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Home My WebLink About07132009 City Council PacketSeward City Council Agenda Packet City Council Chambers July 13, 2009 Beginning at 7:00 p.m. _ __---- Enjoying awonderful summer! 1963 196s Zoos The City of Seward, Alaska CITY COUNCIL MEETING AGENDA anon-am ,~~ ,' 'm r {Please silence all cellular phones and pagers during the meeting} - July 13, 2009 7.00 p m Council Chambers Clark Corbridge Mayor Term Expires 2009 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 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. 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.) 5. 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) 6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS A. Proclamations and Awards 1. Alaska Challenge Wheelchair Race Proclamation ..................4 2. Appreciation Certificate for Doug Capra, Historic Preservation Commissioner ........................................................... 9 B. Borough Assembly Report C. City Manager's Report D. Report on #3 Lift Station by City Employee Steve Audette. E. Other Reports, Announcements and Presentation 1. Hospital Update and Introduction of Providence Administrator, Chris Bolton. 7. PUBLIC HEARINGS Resolutions requiring a public hearing 1. Resolution 2009-056, Approving A Third Amendment Lease Of Lot 1, Block 10, 4th Of July Creek Subdivision To Extend The Term Of The Lease By Five Years And Approve An Assignment To GCI Communications Corporation .............................................................................1 0 8. UNFINISHED BUSINESS -None City of Seward, Alaska July 13, 2009 Council Agenda Page 1 9. NEW BUSINESS A. Ordinances for Introduction 1. Non-Ordinance 2009-004, Appropriating Funds In An Amount Not To Exceed $500 To Make Expenditures Which Could Influence The Outcome Of An Election Concerning 2009 Advisory Ballot Proposition #1 Which Addresses The Addition Of Fluoride To The City Of Seward Drinking Water To The Level Of 0.7-1.2 Parts Per Million As Recommended By The U.S. Public Health Service .................................................................................16 2. Non-Ordinance 2009-005, Appropriating $500 To Make Expenditures That Could Influence The Outcome Of An Election Concerning Advisory Ballot Proposition #2 Which Asks The Qualified Voters If The City Should Increase The Sales Tax From 4.0% To 4.5% With The Understanding That The Additional Funds Are Expected To Be In An Amount Sufficient To Cover A Portion Of The Proposed Library/Museum Operating And Construction Costs.........26 3. Non-Ordinance 2009-006, Appropriating $500 To Make Expenditures That Could Influence The Outcome Of An Election Concerning Ballot Proposition #3 Which Asks The Qualified Voters If The City Should Pursue The Issuance Of General Obligation (GO) Bonds Not To Exceed $5 Million Dollars To Finance The Library/Museum Construction And Capital Costs ...........................................................................................................31 B. Resolutions * 1. Resolution 2009-057, Accepting A Grant In The Amount Of $4,766.40 From The Alaska Highway Safety Office For 2009 Fourth Quarter ASTEP Driving Under The Influence (DUI) Enforcement Campaign And Appropriating Funds .............................................35 *2. Resolution 2009-058, Accepting A Grant In The Amount Of $5,004.72 From The Alaska Highway Safety Office For 2009 Third And Fourth Quarter ASTEP Seatbelt Enforcement Campaign And Appropriating Funds .....................................................40 *3. Resolution 2009-059, Authorizing The City Manager To Sign An Extension Of A Special Services Contract Between The City Of Seward And The Department Of Public Safety Providing Dispatch And Clerical Services To Public Safety Employees In The Seward Area For Forty Eight Thousand And Five Hundred Dollars ($48,500.00) ......................................45 *4. Resolution 2009-060, Accepting Capital Funding In The Amount Of $30,581.00 From The State Of Alaska In Order To Install A New Roof Over The Steps And Exterior Door Of The Seward Community Jail And Appropriating Funds ...........................................49 *5. Resolution 2009-061, Requesting That The State Of Alaska Exempt Flood Mitigation Projects In The Seward Area From The Gravel Royalty Fee, As It Applies To Al] Flowing Waters Into Resurrection Bay, In The Vicinity Of Seward Alaska ........................54 City of Seward, Alaska Council Agenda July 13, 2009 Page 2 *6. Resolution 2009-062, Requesting That The State Of Alaska Revoke Its March 20, 2006 Navigability Determination As To Salmon Creek, Fourth Of July Creek And Sawmill Creek, All Located In The Vicinity Of Seward, Alaska............ ...........61 *7. Resolution 2009-063, Requesting The USDA Natural Resources Conservation Services Expeditiously Complete Soils Surveys In The Seward Area... ... gs C. Other New Business Items * 1. Approval Of The June 22, 2009 Regular City Council Meeting Minutes and the June 24, 2009 Special City Council Meeting Minutes ..............................92 10. INFORMATIONAL ITEMS AND REPORTS (No action required) A. Master Municipal Clerk Academy Completion Certificate for Jean Lewis, CMC.105 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 July 13, 2009 Pa e 3 g pQOCLAMA7/ON WHEREAS, Challenge Alaska is a non-profit organization that provides therapeutic recreation for people with disabilities year round, and has been preparing for their silver anniversary since 2007; and WHEREAS, this year is the 25th Anniversary, and Challenge Alaska has organized Sadler's Alaska Challenge, known as the longest and toughest race in the world for wheelchair and handcycle athletes; and WHEREAS, organizers at Challenge Alaska -who own and operate the race - are plamling something very special for the 25th Anniversary event, which will take place beginning July 20, 2009 in Seward; and WHEREAS, this lace has developed a reputation as the Uest race in the world, and is a `must do' for athletes with disabilities lrom all over the world, so they've decided to raise the bar even. higher far the 25th anniversary in 2009; and WHEREAS, Sadler's Alaska Challenge will start stage one and two in Seward, starting with a 14 mile time trial out Exit Glacier road, and a ten mile circuit race that will showcase the athletes racing through the streets of Seward; and WHEREAS, Challenge Alaska has been working with the City of Seward, Kenai Fjords National Park, the Sealife Center, AVTEC, Windsong Lodge, and the Seward Fire Department to provide housing, meals, medical support, and race course for stages one and two; and WHEREAS, the race will continue on to Hope to Portage, Girdwood, Cordova, Valdez, Wrangell St. Elias Park and finishes with afirst-ever mountain ascent to the top of Hatcher's Pass in Palmer on July 26, 2009. 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 25th annual Sadler's Alaska Challenge, and wish them a rewarding and safe race journey through Alaska. Dated this 13th day of July, 2009. Clark Corbridge, Mayor Cha~len~e Alas~Ca oe=.~ha~ PAE~RANS Stage 2: Monday, July 20, 2009 Seward Downtown Criterium Start time: to be determined ~ Course length: 1 km (.62 mile) ~,. ~ $ j ~ H~a~t~t,art~rs 'PrQ~l~~n~~e t i reward 1~1~di~at ~ ; ~ _ __ _.; l~_ _.. __ - - -- and~~ar~ den#er __ _ - Je~ersar~ ~t - _ _ _ _ _._ , _. -- ~' ~ _ ~ ~! .__ ~ j ' t { 1 j ~' ~j ~~ ~~I ., __ ,~ ~~ ~~u~~, ~r ~. ; - ~ f~ ~ ~! ~ x --_ __. __ ,_ - - _ .~~~~n1~ St ~ i--- - - k ~~f ~ ~ ~~ ~ '4: ~ ~ 1 ~ ~ j ~ f ~ ~ ~ f j I ~ ~ __ , ,_ __ _~. _--~ ~ ~~ !~'~'~sh~~Qn ~t : - F. ~ ..~ _ ~ ~ - -~ _.~~ V1~ashingkon :~~, . __ =~ ~ i ~..~~ = Challenge AK Staff Traffic control and/or Police 0 =EMS Crew and/or standby ambulance ~r:`~t~rfr~~~nt 'ark Fvent 1gir~g I Faring 5#a1't ~~ClfSfl ~ llne Notes: -Cars approaching intersection ofJefferson & 5th will be flagged through when course is clear -Course could run in either direction, pending safest line through turns -Total closure time: 90 minutes - 2 hours (Two groups at 45 - 60 minutes each) -Course could be closed fora 2-hour block, our two, 1-hour blocks - Time is flexible: Anytime between 2:OOpm and ]O:OOpm -Staff can place advance warning signs in cooperation with city ifnecessary -Race communications provided by Arcticom. Arcticom interfaces directly with local police and fire, and directly with course marshals. Race will be immediately neutralized, and course opened If EMS needs to get within closure. UCLUl~l J Al(,1J1~C1 x.+11411 \+11~'~+ ~~~ . Home . About . 200.9__Race_Information . Roster . Media Information . 2009 Race Preview __ . Race Sponsors 2009 Race Preview _~.._._. ~i5rt~ .a~nni~ersar~ >E~ae~e: Juty :19 .~ ~. . __ ~~. ~ ,~ 25th Anniversary Sadler's Alaska Challenge Race Preview by Ian L. Lawless & Heather Plucinski N Co-Directors, 2009 Race __ . At the Paralympic Games in Beijing China last year, the world witnessed some incredible competition - particularly during the handcycling and wheelchair racing events. While preparing the roster for this year's Sadler's Alaska Challenge, we noticed something: It's not very different from the start list in Beijing! With the 25th Anniversary buzz circulating for 22 months now, word got around that this year's race would be something special. As expected, we have some big name, international competitors. But what we didn't expect, is just how many we would have. Below are some statistics and some racers to watch ., ~, http://www.sadlersakchallen~e.or~/ 7/8/2009 Sadler's Alaska Challenge out for: Athletes racing this year who also competed in Beijing: 16 Number of athletes who won Gold medals in Beijing: 4 Athletes who have, or currently hold World Records: 7 Number of Alaskan entrants: 8 (the most ever) Number of women entrants: 5 (the most ever) Number of countries represented: 8 (the most ever) Total number of racers: 39 (the most ever) Youngest Competitor: 25 Oldest Competitor: 70 Page 2 of 4 In addition, the race will feature two combat-injured veterans -Melissa Stockwell and Carlos Moleda - both fierce competitors, but -like all of their fellow race entrants -show us just how important sport can be for better health, well-being, and morale...no matter your "ability." This race is important to different competitors for different reasons. Connecticut's Joe Dowling, for example, has raced in Alaska a handful of times, but he will be celebrating his 70th birthday at this year's race, and he'll be a happy man atop Hatcher's Pass on July 26th. Larry Coutermarsh -who lives in North Pole, AK -will of course be racing for his 25th time. Why not ?You get free entry after 15 years! Many other racers are coming to experience the beauty of Alaska...a different part than is usually seen on the race. One of the biggest reasons many elite competitors come to Alaska, is because there really is no other event like it anywhere in the world. It's been billed as the "Tour de France" of wheelchair sports, and is the only multi-day, timed stage race in the world for handcyclists and wheelchair racers. Combine that with the beauty of Alaska and the kindness and hospitality of the communities visited by the race, and you get a truly memorable experience. Who will win ? There are some big, BIG names to look out for this year, and we expect some incredible racing on the roads of Alaska. In the Kneeseat handcycle race, former winner -and Paralympic Gold Medallist -Ernst Van Dyk of South Africa, will have his hands full with another former winner, Scott McNeice, who is one of the world's best climbers. Another Paralympian, Norbert Mosandl of Germany will be on hand to do battle with Van Dyk, McNeice, newcomer Chris Peterson, and another South African, Krige Schabort...who will also look to make his mark on the climbs. In the Longseat category, it's anybody race, and you can expect a big group on the first five stages before the mountains create larger time gaps. Switzerland's Heinz Frei won double gold in Beijing, and is no stranger to mountains. However, one look at the roster, and it's easy to see that there are a lot of other guys who hail from mountainous areas: The entire Austrian handcycling team is here: pretty sure there are some mountains there...watch for Manfred Putz, who is well known on the European circuit. A couple of guys from Colorado: Drew Wills and Matt Updike (who represented Team USA in Beijing)... yeah, they can climb. And don't forget the German, Stefan Baumann...he is a regular fixture in the rearview mirror of Frei, and another Austrian who now lives in Germany: Elmar Sternath. Sternath has raced at Sadler's before, and is back to do battle for the 25th Anniversary bragging rights. Tlae women's handcycl~_zaGe~w~i,~l_be.o~ of.Ihe, ~,ost,exct~r~g_,ev~r! You.caz~ expect a_bal#le_foz tiz~tQrv_, ,_. _ `~~ httr~•//ianinx~ carilarcalrrhallanrra nrR/ 7/R /7MQ ,~auier s tiiasxa ~.naiienge between bitter rivals, Andrea Eskau of Germany and Monique Van der Vorst of the Netherlands (both ride kneeling bikes), but look for the remaining three [American] women, Susan Katz, Melissa Stockwell, and former winner Sherry Schulz -all of whom ride longseat bikes - to battle for the final podium spot. In the men's wheelchair race, forme winner James Lilly will be back for his 10th time in a racing chair, and is always a guy to watch. However, Lilly will have to contend with another former winner and Sadler's regular, Paul Nunnari of Australia, who is known for his climbing prowess and was excited when he learned of this year's course. If that's not enough, Mexico's Saul Mendoza is looking to cap his career at this year's race, and if you haven't heard of him, Google will give you about 100,000 results that include world records, Paralympic medals, and the like. Don't forget about the Speedy Sourdough award....Challenge Alaska, host of the race is proud that there are eight Alaskans this year...the most ever at the race. Mark Hufford and Kevin Jackson are experienced Alaskans who will share no secrets with strong newcomer Bill Lasher. Edwin Jones, Mike O'Neill, Brant Schalk, and Rick Gilliland all are looking fit and ready to roll. Larry Coutermarsh who always draws a crowd will be sure to show with his usual flair. ~~g~ ~ E ~~ a ~~g ~ ~ s 3 b ~ ~NS~ ~ g ~~ ~~~~~ 0 0 ~ ~3. ~~~~ ~ ~ Q ~~ ~° ~ ~ ~~ D ~ ~ ~~ ~~ . ~~3 ~ ~ ~~ ~~ ~ Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-056 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A THIRD AMENDMENT LEASE OF LOT 1, BLOCK 10, 4TH OF JULY CREEK SUBDIVISION TO EXTEND THE TERM OF THE LEASE BY FIVE YEARS AND APPROVE AN ASSIGNMENT TO GCI COMMUNICATIONS CORPORATION WHEREAS, in order to ensure the continued use of valuable city-owned land (Re-88-067) and to allow for businesses' long-term planning, the City leased land to GCI Cable, Inc. utilized the site for a communication tower occupying 1,886 square feet of property more commonly known as Lot 1, Block 10, 4`" of July Creek Subdivision, Seward Marine Industrial Center; and WHEREAS, the lease began on June 23, 1988 through June 22, 2008 including a ten-year extension. The parties have operated on month to month extensions, authorized by the Lease, since June 2008; and WHEREAS, GCI Cable, Inc. wishes to continue their lease through June 22, 2013; and WHEREAS, GCI Cable would like to assign the lease to its affiliate GCI Communications Corporation; and WHEREAS, notice of Lease Amendment No. 3 was published and a public hearing was held. