either the director or the board and, if not satisfied by the informal conference, is entitled to a formal hearing in accordance with AS 44.62.330-44.62- 630. IF THE APPLICANT REQUESTS A HEARING, THE LOCAL GOVERNING BODY MUST ASSIST IN OR UNDERTAKE THE DEFENSE OF ITS PROTEST. Under AS 04.11.420(a), the board may not issue a license or permit for premises in a municipality where a zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages, unless a variance of the regulation or ordinance has been approved. Under AS 04.11.420(b) municipalities must inform the board of zoning regulations or ordinances which prohibit the sale or consumption of alcoholic beverages. If a municipal zoning regulation or ordinance prohibits the sale or consumption of alcoholic beverages at the proposed premises and no variance of the regulation or ordinance has been approved, please notify us and provide a certified copy of the regulation or ordinance if you have not previously done so. Protest under AS 04.11.480 and the prohibition of sale or consumption of alcoholic beverages as required by zoning regulation or ordinance under AS 04.11.420(a) are two separate and distinct subjects. Please bear that in mind in responding to this notice. AS 04.21.010(d), if applicable, requires the municipality to provide written notice to the appropriate community council(s). If you wish to protest the application referenced above, please do so in the prescribed manner and within the prescribed time. Please show proof of service upon the applicant. For additional information please refer to 15 AAC 104.145, Local Governing Body Protest. Note: Applications applied for under AS 04.11.400(g), 15 AAC 104.335(a)(3), AS 04.11.090(e), and 15 AAC 104.660(e) must be approved by the governing body. Sincerely, /s/ ~eeda7aramilCo Reeda Jaramillo Lead Business Registration Examiner Alcoholic Beverage Control Board 5848 E. Tudor Rd Anchorage, AK 99507 -Voice (907) 269-0350 -Fax (907) 272-9412 X12 STATE OF ALASKA ALCOHOLIC BEVERAGE CONTROL BOARD APPLICATION FOR RESTAURANT DESIGNATION PERMIT - AS 04.16.049 & 13 AAC 104.715794 FEE: SS0.00 The granting of this permit allows access of persons under 21 years of age a designated licensed premises for purposes of dining, and and persons order the age of 19 for employment. If for employment, please state in detail, how the person will be employed, duties, etc. (13 AAC 104.745). This application is for designation of premises where : (please mark appropriate items). 1 X Under AS 04.16.010(c) Bona fide restaurant/eatingPlace. 2 Persons age I6 to 20 may dine unaccompanied. 3 Persons under 16 may dine accompanied by a person 21 years or older. 4~Y _ Persons between 16 and 19 years may be employed. (See note below). LICENSEE: i ~ C~~ ~f~N ~ I LC ADDRESS: I`-IQ l AI [~ fi L` h.' ~ ~:LJA~ 1A17 ~ K I~ ~'~~`~ l . Hours of Operation: i(7 A,^1 to i ? qM Telephone # 'I~ ~ 4 • 2 2 ~l • 4' ~ 2 E 2. Have poli« ever been called to your premises by you or anyone else for any reason: [ J Yes ~'J No If yes, date(s) and explanation(s). 3. Dutiaofemploymem: -WAiT'RLa~i~JCm /CLEA~i~'vi~ 4. Are video games available W the public on your premises? ,.\iC: 5. Do you provide emertainment: [ ]Yes ~ ] No If yes, describe. 6. How is food served? _Table Service __Buffet Servi«~Counter Servi« OttteP 7. H the owarer, manager, or assistant manager always present during business hoursT ~] Yes [ ] No "•' A MENU AND A DETAILED LICENSED PREMISES DIAGRAM MUST ACCOMPANY THIS APPLICATION "•" This permit remains in effect omit the liquor licenx is transferred OR at fhe discretion of the Alcoholic Beverage Control Board. (13 AAC 104.795) 1 certify that I have read AS 04.16.049, S 04.16.060, 13 AAC 104.715-795 and have instructed my employees about provisions twntained thaeie, Applicant(s) ' rc Application approved (13 MC l04 725( Subscribed and sworn to before the this ~~'f 1t day of iit~Gi C - ~~ ~ .. > Notary Public in and for Alaska My Commission expires ~ " .~ ~ ~< S. e) Governing Body Official Date: ABC NOTE: AS 04.16.049(c) requires that written 1 to the licensee by the employee who is the consent or exemption. " Describe law food is served on back of form. 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