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to enter into Lease Amendment No. 3, in substantially the form presented at this meeting, on behalf of the City. Section 2. This resolution shall take effect thirty (30) days after passage and posting. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 13t" day of July 2009. _ ~~ COUNCIL AGENDA STATEMENT ,~/ ~'!~ ; (~ Meeting Date: July 13, 2009 - '~ ~~ ~ ~i Through: Phillip Oates, City Manager!/ From: Kari Anderson, Harbormaster Agenda Item: Authorizing the City Manager to enter into a lease extension with GCI Communications Corp. for Lot 1, Block 10, 4t" of July Creek, Seward Marine Industrial Center BACKGROUND & JUSTIFICATION GCI Communications Corporation (formerly Seward Cablevision, later GCI Cable) entered into a lease with the City of Seward effective June 1988 for a site at the Seward Marine Industrial Center. This lease encompasses Lot 1, Block 10, 4t" of July Creek, Seward Marine Industrial Center in the Seward Recording District. Article V.2 allowed the lease to be extended through June 2008 and the lease has been continued past this date on a month to month basis with all terms, covenants and conditions related to Article V.3 in the current lease. GCI Communications Corp. is requesting a 5 year extension of this lease through June 2013. This lease area encompasses 1,884 square feet. The attached map shows the leased site in relation to Nash Road and other leased and private properties in the Seward Marine Industrial Center. The site will be used only for construction, maintenance and operation of a technical facility and related communication equipment in conjunction with GCI's operations as a telecommunications provider. Any improvements to the site will be approved by the City in writing prior to construction. The City will conduct appraisals of its rental property in 2010 and new rental rates are now in effect, based on fair market rental values. The lease extension 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, Support development of modern communications infrastructure) 2. Strategic Plan X (Growth Management and Land Use Planning: Promote residential and commercial development inside the city) 3. Other: SMIC Development Plan X (Goal: Sound, Maximized and Coordinated Development of private and public uplands in support of the needs of the users and visitors) FISCAL NOTE 1~ The rent is four hundred ($400.00) dollars and is paid in two semi-annual installments. The annual base renal payment shall be adjusted on July 1, 2010, and on the same date every five years thereafter as the appraised fair market rental value. Finance Department: e~~ ~ J,`u` ' ~~rP`~-~ ATTORNEY REVIEW X RECOMMENDATION Council approve Resolution 2009- p~ authorizing the City manager to enter into a Lease extension with GCI Communications Corp. for Lot 1, Block 10, 4th of July Creek, Seward Marine Industrial Center. 12 LEASE AMENDMENT N0.3 (RE-88-067) TI3E CITY OF SEWARD, ALASKA, a home rule municipal corporation, organized and existing under the laws ofthe State ofAlaska, hereinafter referred to as "CITY," whose address is PO Box 167, Seward, Alaska 99664 and GCI CABLE, INC., 2550 Denali St., Suite 1000, Anchorage, Alaska 99503, and GCI COMMUNICATION CORPORATION, 2550 Denali St., Suite 1000, Anchorage, Alaska 99503, hereby agree that the lease agreement 88-067 for Lot 1, Block 10, 4"' of July Creek Subdivision, Seward Marine Industrial Center, Thud Judicial District, Seward Recording District, State of Alaska is hereby amended as follows: ITEM 1. ARTICLE V. LEASE TERM The term of this lease shall be extended and shall terminate on June 22, 2013. ITEM 2. GCI Cable, Inc. hereby assigns all o f its right, title and interest to the Lease to GCI Commmiication Corporation and GCI Communication Corporation accepts full assignment. The City hereby consents to the assignment and releases GCI Cable Inc. from all rights and obligations under the Lease. In all other respects, the Lease is to remain unchanged and in full force between the undersigned parties. LESSOR: CITY OF SEWARD Phillip Oates, City Manager ATTEST: Jean Lewis, CMC, City Clerk (City Seal) LESSEE: GCI Communication Corporation By: X10 ~R ~s Its: G t l v A GCI Cable Inc. By: d vc ~ L . ,~ Page 1 of 3 13 STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this _ day of ,2009,befr~reme, the undersigned, a Notary Public in and for the State of Alaska, personally appeared Phillip Oates, known to me and to me known to be the City Manager for the City of Seward, Alaska, and authorized to execute documents on its behalf, and is the individual named in and who executed the foregoing document on behalf of the City of Seward for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. NOTARY PUBLIC IN AND FOR ALASKA My Commission Expires: STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this ~ day of 2009, be re me, tfi un r igned; a Notary Public in and for the Stat of Alaska, personally appeared known to me and to me known to be the ~/ ' _ for GCI Cable, Inc. and authorized to execute documents on its behalf, and is the in ividual named in and who executed the foregoing document on behalf ofthe corporation for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. I'ARY PUBLIC IN AND F A Commission Expires: ;'i~.rr. OF ALASKA .~~~~ NOTARY PUBLIC :,~ti ~~`~ Sarah Burke ••n., Rnmrr~ssion Expires: October 22, 2012 Page 2 of 3 - 14 STATE OF ALASKA ) ss. THIRD .NDICIAL DISTRICT ) THIS IS TO CERTIFY that on this ,~_ day of _, 2009, b fore me, t undersigne a Notary Public in and for the State of Alaska, personally appeared known to me and to me known to be the for GCI Communication Corporation, and authorized to execute documents on its ehalf, and is the individual named in and who executed the foregoing document on behalfof the corporation for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. GARY PUBLIC IN AND~~~~ Coirnnission Expires: (~ ,% Return to: City of Seward Harbor Dept. PO Box 167 Seward, AK 99664 "l'ATL OF ALASKA ,..••.., ,,,~,,,. NOTARY PUBLIC =~a~~~= ~ Sarah Burke My Commission Expires: October 22, 2012 Page 3 of 3 Sponsored by: Oates Introduction: July 13, 2009 Public Hearing: July 27, 2009 Enactment: July 27, 2009 CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-004 A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING FUNDS IN AN AMOUNT NOT TO EXCEED $500 TO MAKE EXPENDITURES WHICH COULD INFLUENCE THE OUTCOME OF AN ELECTION CONCERNING 2009 ADVISORY BALLOT PROPOSITION #1 WHICH ADDRESSES THE ADDITION OF FLUORIDE TO THE CITY OF SEWARD DRINKING WATER TO THE LEVEL OF 0.7-1.2 PARTS PER MILLION AS RECOMMENDED BY THE U.S. PUBLIC HEALTH SERVICE WHEREAS, the Seward City Council passed Resolution 2009-043 on May 26, 2009 to submit Advisory Proposition # 1 to the qualified voters at the October 6, 2009 regular municipal election advising whether to fluoridate the city's drinking water; and WHEREAS, there are pros and cons to adding fluoride to community water supplies and there is passion among both the proponents and opponents of fluoridation; and WHEREAS, in an attempt to remain neutral in this debate and let the voters decide, it may be necessary for the city to put out a pro and con statement to educate voters on both sides of this issue; and WHEREAS, some money may be used to put out a neutral statement; and WHEREAS, the city council has determined it is in the public interest this issue be submitted to the qualified voters of the city; and WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted municipal funds to influence the outcome of an election and require registering and reporting under AS 15.13.040 and AS 15.13.050; and WHEREAS, in order to educate the public in accordance with the provisions of 2AAC 50.360(b), the City Council must appropriate funds since the education process may influence the outcome of an election; and WHEREAS, under AS 15.13.145, a municipality may not use money to influence the outcome of an election concerning a ballot proposition unless the funds have been specifically appropriated for that purpose by the elected body. ~~ CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-004 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Council hereby appropriates and authorizes expenditures in an amount not to exceed $500 from the city manager's training and education account number 101-1120-5160 for the purposes of educating the public, if needed, about the pros and cons of adding fluoride to the city's water supply that may have the potential to influence the outcome of the election. Section 2. The City Council further directs and authorizes the city manager and other City officers, officials, and employees, as may be appropriate, to register and to complete and file all necessary reports, forms, and notices relating to election-related expenditures as required by law. Section 3. This ordinance shall take effect ten (10) days following enactment. ENACTED by the City Council of the City of Seward, Alaska, this 27th day of July, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: ~~ Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor Corbridge, City Council Members ~~~ From: Jean Lewis, City Cler,~~~';-`4 ~...--~' Agenda Item: Expending public funds that could influence the outcome of an election -Fluoride Advisory Proposition #1 BACKGROUND & JUSTIFICATION: Advisory Proposition # 1 will submit to the qualified voters the question of whether to add fluoride to the City of Seward drinking water to the level of 0.7-1.2 parts per million as recommended by the U.S. Public Health Service. AS 15.13.145 states that money held by a municipality maybe used to influence the outcome of an election concerning a ballot proposition or question, but only if those funds have been specifically appropriated for that purpose by state law or municipal ordinance. On the issue of fluoride, the city wishes to remain neutral in its position. In the event the city believes it should disseminate neutral bipartisan information on this subject to the public, this ordinance provides flexibility and allows for the funds to be expended, if needed, to educate the public, which could influence the outcome of the election on this matter. The City is allowed to prepare and distribute neutral materials to educate the public on the proposition before them. The city would have to follow state reporting requirements in 2AAC 50.360 and AS 15.13.140-155 if bipartisan materials and public funds are used. If the city were to use these funds to disseminate bipartisan materials, we would have to follow state reporting requirements in 2AAC 50.360 and AS 15.13.140-155. INTENT: The city council wishes to remain neutral on this subject and let the public decide this issue. If the city council decided it needed to expend funds for anon-partisan ballot summary related to this Advisory Proposition # 1, this non-code ordinance provides the flexibility to allow the city council to do so. CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: ~~ FISCAL NOTE: If the council decides it needs to disseminate non-partisan information to educate the public, these funds would come out of the City Manager training and education fund account # 101-1120-5160. Approved by Finance Department: 1~- - ~~,~.J ~ RECOMMENDATION: City Council introduce and enact Non-Code Ordinance 2009-004 appropriating funds for the purpose of possible expenditures to educate the public which could influence the outcome of an election concerning advisory ballot proposition #1, which addresses the addition of fluoride to the City of Seward Drinking water to the level of 0.7-1.2 parts per million as recommended by the U.S. Puhlic Health Service. tV.tU.V'tV groups which have registered with commission pursuant to AS 15:13.050. VECO Int'1, Inc. v. Alaska Pub. Offices 'Comm'n, 753 P.2d 703 (Alaska 1988), appeal dismissed, 488 U.S. 919, 109 S. Ct. 298, 102 L. Ed. 2d 317 (1988). Applied in Messerli v. State, 626 P.2d 81 (Alaska 1980). 692 :` 693 II. REGULATIONS. No regulations were necessary to implement the mandatory provisions for filing an appoint- ment of campaign treasurer established by AS 15.13.060(c). Silides v. Thomas, 559 P.2d 80 (Alaska 1977). Sec. 15.13.040. Contributions, expenditures, and supplying of services to be reported. (a) [See delayed amendment note.] Except as provided in (g) and (Z) of this section, each candidate shall make a full report, upon a form prescribed by the commission, (1) listing (A) the date and amount of all expenditures made by the candidate; (B) the total amount of all contributions, including all funds contributed by the candidate; (C) the name, address, date, and amount contributed by each contributor; and (D) for contributions in excess of $50 in the aggregate during a calendar year, the principal occupation and employer of the contributor; and (2) filed in accordance with AS 15.13.110 and certified correct by the candidate or campaign treasurer. (b) Each group shall make a full report upon a form prescribed by the commission, listing (1) the name and address of each officer and director; (2) the aggregate amount of all contributions made to it; and, for all contributions in excess of $100 in the aggregate a year, the name, address, principal occupation, and employer of the contributor, and the date and amount contributed by each contributor; for purposes of this paragraph, "contributor" means the true source of the funds, property, or services being contributed; and (3) the date and amount of all contributions made by it and all expenditures made, incurred, or authorized by it. (c) The report required under (b) of this section shall be filed in accordance with AS 15.13.110 and shall be certified as correct by the group's treasurer. 7 (d) Every individual, person, nongroup entity, or group making an expenditure shall make a full report of expenditures, upon a form prescribed by the commission, unless exempt from reporting. (e) The report required under (d) of this section must contain the name, address,. principal occupation, and employer of the individual filing the report, and an itemized list of expenditures. The report shall be filed with the commission no later than 10 days after the expenditure is made. (f) During each year in which an election occurs, all businesses, persons, or groups that fu-rnish any of the following services, facilities, or supplies to a candidate or group shall maintain a record of each transaction: newspapers, radio, television, advertising, advertising agency services, accounting, billboards, printing, secretarial, public opinion polls, or research and professional campaign consultation or management, media production or preparation, or computer services. Records of provision of services, facilities, or supplies shall be available for inspection by the commission. (g) The provisions of (a) and (Z) of this section do not apply to a delegate to a constitutional convention, a judge seeking judicial retention, or a candidate for election to a municipal office under AS 15.13.010, if that delegate, judge, or candidate (1) indicates, on a form prescribed by the commission, an intent not to raise and not to expend more than $5,000 in seeking election to office, including both the primary and general elections; (2) accepts contributions totaling not more than $5,000 in seeking election to office, including both the primary and general elections; and 692 693 STATE ELECTION CAMPAIGNS § 15.13.040 implement (3) makes expenditures totaling not more than $5,000 in seeking election to office, including both the i an appoint- fished by AS pr mary and general elections. (h) The provisions of (d) of this section do not apply to one or more expenditures d d so (Alaska ma e by an individual acting independently of any group or nongroup entity and independently of any other individual if the expenditures ces to be (1) cumulatively do not exceed $500 during a calendar year; and 3 (Z) of this (2) are made only for billboards si s or ~ ~ ~ printed material concerning a ballot proposition as that term is defined by AS 15 13 065(c) 'd by the . . . ~ (i) The permission of the owner of real or ersonal ro ert to ol ical signs o ai , including bumper stickers, or to use space for an event or to store cam p gn-related materials is not considered to be a contribution to a candidate under this chapter unless 'd by the the owner customarily charges a fee or receives payment for that activity. The fact that the owner customarily charges a fee or re i ' ce ves a p yment for posting signs that are not political signs is not determinative of whether th end e owner customarily does so for political signs. year, the (j) Except as provided in (Z) of this section, each nongroup entity shall make a full ~didate report in accordance with AS 15.13.110 upon a form prescribed by the commission and or certified by the nongroup entity's treasurer, listing nmi i (1) the name and address of each officer and director of the nongroup entity; ss on, (2) the aggregate amount of all contributions made to the nongroup entity for the purpose of influencing the outcome of an election; autions in (3) for all contributions described in (2) of this subsection, the name, address, date and tion and , amount contributed by each contributor and, for all contributions described in (2) of this , butor; for; subsection in excess of $250 in the aggregate during a calendar year, the princi al p occupation and employer of the contributor; and operty, or (4) the date and amount of all contributions made by the nongroup entity, and, except •es made;.. as provided for certain independent expenditures in AS 15.13.135(a), all expenditures made, incurred, or authorized by the nongroup entity, for the purpose of influencing the with AS outcome of an election; a nongroup entity shall report contributions made to a different nongroup entity for the purpose of influencing the outcome of an election and expendi- ure shall tures made on behalf of a different nongroup entity for the purpose of influencing the ~ n unles outcome of an election as soon as the total contributions and expenditures to that , s nongroup entity for the purpose of influencing the outcome of an election reach $500 in addres a year and for all subsequent contributions and expenditures to that nongroup entity in s, nized list a year whenever the total contributions and expenditures to that nongroup entity for the ays after purpose of influencing the outcome of an election that have not been reported under this paragraph reach $500. Iups that (k) Every individual, person, nongroup entity, or group contributing a total of $500 or pup shall more to a group organized for the principal purpose of influencing the outcome of a •ertising proposition shall report the contribution or contributions on a form prescribed by the , i i commission not later than 30 days after the contribution that requires the contributor to op n on s media z report under this subsection is made. The report must include the name, address, , principal occupation, and employer of the individual filing the report and the amount of services, the contribution, as well as the total amount of contributions made to that group by that ate to individual, person, nongroup entity, or group during the calendar year. a ection t (Z) Notwithstanding (a), (b), and (j) of this section, for any fund-raising activity in o which contributions are in amounts or values that do not exceed $50 a person the id not to , candidate, group, or nongroup entity shall report contributions and expenditures and supplying of services under this subsection as follows: iary and - (1) a report under this subsection must (A) describe the fund-raising activity; to office, (B) include the number of persons making contributions and the total proceeds from the activity; ~~ "z § 15.13.045 ELECTIONS Sec. 15.13.045. Investigations, hearings. (a) The commission ma nas, administer oaths, hold hearings, and conduct investigations. (b) In conjunction with (a) of this section, the commission may compel of witnesses and production of papers, books, records, accounts, docurrrn mony, and may have the deposition of witnesses taken in a manner prey" rule or law for the taking of depositions in civil actions when consistent'~~ and duties assigned to the commission by this chapter. ' (c) The commission may examine the papers, books, records, accounts;`., of any person subject to this chapter to ascertain the correctness of a repo' commission, or in conjunction with an investigation or inspection condur this section. (d) Subpoenas may be issued and shall be served in the manner. pr 44.62.430 and court rule. The failure, refusal, or neglect to obey a ubpoe as contempt in the manner prescribed. by law or court rule. The- supE compel obedience to the commission's subpoena in the same manner ai obedience to a subpoena issued by the court. (§ 14 ch 189 SLA 1975) NOTES TO DECISIONS Cited in Silides v. Thomas, 559 P.2d 80 (Alaska 1977). See. 15.13.050. I~,egistration before expenditure. (a) Before maktn ture in support of or in opposition to a candidate or before making an e support of or in opposition to a ballot proposition or question, each person individual shall register, on forms provided by the commission, with the (b) If a group intends to support only one candidate or to contribute to behalf of one candidate 33 1/a percent or more of its funds, the name of the ci be a part of the name of the group. If the group intends to oppose only ori~ to contribute its funds in opposition to or make expenditures in opposition the group's name must clearly state that it opposes that candidate by usin « ,~« »«• > ~~; as opposes, opposing, m opposition to, or against in the groups n upon. receiving the registration, the commission shall notify the candidate ~??_ organization and intent. A candidate may register more than one group: ~ ' candidate; however, multiple groups controlled by a single candidate shal a single group for purposes of the contribution limit in AS 15.13.07,0(b)(1).1 t 1974; am § 15 ch 189 SLA 1975; am § 8 ch 48 SLA 1996; am § l ch 3 S Effect of amendments. -The 1996 amendment, effective January i, 1997, rewrote this section. Trie 2002 amendri,ent, effective April 16, 2002, in NOTES TO Disclosure requirements constitutional. - The disclosure requirements of this chapter are not unconstitutionally vague or overbroad, nor do they violate the constitutional right of the people to pri- vacy. VECO Intl, Inc. v. Alaska Pub. Offices Comm'n, subsection (b) added the last minor stylistic changes. DECISIONS 753 P.2d 703 (Alaska 1988),. al U.S. 919, 109 S. Ct. 298, 102 L. Cited in Alaska Right to Life F.3d 773 (9th Cir. 2006). Sec. 15.13.060. Campaign treasurers. (a) Each candidate and grouF a campaign treasurer who is responsible for receiving, holding,. and contributions and expenditures, and for filing all reports and statements re A candidate may be a campaign treasurer. (b) Each group shall file the name and address of its campaign trea<, commission at the time it registers with the commission under AS 1'5.13. ~2 712 713 STATE ELECTION CAMPAIGNS § 15.13.155 Nothing prevents individual organizers of non-group may communicate their endorsements to their em- '° entities from either forming a "group" to collect con- ployees or members. State v. Alaska Civil Liberties Civil Liberties tributions and make expenditures, or soliciting indi- Union, 978 P.2d 597 (Alaska 1999), cert. denied, 528 denied, 528 'rt vidual contributions from other members without U.S. 1153, 120 S. Ct. 1156, 145 L. Ed. 2d 1069 (2000). . 2d 1069 (20001. relying on treasury funds; further, non-group entities it Sec. 15.13.140. Independent expenditures for or against ballot proposition or question. (a) This chapter does not prohibit a person from making independent expenditures in support of or in opposition to a ballot proposition or question. F (b) An independent expenditure for or against a ballot proposition or question (1) shall be reported in accordance with AS 15.13.040 and 15.13.100 - 15.13.110 and other requirements of this chapter; and (2) may not be made if the expenditure is prohibited by AS 15.13.145. (§ 24 ch 48 SLA 1996) _ Sec. 15.13.145. Money of the state and its political subdivisions. (a) Except as rtes. (a) Only provided in (b) and (c) of this section, each of the following may not use money held by the ;expenditure entity to influence the outcome of the election of a candidate to a state or municipal office: indent expen- ~~ ~ (1) the state, its agencies, and its corporations; ce, except an (2) the University of Alaska and its Board of Regents; Ming budget of (3) municipalities, school districts, and regional educational attendance areas, or l 15.13.100 r. mother political subdivision of the state; and ~`' ~ (4) an officer or employee of an entity identified in (1) - (3) of this subsection. xpenditures fo (b) Money .held by an entity identified in (a)(1) - (3) of this section may be used to ~levsion, radiq influence the outcome of an election concerning a ballot proposition or question, but only iat supports ~ .; ~`=if the funds have been specifically appropriated- for that purpose by a state law or a ;municipal ordinance. c) Money held by an entity identified in (a)(1) - (3) of this section may be used vertisement;;or,~ . (1) to disseminate information about the time and place of an election and to hold an ~rtify that this; ' 'election; (2) to provide the public with nonpartisan information about a ballot proposition or pproved by the uestion or about all the candidates seeking election to a particular public office. ? q :: (d) When expenditure of money is authorized by (b) or (c) of this section and is used to a d _ influence the outcome of an election, the expenditures shall be reported to the commission nongr~~u~, _ e by i ;- r individual is required to report under AS 15.13.040. (§ 24 ch ~ budget of $250 ~~ ._ ,' in the same manner as an '~ - ~ 48 SLA 1996) Sec. 15.13.150. Election educational activities not prohibited. This chapter ~- `does not prohibit a person from engaging in educational election-related communications ce o£business corpo-' - ;and activities, including .iberties Union, 978- E Hied, 528 U.S. 1153;- ~_~ (1) the publication of the date and location of an election; J69 (2000). (2) the education of students about voting and elections; ;' 13.040(d), (e) and (~) (3) the sponsorship of open candidate debate forums; 110, and this section he state's interest in `,` (4) participation in get-out-the-vote or voter registration drives that do not favor a ms and expenditures ,particular candidate, political party, or political position; ents are not particu- `~ (5) the dissemination of the views of all candidates running for a particular office. Life Comm. v. Miles; ~ ~ (§ 24 ch 48 SLA 1996) entities. -Compel- g the electorate with ~ Sec. 15.13.155. Restrictions on earned income and honoraria. (a) A candidate rruption and avoiding „for the state legislature, for governor, or for lieutenant governor, including an individual ~thering the data nec rive electioneering re campaigning as a write-in candidate for the office, may not ~nofAS 15.13.09Qan~1 ~ (1) seek or accept compensation for personal services that involves payments that are s. Alaska'Right to Life '~ - not commensurate with the services rendered taking into account the higher rates 9th Cir. 2006). -group entities. - °, generally charged by specialists in a profession; or ~~. 2 AAC 50.351 ALASKA ADMINISTRATIVE CODE 2 AA( 2 AAC 50.351. Independent expenditures.. _RepealE 5/14/80, Register 74; am 6/29/84, Register 90; repealed: Register 156) Editor's note: The substance of 2 AAC 50.351 was relocated to 2 AAC 50.270. 2 AAC 5®.352. Ballot measure activity. (a) A'person, incitid`` corporation or labor union, may make contributions to influEnc~ outcome of a ballot proposition. (b) A person who makes contributions to influence the outcini ballot proposition ~ ~~ (1) must report those contributions as required by AS 15 1~3` ' ~. and ~'~ (2) may not make {* (A) anonymous contributions; or (B) contributions using the name of another, as set o' 2 AAC 50.258. (c) A corporation, company, partnership, firm, association, oT•g<~n tion, business trust, labor union, or publicly funded entity mad r;` its contributions and expenditures under AS 1513.040(d) and (, an individual if (1) all contributions and expenditures to influence the outco-"~' a ballot measure election are made from the organization's ge;: day-to-day operating account; and (2) the organization does not assess, collect, pool, or solicit m~ or anything of value for the purpose of influencing a ballot me ,- election. (d) A corporation, company, partnership, firm, association, or: nation, business trust, labor union, or publicly funded entity that'. i not meet the requirements in (c) of this section must register report as a group. (e) An individual who makes expenditures to influence the out~~' of a ballot proposition election need not report those expenditures ifi individual makes them in accordance with AS 15.13.040(h)'. ~ (°I 1/7/2001, Register 157) ~~ Authority: AS 15.13.010 AS 15.13.040 AS 15.13.065"- ~. AS 15.13.030 2 AAC 5®.355. Loans. Repealed 1/4/86. 2 1~AC 5®.356. Ilse of public money. (a) Funds are speclficy appropriated for the purposes of AS 15.13.145(b) if the approprat body provides notice on the public record that the funds will-be used influence the outcome of an election. (b) In the absence of a specific appropriation, an officer or emplo of an entity who is identified in AS 15.13.145(a)(4) may. use mo 338 ~~ '`~: ~, I AAt~'~'~ Z AAC 50.357 ADMINISTRATION 2 AAC 50.361 ~peale "A tled ,•. held by that entity to communicate about a ballot proposition or _. question if the communication is made in the usual and customar Ef y .performance of the officer's or employee's duties. (c) li or the purposes of AS 15.13.145(c)(2), information is nonparti- ' san if it does not advocate a position in an election. Nonpartisan =information includes the official language of a ballot question a n,, I nc • . ~ , neutral ballot summary, or if provided for all candidates seeki influE~" , ng a ;particular office, the candidates' names, contact information or state- ~ ;;~: , ments. outw" _ (d) If an entity or individual identified in AS 15.13.145(a)(1)-(4) ~~~ uses money held by the entity to make an election-related expenditure -S 1 > ~ . , the expenditure must be. disclosed on a report of contributions ~~ or 'independent expenditures under AS 15.13.040(d) and (e) unless the expenditure is made only to disseminate information about the time °~ 'and place of an election or to hold an election. (Eff. 1/1/2001, Register ~~ s ;,~ t o~ 156) Authority: AS 15.13A10 AS 15.13.030 AS 15.13.145 _.~; y may ~ , d) ~ ~ 2 .SAC 5®.3 e'7. Co~altributions in the name of another. Re- pealed. (Eff. 1/4/86, Register 97; repealed 1/1/2001, Register 156) ~~ to out~a Edi.tor's note: The substance of 2 AAC lcin ¢ ~u _ 50.357 was relocated to 2 AAC 50.258. '' ' ~ ~ 2 AAC 5.360. 1V.laxnicipalilies. (a) If a municipality seeks to • ~~~ ~ ~ influence the outcome of an election, using budgeted municipal funds ` , ~ it shall report as an individual under AS 15.13.040(d) and (e). tioii ~ '. (b) All communications which are paid for by a municipality and ? ~'~~ ~ty~~th~ e ~ . which are related to an election are considered to be intended to re~st'e ~' influence the outcome of an election unless they are only notices of .the election or unless they are required by statute, charter, or ordi- ~. the o ~ nance. hture{ (c) The municipality shall file with the commission a list of candi- ~40(h dates and their mailing addresses within seven days fallowing the deadline for filing for municipal office. ~;~: (d) If a municipality seeks to influence the outcome of an election .13.Or, , .~? using funds contributed to it for that purpose, it shall register and " report as a group under AS 15.13.040(b) and (c) and AS 15.13.050 Vic, . (Eff. 5/16/76, Register 58; am 1/4/86, Register 97; am 8/22/97, Register ~~ 143) '' " SpE sz fl' ~pro.hi~i•` ~~ Authority: AS 15.13.010 AS 15.13A40 AS 15.13.090 AS 15.13.030 AS 15.13.050 1 be use ~ 2 ~~ 60.361. Reporting' by special interest ~'roups. Repealed ._ ___ y _;~~ 10/18/81. .: ~~ ~;, 339 ;% ~J Sponsored by: Oates Introduction: July 13, 2009 Public Hearing: July 27, 2009 Enactment: July 27, 2009 CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-005 A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING $500 TO MAKE EXPENDITURES THAT COULD INFLUENCE THE OUTCOME OF AN ELECTION CONCERNING ADVISORY BALLOT PROPOSITION #2 WHICH ASKS THE QUALIFIED VOTERS IF THE CITY SHOULD INCREASE THE SALES TAX FROM 4.0% TO 4.5% WITH THE UNDERSTANDING THAT THE ADDITIONAL FUNDS ARE EXPECTED TO BE IN AN AMOUNT SUFFICIENT TO COVER A PORTION OF THE PROPOSED LIBRARY/MUSEUM OPERATING AND CONSTRUCTION COSTS WHEREAS, in 2003, the community selected a new library/museum project as part of the Seward Centennial celebration to reach completion by 2012, the 100th anniversary of the incorporation of the city; and WHEREAS, the estimated cost of the new library/museum including planning, design, construction, project management, furniture and fixtures is $10 million; and WHEREAS, on June 22, 2009 Resolution 2009-054 was approved by the city council which will submit Advisory Proposition #2 to the qualified voters asking whether to increase the sales tax rate by 0.5% to fund operating and capital costs of the new library/museum, with the understanding that sales tax revenues cannot be dedicated for a specific purpose; and WHEREAS, a 0.5% increase in sales tax is expected to generate approximately $500,000 per year that could assist paying the annual general obligation (GO) bond payments; and WHEREAS, the intent for the increase in sales tax is expected to fund operating and capital costs associated with the construction and ongoing maintenance of a new library/museum; and WHEREAS, over $1 million has been committed to this project through private donations, grants, city contributions and professional in-kind services; and WHEREAS, the library/museum building committee plan includes raising $1 million from private and individual foundations and donations, and $4-5 million from state and federal funding; and WHEREAS, the remaining $5 million would come from general obligation (GO) bonds if approved by the voters; and ~~ CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-005 WHEREAS, the estimated annual debt service on general obligation (GO) bonds fora 25-year period with an assumed 5.75% borrowing rate is approximately $380,000 per year, with the remainder of the additional sales tax available to be used to pay for increased operating, repairs, and maintenance costs; and WHEREAS, choosing to increase the sales tax places the burden of the new library/museum capital and operating costs on all individuals who benefit from city services, whether they live outside the boundaries of the City of Seward or are visitors; and WHEREAS, the city may need to expend municipal funds in order to educate the public about this project; and WHEREAS, the city council has determined it is in the public interest this issue be submitted to the qualified voters of the city; and WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted municipal funds to influence the outcome of an election and require registering and reporting under AS 14.13.040 and AS 15.13.050; and WHEREAS, in order to educate the public in accordance with the provisions of 2AAC 50.360(b), the City Council must appropriate funds since the education process may influence the outcome of an election; and WHEREAS, under AS15.13.145, a municipality may not use money to influence the outcome of an election concerning a ballot proposition unless the funds have been specifically appropriated for that purpose by the elected body. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council hereby appropriates and authorizes for expenditure $500, if needed, from the city manager's training and education account # 1 O 1-1120-5160 to be used to influence the outcome of an advisory vote regarding a proposed increase in sales tax of 0.5%. Section 2. The City Council further directs and authorizes the city manager and other City officers, officials, and employees, as may be appropriate, to register and to complete and file all necessary reports, forms, and notices relating to election-related expenditures as required by law. Section 3. This ordinance shall take effect ten (10) days following enactment. ~'`l CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-005 ENACTED by the City Council of the City of Seward, Alaska this 27th day of July, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis City Clerk (City Seal) .,. Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor Corbridge, City Council Members ~. From: Jean Lewis, City Clerk ~~ ~~, Agenda Item: Expending public funds that could influence the outcome of an election - Librarv/Museum Sales Tax TnrrPacP Advisory Proposition #2 BACKGROUND & JUSTIFICATION: Advisory Proposition #2 will submit to the qualified voters the question of whether the city should increase the sales tax from 4.0% to 4.5% with the understanding that the additional funds are expected to be in an amount sufficient to cover a portion of the proposed Library/Museum operating and construction costs. AS 15.13.145 states that money held by a municipality may be used to influence the outcome of an election concerning a ballot proposition or question, but only if those funds have been specifically appropriated for that purpose by state law or municipal ordinance. The city foresees material possibly being disseminated by the Library/Museum Building Committee. Although the city is asking the qualified voters of the community to decide this issue, the city may find it needs to disseminate information on this subject to educate the public, therefore, this non-code ordinance authorizes the expenditure of public funds and provides the flexibility to expend funds if needed. Such information could influence the outcome of the election. The City is allowed to prepare and distribute neutral materials to educate the public on the proposition before them. However, under AS 15.13.145, a municipality may not use money to influence the outcome of an election unless the funds have been specifically appropriated for that purpose by the elected body. Since dissemination and postage would cost money, and the City may wish to educate the public on this matter, this non-code ordinance is needed to use budgeted municipal funds and follow the reporting requirements as stated in 2 AAC 50.360 and AS 15.13.140-155. 1NTF.NT~ To have budgeted funds available in case the city council found it needed to put out educational materials related to this matter and the new Library/Museum Project for Advisory Proposition #2. CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: . ~9 FISCAL NOTE: If needed, funds would come from the City Manager Training and Education account #101-1120- 5160. Approved by Finance Department: RECOMMENDATION: City Council introduce and enact Non-Code Ordinance 2009-005 appropriating funds for the purpose of possible expenditures to educate the public which could influence the outcome of an election concerning advisory ballot proposition #2, which would increase the sales tax from 4.0 to 4.5% with the understanding that the additional funds are expected to be in an amount sufficient to cover a portion of the proposed Library/Museum operating and construction costs. ~ry ~~ ~ . Sponsored by: Oates Introduction: July 13, 2009 Public Hearing: July 27, 2009 Enactment: July 27, 2009 CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-006 A NON-CODE ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING $500 TO MAKE EXPENDITURES THAT COULD INFLUENCE THE OUTCOME OF AN ELECTION CONCERNING BALLOT PROPOSITION #3 WHICH ASKS THE QUALIFIED VOTERS IF THE CITY SHOULD PURSUE THE ISSUANCE OF GENERAL OBLIGATION (GO) BONDS NOT TO EXCEED $5 MILLION DOLLARS TO FINANCE THE LIBRARY/MUSEUM CONSTRUCTION AND CAPITAL COSTS WHEREAS, in 2003, the community selected a new library/museum project as part of the Seward Centennial celebration to reach completion by 2012, the 100th anniversary of the incorporation of the city; and WHEREAS, the estimated cost of the new library/museum including planning, design, construction, project management, furniture and fixtures is $10 million; and WHEREAS, on June 22, 2009, Resolution 2009-053 was approved by the city council which will submit Proposition #3 to the qualified voters asking whether to incur debt and issue general obligation bonds not to exceed $5 million dollars to finance the construction and other capital costs of the Library/Museum Project; and WHEREAS, general obligation bonds may only be issued following approval by the qualified voters of the city; and WHEREAS, after raising half of the estimated total cost of the project from other sources, the remaining $5 million would come from the issuance of general obligation (GO) bonds; and WHEREAS, the estimated annual debt service on general obligation (GO) bonds fora 25-year period at an assumed 5.75% borrowing rate is approximately $380,000 per year; and WHEREAS, 2 AAC 50.356 and 2 AAC 50.360 allow for municipalities to seek budgeted municipal funds to influence the outcome of an election and require registering and reporting under AS 15.13.040 and AS 15.13.050; and WHEREAS, in order to educate the public in accordance with the provisions of 2AAC 50.360(b), the City Council must appropriate funds since the education process may influence the outcome of an election; and ~. CITY OF SEWARD, ALASKA NON-CODE ORDINANCE 2009-006 WHEREAS, under AS 15.13.145, a municipality may not use money to influence the outcome of an election concerning a ballot proposition unless the funds have been specifically appropriated for that purpose by the elected body. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Council hereby appropriates and authorizes for expenditure $500, if needed, from the city manager's training and education account # 101-1120-5160 that may be used to influence the outcome of the election for the purpose of educating the public on the issuance of general obligation bonds for the Library/Museum Project. Section 2. The City Council further directs and authorizes the city manager and other City officers, officials, and employees, as may be appropriate, to register and to complete and file all necessary reports, forms, and notices relating to election-related expenditures as required by law. Section 3. This ordinance shall take effect ten (10) days following enactment. ENACTED by the City Council of the City of Seward, Alaska this 27`'' day of July, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Jean Lewis City Clerk (City Seal) J~ Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor Corbridge, City Council Members --~ From: Jean Lewis, City Clerks '~, ...~-r Agenda Item: Expending public funds that could influence the outcome of an election -Library/Museum GO bond issuance Proposition #3 BACKGROUND & JUSTIFICATION: Proposition #3 will submit to the qualified voters the question of whether the city should pursue the issuance of general obligation (GO) bonds not to exceed $5 million dollars to finance the Library/Museum Construction and capital costs. The city foresees material being disseminated by the Library/Museum Building Committee. In the event the city found it needed to disseminate information on this subject to educate the public, this non-code ordinance authorizes the expenditure of public funds and provides the flexibility to expend funds if needed. Such information could influence the outcome of an election, therefore the city would need to follow state reporting requirements in 2 AAC 50.360 and AS 15.13.140-155. AS 15.13.145 states that money held by a municipality may be used to influence the outcome of an election concerning a ballot proposition or question, but only if those funds have been specifically appropriated for that purpose by state law or municipal ordinance. The City is allowed to prepare and distribute neutral materials to educate the public on the proposition before them. However, under AS 15.13.145, a municipality may not use money to influence the outcome of an election unless the funds have been specifically appropriated for that purpose by the elected body. If the city distributed materials, they would need to follow the reporting requirements as stated in INTENT: To have budgeted funds available in case the city council found it needed to put out educational materials related to this matter and the new Library/Museum Project for Proposition #3. CONSISTENCY CHECKLIST: Where applicable, this resolution/ordinance is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: If needed, funds would come from the City Manager Training and Education account # 101-1120- 5160. 33 Approved by Finance Department: RECOMMENDATION: ~~ City Council introduce and enact Non-Code Ordinance 2009-006 appropriating funds for the purpose of possible expenditures to educate the public which could influence the outcome of an election concerning ballot proposition #3, which pursues the issuance of general obligation (GO) bonds not to exceed $5 million dollars to finance the Library/Museum construction and capital costs. ~i Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-057 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ACCEPTING A GRANT IN THE AMOUNT OF $4,766.40 FROM THE ALASKA HIGHWAY SAFETY OFFICE FOR 2009 FOURTH QUARTER ASTEP DRIVING UNDER THE INFLUENCE (DUI) ENFORCEMENT CAMPAIGN AND APPROPRIATING FUNDS WHEREAS, the Seward Police Department has been awarded a Program Coordination Grant from the Alaska Highway Safety Office, in the amount of $4,766.40; and WHEREAS, the City is not required to provide any cash or in kind match; and WHEREAS, the use of these funds must be for the purpose of providing overtime saturation patrols by the Seward Police Department for the enforcement of DUI violations during July, August and September of 2009; and WHEREAS, these funds will be of essential assistance to the Seward Police Department in the enforcement of DUI violations. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to accept the 2009 ASTEP DUI Enforcement, Alaska Highway Safety Office grant in the amount of $4,766.40 and enter into a grant agreement. Section 2. Funding in the amount of $4,766.40 is accepted to grant revenue account no. 101-0000-4680-0200 and appropriated to the police department's overtime account, no. 101-1210- 5020. 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 13`h day of July, 2009. ~~ Agenda Statement Meeting Date: July 13, 2009 To: Phillip Oates, City Manager From: Tom Clemons, Chief of Police Agenda Item: Alaska Highway Safety Grant (ASTEP DUI `09 Fourth Quarter Enforcement) BACKGROUND & JUSTIFICATION: The Alaska Highway Safety Office, AHSO, has requested that the City of Seward continue to participate in the Alaska Strategic Traffic Enforcement Partnership, ASTEP, DUI Overtime Enforcement campaign by providing overtime saturation patrols. During selected holidays, the blitz campaign, and assigned weekends, the Seward Police Department will conduct high-visibility DUI enforcement patrols. AHSO has awarded a grant in the amount of $4,766.40 for July, August and September 2009. This program is a 100% grant funded project, with no local matching funds required. The terms of the grant and the grant budget are attached. INTENT: The intent of this grant is to save lives by arresting and punishing alcohol and drug impaired drivers and maintain current public perceptions of DUI enforcement issues. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: There is no local funding required to match these grant funds. Approved by Finance Department: ~~ /,~~~.-~c, RECOMMENDATION: City Council approve Resolution 2009-~, accepting a grant from the Alaska Highway Safety Office in the amount of $4,766.40, and appropriating funds. .~ i 0 : 7b f CC'i tS'itf4'J h'. C' `I ~iS I ~~ ~ ~; Notice to Proceed ~.._ .;, <<. ~~ _.. _. _ Grantee Name and Address: _ __ ._Sewarti Police Oepanment _ Lt. Louis Tiner State of Aiaskn t>epanment of Tntnsponntion ttnd Pttblic Fltcililics 3112 Cluutnel Ur NO l3ox 11.25OU hmeau AK 99R I I -25ft0 p' X17.4h,S.244(+ f 1f17-4155-4r)3l1 dot,aleska. gov/highwaysaf®fy __... _ "You ma _. _... _ y proceed with the activities for the Categories and speclflc Tasks enumerated below In the Funding Summary. Any activMles beyond the written scope and/or any costs above the price estimate in our Agreement require prior AHS4 approval and a Protect Revision. Actual cost underrun of the Contrad amount for any Category shall not routinely accumulate for other Categories. AWSO reserves the right to retain or reallocate any remaining funds resulting from such cost undemins. Thla NTP is cumulatt>he and K superttrr~dea sll prior NTPs M~ dtl8 Apneiement4 The AHSO Administrator for this NTP is: Cindy Cashon ieauso rot the htraa4rp envy AD078 F Podoy ao1.0 t) bY- ACOOpted for the Orantss by 6ipnature to Signature Name Cindy Cashen Date --.- _._ _.. Name. Lt.. Loult~Tiner FUNDING SUMMARY 'total Amount Approved for thb Nl'P S 4,788.40 Authorised Tasks Aa authorized fn the Progrem Coordination Grant from July 1 to September 30, 2009. Vehicle usage ie included et 58.00 p~ hour ae referenced in the Program CooMfn®tlon Qrant Collocation Code 24481924 Leda~r Code 301A09A2 Fr C n I rem b- Actbn Signature Pragrom Control AoeM _ Nemn• Kef AH80 uw only Program Cade 67870 Encumbrance Numea. Account Code 259ti1198 77438 7ota1 Amount Authorizfzd to Date $ to,l2e.eo NTP No: 4 ProJed No: 164AL 09-01-01 Project End pate: 9130/00 State of Alaska Department of Transportation and Public Facilities P.O. Box 112500; Rm #200 Juneau AK 98801 Ph: 807.465-2448 Fx: 907-485-4030 www.dot. alaska.gov/highweysafety Program Coordination Grant Impair®d Orlving Coordinator Federal runalnp rear: 2009 Alaska Strategic Traffic Enforcement 154AL 09-01-01 Partnership DUI Overtime Enlforcement Grant PurposelObJectlves In order to reduce deaths and injuries caused by impaired drivers and to increase compliance with Alaska's primary seat belt law, the Seward Police Department will conduct high-visibility seat belt and DUI enforcement as detailed in the Alaska Strategic Enforcement Partnership Enforcement Plan submitted to the Alaska Highway Safety Office in September 2008- The Seward Police Depgrtment agrees to participate in the following enforcement blitzes from October 1, 2008 through S®ptember 30, 2009. / Required DUI Enforcement: to include the major Wolidays Month-by-Month Breakdown (Refer to enforcement plan for detail of seat belt end DUI enforcement times): Month Hours - OUI Enforcement _ Monthly BudSet Jul 30 hrs DUI ., $ 1 607.40 Au ust 40 hrs DUI $ 21143.20 .-_ September 10 hrs DUI $ 535.80 Vehicle Usa a $6.00 per hour $ 480.00 Actual cost of overtime to includ® benefits is not to exceed the following amount: 64,786.40 including v®hicle usage. Activity covered by this grant must be completed by March 31, 2009. Reimbursement requests must be submitted to the Alaska Highway Safety Office no later then October 15, 2009. To receive reimbursement for personnel services the department must provide overtime she®ts, the hourly rates far each officer along with the activity sheets showing total hours being submitted for reimbursement. .~ 38 r. Expenses are detailed on page 2 of grant. Budget Summary: BUDGET CATEGORY BUDGET AMOUNT 100 Personal Services _ $ 4,288.40 200 Travel 8. Per piem 300 Vehicle Usa a $ 480.00 400 Commodities __~~_ _ 500 E ui ment TOTAL .. _.- ~ ~ ~ S 1 787.40 Signed: Pirojact * 164AiL 08.01-01 CC 24491924 LC..._ 30180982 .............. PJ 80255. PCiM Codo 57870...... EN ~ 2595168 Grantee's Project Director Date Governor's H afety Representativ® Date 39 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-058 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ACCEPTING A GRANT IN THE AMOUNT OF $5,004.72 FROM THE ALASKA HIGHWAY SAFETY OFFICE FOR 2009 THIRD AND FOURTH QUARTER ASTEP SEATBELT ENFORCEMENT CAMPAIGN AND APPROPRIATING FUNDS WHEREAS, the Seward Police Department has been awarded a Program Coordination Grant from the Alaska Highway Safety Office, in the amount of $5,004.72; and WHEREAS, the City is not required to provide any cash or in kind match; and WHEREAS, the use of these funds must be for the purpose of providing overtime saturation patrols by the Seward Police Department for the enforcement of seatbelt violations during April, May, June, July, August and September 2009; and WHEREAS, these funds are essential to the Seward Police Department's ability to enforce seatbelt violations. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to accept the 2009 ASTEP Seatbelt Enforcement, Alaska Highway Safety Office grant in the amount of $5,004.72 and enter into a grant agreement. Section 2. Funding in the amount of $5,004.72 is hereby accepted to grant revenue account no. 101-0000-4680-0200 and appropriated to the police department's overtime account, no. 101- 1210-5020. 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 13`" day of July, 2009. J ~. ~ O Agenda Statement Meeting Date: July 13`h, 2009 To: Phillip Oates, City Manager From: Tom Clemons, Chief of Police Agenda Item: Alaska Highway Safety Grant (ASTEP SEATBELT '09 Third and Fourth Quarter Enforcement) BACKGROUND & JUSTIFICATION: The Alaska Highway Safety Office, AHSO, has requested that the City of Seward continue to participate in the Alaska Strategic Traffic Enforcement Partnership, ASTEP, Seatbelt Overtime Enforcement campaign by providing overtime saturation patrols. During selected holidays, the blitz campaign, and assigned weekends, the Seward Police Department will conduct high-visibility Seatbelt enforcement patrols. AHSO has awarded a grant in the amount of $5,004.72 for April, May, June, July, August and September 2009. This program is a 100% grant funded project, with no local matching funds required. The terms of the grant and the grant budget are attached. INTENT: The intent of this grant is intended to reduce deaths and injuries by increasing compliance with Alaska's primary seat belt law. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: There is no local funding required to match these grant funds. Approved by Finance Department: r~2.~~c,~J ~i~~i,L,~,~, RECOMMENDATION: City Council approve Resolution 2009-~, accepting a grant from the Alaska Highway Safety Office in the amount of $5,004.72, and appropriating funds. 4 ~. State of Alaska Department of Transportation and Public Facilities 3132 Channel Dr PO Box 112500 Notice to Proceed JtmeauAK99811-2500 p:907-465-2446 f: 90765-4030 dot_alaska.gov/highwaysafety Grantee Name and Address: j Project Ti#le: Seward Poltce Department _____ ASTEP C10T Enforcement.. _ _ _ - Lt. Louis Tiner COS84266 You may proceed with the activities for the Categories and specific Tasks enumerated below in the Funding Summary. Any activities beyond the written scope andlor any costs above the price estimate in our Agreement require prior AHSO approval and a Project Revision. Actual cost underrun of the Contract Amount for any Category shall not routinely accumulate for other Categories. AHSO reserves the right to retain or reallocate any remaining funds resulting from such cost underruns. This NTP is cumulative and if supersedes all prior NTPs for Phis Agreemerrf. The AHSO Administrator for this NTP is: Cindy Cashen i Issued fore Contracting Ag cy per A OT&PF Po6cy #01 1.Q by: Acxepted for the Grantee by: j ~~~~ Signature Date Signature Date Name: Cindy Cas Name: Lt. Louis Tiner FUNDING SUMMARY Tota{ Amount Approved for this NTP Authorized Tasks Total Amount Authorized to Date $5,004.72 As au#horized in the Program Coordination Grant from April 1, 2009 to September 30, 2009. $7,864.56 VehiGe usage is included at $6.00 per hour as referenced in the Program Coordination Grant. AHSO use only Collocation Code Prooram Code NTP No: 3 24461910 57870 Project No: 402PT 09-08-03 Project End Date: 9!30/09 Ledger Code Encumbrance Number Account Code 30189982 2595182 77436 Project Control Progr~nming Action rl _ t ~~ , /L, ,% f~ C ~ ~-- Signature Date Program ControE Agent-Name: Bob Friend ~~ Department of Transportation and Public Facilaities P.O. Box 112500; Rm #200 Juneau AK 99801 Ph: 907-465-2446 Fx: 907-465-4030 www.dot.aiaska.gov/highwaysafety Program Coordination Grant Program Area: Project Coordinator: Seatbelt Enforcement Project Tifie: Project Number. Alaska Strategic Traffic Enforcement Partnership GIOT Overtime 402PT 09-06-03 Enforcement Grant Federal Funding Year: 2Q09 PurposetObjectives )n order to reduce deaths and injuries caused by impaired drivers and to increase compliance with Alaska's primary seat belt law, the Seward Police Department will conduct high-visibility seat belt and DUI enforcement as detailed in the Alaska Strategic Enforcement Partnership Enforcement Plan submitted to the Alaska Highway Safety Office in September 2008. The Seward Police Department agrees to participate in the following enforcement blitzes from October 1, 2008 through September 30, 2009. / Required DUI Enforcement: to include the major Holidays Month-by-Month Breakdown (Refer to enforcement plan for detail of seat belt and DUI enforcement times): Month nl ° Hours -- CIOT Enforcement Monthl Bud et ' ' Ma 8 hrs CIOT 8 hrs CLOT $ 428.64 $ 428 fi4 June 20 hrs CLOT . $ 1 071 60 Jul 20 hrs CIOT , . $ 1 071 60 Au ust 8 hrs GIOT , . $ 428 64 Se tember 20 hrs CLOT . $ 1 071 60 Vehicle Usa a $6.00 er hour , . $ 504.00 Actual cost of overtime to include benefits is not to exceed the following amount: $5,004.72 including vehicle usage. Activity covered by this grant must be completed by September 30, 2009. Reimbursement requests must be submitted to the Alaska Highway Safety Office no later than October 15, 2009. To receive reimbursement for personnel services the department must provide overtime sheets, the hourly rates for each officer along with the activity sheets showing total hours being submitted for reimbursement. Expenses are detailed on page 2 of grant. Budget Summary: BUDGET CATEGORY BUDGET AMOUNT 100 Personal Services $ 4,500.72 200 Travel & Per Diem 300 Vehicle Usa e $ 504.00 400 Commodities 500 E ui ment TOTAi_ $ 5,004.72 Project # 402PT 09-06-03 CC 24461910 LC 30189982 PJ 80227 PGM Code 57870 RSA # Signed: Grantee's Project Director Date ' ~ ,~ Governo-'s H Safety Representative Da e ~~ Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-059 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO SIGN AN EXTENSION OF A SPECIAL SERVICES CONTRACT BETWEEN THE CITY OF SEWARD AND THE DEPARTMENT OF PUBLIC SAFETY PROVIDING DISPATCH AND CLERICAL SERVICES TO PUBLIC SAFETY EMPLOYEES IN THE SEWARD AREA FOR FORTY EIGHT THOUSAND AND FIVE HUNDRED DOLLARS 048,500.00) WHEREAS, the City of Seward has entered into an agreement for the past thirteen (13) fiscal years to provide dispatch and clerical services to Alaska State Troopers and Fish and Wildlife Protection Officers in the Seward Community; and WHEREAS, the amount of compensation for dispatch services has been Forty Eight Thousand and Five Hundred Dollars ($48,500.00); and WHEREAS, the attached extension would continue the services at the current rate through .June 30, 2010. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is hereby authorized to sign an extension of a Special Services contract between the City of Seward and the Department of Public Safety providing dispatch and clerical services to public safety employees in the Seward area for Forty Eight Thousand and Five Hundred Dollars ($48,500.00). Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 13th day of July 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor ~J Agenda Statement Meeting Date: July 13, 2009 From: Tom Clemons, Chief of Police Through: Phillip Oates, City Manager Agenda Item: Extension of Special Services Contract between the Department of Public Safety and the City of Seward BACKGROUND & JUSTIFICATION: The City of Seward has entered into an agreement for the past thirteen (13) fiscal years to provide dispatch and clerical services to the Alaska State Troopers and Fish and Wildlife Protection Officers in the Seward community. The amount of compensation for that contract has been Forty-eight Thousand and Five Hundred Dollars ($48,500.00). The attached extension would continue the services at the current rate through June 30, 2010. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan, and City Council Rules of Procedures. Other: FISCAL NOTE: The City of Seward will receive the sum of Forty-eight Thousand and Five Hundred Dollars ($48,500.00) from the State of Alaska for this contract. These funds have been anticipated and are already included in the 2009 budget. Approved by Finance Department RECOMMENDATION: Recommend approval of Resolution 2009=~ authorizing the City Manager to sign an extension of a Special Services contract between the City of Seward and the Deparhnent of Public Safetyproviding dispatch and clerical services to public safety employees in the Seward area for Forty-eight Thousand and Five Hundred Dollars ($48,500.00). ~6 ALASKA DEPARTMENT OF PUBLIC SAFETY CONTRACT FOR SPECIAL SERVICES July 1, 2009 to June 30, 2010 GENERAL PROVISIONS The parties. The parties to this contract are the Alaska Department of Public Safety (hereinafter referred to as the "Department") and the City of Seward (hereinafter referred to as the "City"). Sole Agreement. The City and the Department undertake this contract under the terms set forth below. This contract is the sole agreement between the parties relating to special services, and there are no other agreements, express or implied. Effective Date/Termination/Amendments. This contract is effective July 1, 2009 and continues in force until June 30, 2010. Either party may terminate the agreement with thirty (30) days written notice to the other party. This agreement may be amended by written agreement of the parties. The Department will pay the City for services provided in accordance with, and under the terms of, this contract. Payments will be made quarterly in the amount of $12,125.00, for a total of $48,500.00. Payment for services provided under this contract will be made in four payments in the amount of and covering the period indicated below: Period Covered Amount Payment Process Can Be Initiated 07/01 /09 - 09/30/09 $12,125.00 10/01 /09 10/01/09 - 12/31/09 $12,125.00 01/01/10 01/01/10 - 03/31/10 $12,125.00 04/01/10 04/01/10 - 06/30/10 $12,125.00 06/01/10 12 Month Total $48,500.00 2. The City will provide and perform the services specified in this contract to the satisfaction of the Department, in support of Department personnel and operations. SPECIFIC PROVISIONS 3. The City will: a. Provide full dispatch services, APSIN/NCIC services, telephone answering and message taking services, and public reception services relative to Department business 24 hours each day for the Department and Department Personnel working in vehicle, vessel or foot, in aircraft or any other means in the greater Seward and Lower Kenai Peninsula Region; Page 1 of 2 ~ ~~ ALASKA DEPARTMENT OF PUBLIC SAFETY CONTRACT FOR SPECIAL SERVICES July 1, 2009 to June 30, 2010 b. Provide full clerical services and support to Department personnel, including access to and use of the office copying machine and fax machine; to include typing of criminal complaints, transcription of taped statements, typing services as needed for completion of police reports; c. Permit continued access to and utilization of professional facilities and equipment instrumental to the overall efficient and effective operation of law enforcement and emergency response component, i.e.; squad room, kitchen, weight and exercise room, interview rooms, storage rooms, evidence processing room and equipment, a secure locked evidence room accessible only by authorized AST personnel, Data Master, video and training material, other general building facilities including parking for state vehicles, ATV and snow machines. d. Permit continued transport and security of prisoners from the Seward City Jail to Seward Court for hearings and arraignments IN WITNESS OF THIS AGREEMENT, the undersigned duly authorized officers have subscribed their names on behalf of the City and the Department respectively. For the City of Seward: By Printed Name Official Title Date For the Department of Public Safety: By Printed Name Official Title Date Page 2 of 2 4 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-060 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ACCEPTING CAPITAL FUNDING IN THE AMOUNT OF $30,581.00 FROM THE STATE OF ALASKA IN ORDER TO INSTALL A NEW ROOF OVER THE STEPS AND EXTERIOR DOOR OF THE SEWARD COMMUNITY JAIL, AND APPROPRIATING FUNDS WHEREAS, the City of Seward Police Department submitted a request to the State of Alaska Department of Corrections requesting capital funding to install a new roof over the Seward Community Jail's steps and replace the exterior door ;and WHEREAS, these capital projects were funded by the Legislature in the State of Alaska's Capital Bill, Chapter 29; SLA2008; Section 13; Page 51: Line 8; and WHEREAS, the City of Seward Community Jail received a capital contract award from the Department of Corrections to receive $30,581.00; and WHEREAS, the contract says that "if there are any surplus funds available after the listed items have been procured, the remaining funds may be used for other maintenance, repair and renovation, fire, life safety and security concerns"; and WHEREAS, these funds do not require a local match. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section l: The City Manager and/or City Council is authorized to enter into an agreement accepting capital funds. Section 2: Funding in the amount of $30,581.00 is hereby accepted from State grant fund account 103-1030-4680-0200 and appropriated to the Capital Acquisition Fund repairs account no. 103-1030-5380, for the purpose ofjail-related capital repairs. 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 day 13`" day of July, 2009. ~~ Agenda Statement Meeting Date: July 13, 2009 To: Phillip Oates, City Manager From: Tom Clemons, Chief of Police Agenda Item: Accepting Capital funds from the State of Alaska, ~• Department of Corrections for Repairs to the Community Jail BACKGROUND & JUSTIFICATION: The City of Seward has received a Capital Contract from the State of Alaska to receive capital funds in the amount of $30,581.00 from the Department of Corrections. Funds will be used to install a new roof over the downstairs exterior steps and exterior door of the Jail. CONSISTENCY CHECKLIST: Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: There is no match required to accept these funds. Approved by Finance Department J'~ ~ ~ ~1L~ RECOMMENDATION: Recommend approval of Resolution 2009- accepting $ 30,581.00 of Capital funding from the State of Alaska, Department of Corrections to make repairs to the exterior door and stairway of the Seward Community Jail. 50 STATE OF ALASKA DEPARTMENT OF CORRECTIONS LOCAL COMMUNITY JAILS PROGRAM FY2009 CAPITAL PROJECT COMMUNITY JAIL NAME: Seward Community Jail AMOUNT OF CAPITAL FUNDS: $ 30,581.00 The following is a breakdown of the maintenance, repair and renovation, fire and life safety, and security equipment that has been approved by the Department of Corrections for expenditure by the City of Seward, Alaska. ~ New exterior door • Cover the south side steps These capital projects were funded by the Legislature in the State of Alaska's Capital Bill, Chapter 29; SLA 2008; Section 13; Page 51; Line 8. The appropriation request to the Legislature was based upon the capital budget information that you provided to the Department of Corrections. If there are any surplus funds available after the listed items have been procured, the remaining funds may be used for other maintenance, repair and renovation, fire, life safety, and security concerns, as long as the intended purchase relates to the confinement of the State of Alaska's prisoners. Please sign below and return the original copy to: Alaska Department of Corrections Attn: Leslie Houston, Director Administrative Services P.O. Box 112000 Juneau, Alaska 99811-2000 Upon receipt of the signed copy of this Capital Contract, the Department of Corrections will issue a check in the amount of $30,581.00 to the City of Seward, Alaska. For the Borough/City: By: ,~ ~i rlanc2 ~i~~ G~ Official Title For the Department of Corrections By: Director, Administrative Services Official Title Date:_ 5'~S X09 Date: 5~ Department of Corrections Community Jails I Capital Requests Community Jail: Seward Community Jail Project Manager. Sgt. Deland Contact Phone Number.' (907)224-2710 Contact E-mail: sdeland@cityofseward.net Capital Item: New exterior door Estimated Cost: Door cost $2,400. Type of Capital Item: ^ Maintenance ® Repair ^ Equipment ^ Other (Detail) Labor Brief Description: The south side exterior door is rusting out, won't close properly and has to be slammed shut. This poses a great security risk. It should be replaced. Version 10242007 ~ 2 Pege 9 Department of Corrections Community Jails /Capital Requests Community Jail: Seward Community Jail Project Manager.• Sgt. Deland Contact Phone Number.• (907)224-2710 Contact E-mail: sdeland@cityofseward. net Capital Item: Cover the south side steps Estimated Cost: Roof Cost $27,249.60. Engineering cost $2,724.96 Type of Capital Item: ^ Maintenance ® Repair ^ Equipment ^ Other (Detail) Labor Total $ 29,974.56 ~jU ~ v Brief Description: We need to install a new roof over the stairwell to keep the stairs free from snow and ice for the safety of the officers and detainees. The roof would also keep the door at the bottom of the steps from rusting out. Over the last few years the door had to be replaced least twice. Version 10242007 Page 10 Sponsored by: Administration CITY OF SEWARD, ALASKA RESOLUTION 2009-061 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA REQUESTING THAT THE STATE OF ALASKA EXEMPT FLOOD MITIGATION PROJECTS IN THE SEWARD AREA FROM THE GRAVEL ROYALTY FEE, AS IT APPLIES TO ALL FLOWING WATERS INTO RESURRECTION BAY, IN THE VICINITY OF SEWARD ALASKA WHEREAS, the Seward Bear Creek Flood service area, Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area; and WHEREAS, the State of Alaska Department of Natural Resources charges a mineral resources extraction royalty fee of $3.25 per cubic yard for gravel; and WHEREAS, this extraction royalty fee makes flood control projects more expensive and cost prohibitive; and WHEREAS, charging a royalty fee for gravel extraction for flood mitigation projects is contrary to protecting public health and safety; and WHEREAS, stream bed loading due to sediment deposits increase the frequency of flooding in the Seward area; and WHEREAS, the Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough and the City of Seward are working towards stream bed load removal and other flood control options in the Seward area; and WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force voted on April 15, 2009 in support of the State of Alaska exempting flood mitigation projects in the Seward Area from the gravel royalty fee, as it applies to all flowing waters into Resurrection Bay, in the vicinity of Seward, Alaska and requested other legislative bodies do the same; and WHEREAS, the Seward Port and Commerce Advisory Board, the Seward Planning and Zoning Commission and the Seward Bear Creek Flood Service Area Board have voted unanimously in support of this request. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. All flowing waters into Resurrection Bay in the vicinity of Seward, Alaska are continually filling with sediment and debris that must be removed to lessen the flood events in the Seward area. Section 2. The gravel deposits in these streams need to be removed regularly to ensure the economic viability of the community as well as ensure public health and safety. ~'~ CITY OF SEWARD, ALASKA RESOLUTION 2009-061 Section 3. Council requests that the State exempt flood mitigation projects in the Seward gravel royalty fee for area from its gravel extraction fee. Section 4. Copies of this resolution shall be sent to Honorable Governor Sarah Palin, Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner, Representative Mike Chaenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton, and Commissioner of Alaska Department of Natural Resources Tom Irwin. Section 5. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, this 13`h day of July, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor AYES: NOES: ABSENT: ABSTAIN: VACANT: ATTEST: Jean Lewis City Clerk, CMC (City Seal) Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor and Council From: Community Development Director Christy Terry Through: City Manager Phillip Oates Agenda Item: Requesting that the State of Alaska Exempt Flood Mitigation Projects in the Seward Area from the Gravel Royalty Fee, as it Applies to All Flowing Waters into Resurrection Bay, in the Vicinity of Seward, Alaska BACKGROUND & JUSTIFICATION: The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear Creek Flood Service Area. The Task Force has made recommendations to address important flood mitigation items and has requested legislative support from the local boards, commissions, the Seward City Council and the Kenai Peninsula Borough Assembly. The Seward Bear Creek Flood Service Area Board, Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area. The State of Alaska Department of Natural Resources charges a mineral resources extraction royalty fee of $3.25 per cubic yard for gravel regardless of it being used for flood mitigation. This extraction royalty fee makes flood control projects more expensive, cost prohibitive and creates a situation where the gravel is more expensive to remove than its value. This policy of charging a royalty fee for gravel extraction for flood mitigation projects is contrary to protecting public health and safety. The reality is that stream bed loading due to sediment deposits increase the frequency of flooding in the Seward area. The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough and the City of Seward are working towards stream bed load removal and other flood control options in the Seward area. The Kenai Peninsula Borough Flood Plain Task Force identified this issue as an important item to implement in order to address the flood plain issues in this area. The Task Force voted on Apri115, 2009 in support of the State of Alaska exempting flood mitigation projects in the Seward Area from the gravel royalty fee, as it applies to all flowing waters into Resurrection Bay, in the vicinity of Seward, Alaska. At the request of the Kenai Peninsula Borough Assembly, copies of this resolution shall be sent to Honorable Governor Sarah Paain, Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner, Representative Mike Chaenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton, and Commissioner of Alaska Department of Natural Resources Tom Irwin. 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: N/A Approved by Finance Department: ~~ RECOMMENDATION:~~ Approve Resolution 2009- Requesting that the State ofAlaska Exempt Flood Mitigation Projects in the Seward Area fro the Gravel Royalty Fee, as it Applies to All Flowing Waters into Resurrection Bay, in the Vicinity of Seward, Alaska. 5 "l Introduced by: Date: Action: Vote: KENAI PENINSULA BOROUGH RESOLUTION 2009-044 Long, Mayor 05/19/09 Adopted as Amended 9 Yes, 0 No, 0 Absent A RESOLUTION REQUESTING THAT THE STATE OF ALASKA EXEMPT FLOOD MITIGATION PROJECTS IN THE SEWARD AREA FROM THE GRAVEL EXTRACTION FEE, AS IT APPLIES TO ALL FLOWING WATERS INTO RESURRECTION BAY, IN THE VICINITY OF SEWARD, ALASKA WHEREAS, the Seward-Bear Creek Flood Service Area and the Kenai Peninsula Borough are working to lessen impacts to flooding in the Seward area; and WHEREAS, the State of Alaska Department of Natural Resources charges a mineral resources extraction fee of $3.25 per cubic yard for gravel; and WHEREAS, this extraction fee makes flood control proj ects more expensive and cost prohibitive; and WHEREAS, charging an extraction fee for gravel extracted for flood mitigation projects is contrary to protecting public health and safety; and WHEREAS, streambed loading due to sediment deposits increase the frequency of flooding in the Seward area; and WHEREAS, the Seward-Bear Creek Flood Service Area Board and the Kenai Peninsula Borough are working toward streambed load removal and other flood control options in the Seward area; and WHEREAS, on April 1, 2009, the Flood Plain Task Force adopted a resolution recommending that the State of Alaska exempt flood mitigation property from the gravel extraction fee; and WHEREAS, on May 18, 2009, the Seward-Bear Creek Flood Service Area considered this resolution and recommended adoption by unanimous consent; NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH: SECTION 1. That all flowing waters into Resurrection Bay in the vicinity of Seward, Alaska are continually filling with sediment and debris that must be removed to lessen the flood events in the Seward area. Kenai Peninsula Borough, Alaska Resolution 2009-044 Page 1 of 2 ~~ SECTION 2. The gravel deposits in these streams need to be removed regularly to ensure the economic viability of the community as well as ensure public health and safety. SECTION 3. That the Kenai Peninsula Borough Assembly requests that the State exempt flood mitigation projects in the Seward area from its gravel extraction fee. SECTION 4. The Kenai Peninsula Borough Assembly requests that other concerned local boards and commissions pass similar declarations in support of this resolution. SECTION 5. That copies of this resolution shall be sent to the Honorable Governor Sarah Palin, Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner, Representatives Mike Chenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton, Commissioner of Alaska Department of Natural Resources Tom Irwin, Kenai Peninsula Borough Road Service Area Board, Seward-Bear Creek Flood Service Area Board, and the Kenai Peninsula Borough Planning Commission. SECTION 6. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 19TH DAY OF MAY 2009. Milli Martin, Assembly President ATTEST: Johni Blankenship, Borough Clerk Yes: Fischer, Knopp, Long, Pierce, Smalley, Smith, Sprague, Superman, Martin No: None Absent: None Resolution 2009-044 Kenai Peninsula Borough, Alaska Page 2 of 2 ~ :J SECTION 2. The gravel deposits in these streams need to be removed regularly to ensure the economic viability of the community as well as ensure public health and safety. SECTION 3. That the Kenai Peninsula Borough Assembly requests that the State exempt flood mitigation projects in the Seward area from its gravel extraction fee. SECTION 4. The Kenai Peninsula Borough Assembly requests that other concerned local boards and commissions pass similar declarations in support of this resolution. SECTION 5. That copies of this resolution shall be sent to the Honorable Governor Sarah Palin, Senators Con Bunde, Albert Kookesh, Gary Stevens, and Tom Wagoner, Representatives Mike Chenault, Mike Hawker, Kurt Olson, Woodie Salmon, and Paul Seaton, Commissioner of Alaska Department of Natural Resources Tom Irwin, Kenai Peninsula Borough Road Service Area Board, Seward-Bear Creek Flood Service Area Board, and the Kenai Peninsula Borough Planning Commission. SECTION 6. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 19TH DAY OF MAY 2009. ATTEST: Johni Blankenship, Borough Clerk Milli Martin, Assembly President Yes: Fischer, Knopp, Long, Pierce, Smalley, Smith, Sprague, Superman, Martin No: None Absent: None Resolution 2009-044 Page 2 of 2 o Kenai Peninsula Borough, Alaska Sponsored by : Administration CITY OF SEWARD, ALASKA RESOLUTION 2009-062 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA REQUESTING THAT THE STATE OF ALASKA REVOKE ITS MARCH 20, 2006 NAVIGABILITY DETERMINATION AS TO SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE VICINITY OF SEWARD, ALASKA WHEREAS, the State of Alaska Department of Natural Resources has changed positions on the issue of navigability on several occasions; and WHEREAS, the Seward Bear Creek Flood Service Area, the Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area; and WHEREAS, the State of Alaska Department of Natural Resources (DNR) charges a royalty fee on all gravel materials removed from these areas; and WHEREAS, this royalty fee makes flood control projects more expensive and cost prohibitive; and WHEREAS, the Bureau of Land Management recommends that all water bodies, with the exception of Bear Lake, be considered administratively non-navigable in T.1N R. lE, T. 1N R. 1 W, T.2N R.1 W, T.1 S R. 1 W, T. 1 S R.1 E; and WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods; and WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force voted unanimously on April 1, 2009 in support of the State of Alaska revoking the navigability determination on Salmon Creek, Fourth of July Creek and Sawmill Creek and requested other legislative bodies do the same; and WHEREAS, the Seward Port and Commerce Advisory Board, the Seward Planning and Zoning Commission and the Seward Bear Creek Flood Service Area Board have all voted unanimously in support of this request. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. Council requests the State of Alaska revoking its March 20, 2006 navigability determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the vicinity of Seward, Alaska. Section 2. Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as defined by and in to the Daniel Ball test, best survey practices, and are not subject to the submerged land act, which, according to State of Alaska policy on Navigability, on the website ~i CITY OF SEWARD, ALASKA RESOLUTION 2009-062 http://dnr.alaska.gov/mlw/nav/nav~olicy.htm, is the accepted and correct standard for determining navigability. Section 3. The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients as expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections. Section 4. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, this 13`h day of July, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor AYES: NOES: ABSENT: ABSTAIN: VACANT: ATTEST: Jean Lewis City Clerk, CMC (City Seal) 62 Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor and Council From: Community Development Director Christy Terry Through: City Manager Phillip Oates Agenda Item: Requesting that the State of Alaska Revoke its March 20, 2006 Navigability Determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, Allocated in the Vicinity of Seward, Alaska BACKGROUND & USTIFICATION• The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear Creek Flood Service Area. The Task Force has made recommendations to address important flood mitigation items and has requested legislative support from the local boards, commissions, the Seward City Council and the Kenai Peninsula Borough Assembly. The State of Alaska Department of Natural Resources has changed positions on the issue of navigability on several occasions. The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area. Additionally, the State of Alaska Department of Natural Resources (DNR) charges a royalty fee on all gravel materials removed from these areas which makes flood control projects more expensive and cost prohibitive. If approved, this resolution will be sent to Natural Resource Manager Scott Ogan in support of the letter sent by Borough Mayor David Carey on Apri17, 2009. Currently, the Bureau of Land Management recommends that all water bodies, with the exception of Bear Lake, be considered administratively non-navigable in T.1N R. lE, T. 1N R. 1 W, T.2N R.1W, T.1SR. 1W, T. 1S R.lE. Also, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods. There are three creeks in our area that have been recently reclassified as navigable that should be taken off the 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: N/A Approved by Finance Department: RECOMMENDATION: Approve Resolution 2009-062 Requesting that the State of Alaska Revoke Its march 20, 2006 Navigability Determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek. 63 Introduced by Date: Action: Vote: KENAI PENINSULA BOROUGH RESOLUTION 2009-061 Long at the Request of the Flood Plain Task Force 07/07/09 A RESOLUTION URGING THE STATE OF ALASKA RECOMMEND THAT SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE VICINITY OF SEWARD, ALASKA BE DEEMED NON-NAVIGABLE WHEREAS, the State of Alaska Department of Natural Resources (DNR) has changed positions on the issue of navigability on several occasions; and WHEREAS, the Seward-Bear Creek Flood Service Area (SBCFSA) and the Kenai Peninsula Borough are working to reduce impacts to flooding in the Seward area; and WHEREAS, the DNR charges a royalty fee on all gravel materials removed from areas defined as navigable; and WHEREAS, this fee makes flood control projects more expensive and cost prohibitive; and WHEREAS, the Bureau of Land Managernent recommends that all water bodies, with the exception of Bear Lake, be considered administratively non-navigable in T1N R1E, T1N R1 W, T2N R1 W, T 1 S Rl W, T 1 S R1 E, Seward Meridian, State_ of Alaska; and WHEREAS, DNR policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods as a test of navigability. NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH: SECTION 1. That Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as defined by and in the Daniel Ball test and best survey practices, and are not subject to the Submerged Lands Act which, according to State of Alaska policy on navigability on the website http://dnr.alaska.gov/mlw/nav/nav~olicy.htm, is the accepted and correct standard for determining navigability. Kenai Peninsula Borough, Alaska Resolution ?009-061 Page 1 of 2 64 SECTION 2. The March 20, 2006 Recommendation of Navigability letter from DNR refers to extreme gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients as expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections. SECTION 3. That based on the above information and findings established in a previous determination the assembly respectfully urges the DNR to determine these streams to be not navigable. SECTION 4. Copies of this resolution shall be sent to Governor Sarah Palin, Commissioner Tom Irwin, Senate President Gary Stevens, Senator Thomas Wagoner, House Speaker Mike Chenault, Representative Kurt Olson, and Representative Paul Seaton. SECTION 5. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH DAY OF JULY, 2009. Milli Martin, Assembly President ATTEST: Johni Blankenship, Borough Clerk Yes: No: Absent: Resolution 2009-061 Page 2 of 2 Kenai Peninsula Borough, Alaska i ~~ SECTION 2. The March 20, 2006 Recommendation of Navigability letter from DNR refers to extreme gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients as expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections. SECTION 3. That based on the above information and findings established in a previous determination the assembly respectfully urges the DNR to determine these streams to be not navigable. SECTION 4. Copies of this resolution shall be sent to Governor Sarah Palin, Commissioner Tom Irwin, Senate President Gary Stevens, Senator Thomas Wagoner, House Speaker Mike Chenault, Representative Kurt Olson, and Representative Paul Seaton. SECTION 5. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH DAY OF JULY, 2009. Milli Martin, Assembly President ATTEST: Johni Blankenship, Borough Clerk Yes: No: Absent: Resolution 2009-061 Page 2 of 2 ~C Kenai Peninsula Borough, Alaska Sponsored btu : Administration CITY' OF SEV4•`ARD, ALASKA !'CANNING AND 7,ONING COA9iVIISSIUN "'~ RESOLUTION 21149-12 A RESOLUTION SUPPORTING A CO[1NC:IL RECOMMENDATION THAT THE STATE OF ALASKA REVOKE !TS MARCII 24, 21N16 NAVIGABILITY DE"I'ERM[NATIUNAS TU SALMON CREEK, FOURTH OF JULY CREl~,K ANll SAWMILL C12EEK, ALL LUCATEll IN THE t'IC1N[TY OF SEWAI2D, ALASKA WHERII:AS, The State of Alaska l)epartrncnt of Natural Resources has changed positions nn the issue of navigability on several occasions; and WHF,REAS, The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough turd the City of Seward ar•e working to lessen impacts to flooding in the Seward area; and VVIIEREAS, The State of Alaska Department of~ Natural kesources (DNIZ) charges a royalty 1'cc on all gravel materials removed tram these areas; and WHEREAS, 'this royalty tee makes hood control projects nu.~re expensive and cost prohibitive; and W'fIEREAS, 'I'hc Bureau of Land Management recommends that all water bodies. with the exception of Bear Lake, be considered administratively non-navigable in •1'.l N K. 1 [=, "C 1N R. I W, T.2N R.1 W, T.I SR. l W, "T. ]S It.l I~:; and WHERI~:AS, Alaska DNR policy interprets the Daniel Ball test as rcyuiring the water body to be usable tts a highway for the transportation of people or goods; ttnd WHEREAS, the Kenai Peninsula Borough Flood Plain "l ask Force voted unanimously on April I, 2009 in support of the State of Alaska revoking the navigability determination on Salmon Creek, i~ourth of•July Creek and Sawmill Crcck. NOW THEREFORE, BE IT RESU[:VED BY THE PLANNING AN1) ZONING C'UMNIlSSIUN that: Section 1. Council support the State ol~Alttska's revoking its March 20. 2006 navigability determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the ~ icinity of Seward, :'\laska. Section 2. That Salmon Creek, Fourth of .lul,y Creek and Sawmill Creek arc not navigable, as defined by and in to the Daniel Ball test, best survey practices, and arc not subject to the submerged land act, which, accordin6 to State of Alaska policy un Navigability, on t6~ website http:;idnr.alaska.gov/mlw~'navr'nav policy.htttt, is the accepted attd cprr•ect standard for ..._ determining navigability. Section 3. The March 20.2(.)06 Determination of Navigability rclcrs to extreme •~~ Planning and Zoning C'ommiss~on Resolution 2U(.)~~-l Z rage ? of 2 gradients as conclusive evidence of non-navigability on Spruce Creek. Ho~~ever, all of the creeks listed as navigable in the 20(}Fi determination contain reaches ~~(~thcse same "Lxtrerne' gradients as expressed in percent s{ope derived t'rom L{ U.~1R d~itaset 20Ub and pertinent crass sections. Section ~. 'T11is resolution Shall t:~ke etiect immediately upon its adoption. PASSED AND ApPRUVED by the I'lannin~ and Zoning Commission this 19`'' da}' of May, 2Q09. Tf Ili; CITY 4T SI:WARD, ALASKA .~ r Sandie Nnach' Chair AYF',S: Ecklund. I leinrich, McClure. Morgan, Roach', Stautl~er NOF,S: None ABSLN"I': ~ i~c Aliti~ii\lN: None VAC'AN ~I': Une ATTEST: ~_~ ,,.._,, 's~,......~,~~rr .Jean Lctivis ~•~~ -• .~ ~- ,. City Clerk, C;MC ;~± _,. . ~ ~''; (.City Seal) '''••qrE OF f-~p+•'~ Sponsored by : Adtniizistration CITY OF SEWARD, ALASKA POKT AND COMMERCE ADVISORY BOARD RESOLUTION 2009-OS A RESOLUTION SUPPORTING A COUNCIL 12ECOMMENDATION THAT THF, STATE OF ALASKA REVOKE ITS MARCH 20, 20D6 NAVIGABILITY DETERMINATION AS TO SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREI/K, ALL LOCATED IN TFIE VICINITY OF SEWARD, ALASKA WHEREAS, the State of Alaska Department of Natural Resources has changed positions on the issue of navigability on several occasions; and WHEREAS, the Seward Bear Creek Flood service area, the Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area; and WHEREAS, the State of Alaska Department of Natural Resources (DNR) charges a royalty fee on all gravel materials removed from these areas; and WHEREAS, this royalty fee makes flood control projects more expensive and cost prohibitive; and WHEREAS, the Btveau of Land Management recommends that all water bodies, with the exception of Bear Lake, be considered administratively non-navigable in T.1N R. 1 E, T. 1N R 7 W T_2N R.1 W, "1'.1 SR. 1 W, T. 1 S R.1.E; and WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods; and WHEREAS, the Kenai Peninsula Borough Flood Plain Task Farce voted unanimously on April 1, 2009 in support of the State of Alaska revoking the navigability determination on Salmon Creek, Fourth of July Greek and Sawn>ill Creek. 1!'OW THEREFORE, BE IT RESOLVED BY THE PORT tL'~1D COMMERCE ADVISORY BOARD: Section 1. Recommends Council support the State of Alaska's revoking its March 20, 2006 navigability determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the vici~uty of Seward, Alaska. Section 2. That Salmon Creek, Fourth of July Creek and Sawmill Creek aze not navigable, as defined by and in to the Daniel Ball test, best survey practices, and are not subject to the submerged land act, which, according to State of Alaska policy on Navigability, on the website http;//dnr.alaska.gov/mlw/nav/nav_policy.htm, is the accepted and correct standard for determining navigability. Section 3. The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks ~}. C'i!y of Sex:m•d, Alctskn Pori cmcl Co+nnrercre ~i~lrisorry $onrd eblinulca• cbiur h ~UU9 tiolumc 3, Pnge 58 New Business- none Resolution 2009-04, Recommending Council Approval of PACAB Priorities from Api-i12009 to Apri12t110 Motion (SchaefermeyerlTougas) Approve Resolution 2009-04 Oliver would Gke to see the AARV higher on the priorities list. Including that the Chancellor ofthe University will be visititg Seward the 23'x' and 24`'+ of July to see SMIC and SeaLife center. A discussion nn the wording of the priorities list #6 and the infrastructure to support the vessel. The job ~f the board is to describe how to avoid problems and present the best case scenano. Amendment to Resolution 2009-04 section 1. Priorities # 6 to read: AARY'-Iderrtify,~necific tii.avs ro secure hame porting if2 Se~i~ctrd. 3lotion (Butts!()liver} Motion Passed Approve Resolution 2009-04 Unanimous Consent yes Resolution 2009-05, Supporting a Council Recommendation that the State of Alaska revoke it's March 2(I, 2006 Navigability Determination as to Salmon Creek, Fourth of July C;rcek and Sa~t~mill Creek, All Located in the Vicinity of Seward, Alaska Commwiity Development Director Ten~y spoke of the importance of the revocation of the creeks mentioned due to the current gravel surcharge. The Flood Plane Task Force as well as the Mood Board have both v~t~l in favor of this resolutic>n as well as 2009-Oh. PACAB's resolution is framed in such away that it will go to City Council with PACAB's recommendation and then on to the State. Long included that the Flood Plane Task Force is also and advisory body to the Kenai IIorough Assembly. The idea was to bet as many bodies as possible signed onto adopting this resolution to get the widest base o f support at the State level. !n response to Butts, Chair Long discussed that there arc no real draw hacks to this Resolution. itilotion (Tongas/Schacfcrmeyer) Approve Resolution 2009-05 itlotion Passed Unanimous yes ~~ ~~ KENAI PENINSULA BOROUGIi FLOOD PLAllY TASI'; FORCE RESOLUTION 2009-OY A RESOLUTION RECOMMENDING THE THAT THE STATE OF ALASKA REVOKE ITS MARCH 20, 2006 NAVIGABILITY DETERMINATION AS TO SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE VICllVITY OF SEWARD, ALASKA WHEREAS, The State of Alaska Department of Natural Resources has changed positions on the issue of navigability on several occasions; and WHEREAS, The Seward Bear Creek flood service area and the Kenai Peninsula Borough arc working to lessen impacts to flooding in the Seward area; and WHEREAS, The State of Alaska Department of Natural Resources (DNR) charges a [LBVV) royalty fee on all gravel materials removed from these areas; and WHEREAS, This [LEVY] royalty fee makes flood control projects more expensive and cost prohibitive; and WHEREAS, The Bureau of Land Management recommends that all water bodies, with the exception of Bear Lake, be considered administratively non-navigable in T.1N R. lE, T. ]N R. 1 W, T.2N R.1 W, T.1 SR. 1 W, T. 1S R.IE. WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods. NOW THEREFORE, BE IT RESOLVED BY THE KENAI PENINSULA BOROUGH FLOOD PLAIN TASK FORCE: SECTION ]. That Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable, as defined by and in to the Daniel Ball test [ANDJI best survey practices, and are not subject to the submerged land act, which, according to State of Alaska policy on Navigability, on the website http://dnr.alaska.goy/mlw/nay/nav~olicy.htm, is the accepted and correct standard for determining navigability. SECTION 2. The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive evidence ofnon-navigability on Spruce Creek. However, all of the creeks listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients as expressed in percent slope derived from L1DAR dataset 2006 and pertinent cross sections. SECTION 3 The Kenai Peninsula Boro~,h Task force requests that other concerned local boards and commissions pass similar declarations in support of this resolution ADOPTED BY THE KENAI PENINSULA BOROUGH FLOOD PLAIN TASK FORCE ON THIS 2ST DAY OF APRIL 2009. - 7 f .~. KEN'A! PEl11lIVSULA BOROUGH ~~ 144 North Bintdey Street • Soldotna, Alaska 99669-7520 I ~~ \ Toti-free within the Borough: 1-SDd-478-4441 -Jr~tr PHONE: (907) 262-4441 • FAX: (907}262.1892 www.boraugh.kenai.ak.us DAVE CAREY ~`~•. °'"~• -«~` ~ BOROUGH MAYOR Apri17, 2009 Mr. Scott Ogan Natural Resource Manager II Department of Naturat Resources Division of Mining, Land & Water Public Access Assertion & Defense Unit 550 W. 7`a Ave., Suite 1330 Anchorage, AK 99501-3 ~ 14 Re: State of Alaska Navigability Determination of March 20, 2006 Dear Mr. Ogan: Based on the following facts, the Kenai Peninsula Borough administration respectfully requests that the state revoke its Macch 20, 2006 Navigability Determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the vicinity of Seward, Alaska. The Borough does not dispute the determination that Resurrection River is navigable at this time. If there is an applicable appeal process governing this request, please advise us as to that process. The detemnnation notice contained no such information. In 1999 Japp Creek was the only stream of those Isted in the 2006 determination that was determined navigable. Kathy Atkinson, Division of Lands, subsequently revoked that determination, with the result that in 1999 the state determined a[1 of the creeks listed in the 2006 letter were non-navigable. (Letter to Seward City Council I999). The letter of March 20, 2006, overturning portions of the 1999 determination, provides only cursory and anecdotal information supporting the conclusion that the above creeks should now be classified as navigable. It does not provide enough information for the borough to determine to what extent the state considered the relevant factors when it reversed its long-standing determination that these e-reeks are not navigable. BLM recommends that all water bodies, with the exception of Bear Lake, be considered administxatively non navigable in T.1N R. lE, T. 1N R. 1 W, T.2N Rl W, T.l SR. 1 W, T. 1 S RIE. This was determined in accordance to the Daniel Ball test and best survey practices which, according to State of Alaska policy on Navigability, on the website http://dnr.alaska.gov/rnlw/nav/nav~olicv.htm. is the accepted and correct standard for determining navigability. 33 The above-mentioned website also indicates on page 3, paragraphs 6 and 7, that Alaska policy interprets the Daniel Ball test as requiring the water body to be usable as a highway for the transportation of people or goods. Additional elaboration is found on page 4, paragraph 7, which provides that waters that are only navigable at infrequent anal unpredictable periods of high water are not normally considered navigable". Nona of these streams are capable of fulfilling this requirement except at infrequent and unpredictable periods. Further, if the interpretation according to State of Alaska policy includes recreational uses such as fishing, trapping, shooting or transportation of personal goods, there is no evidence that the streams in question have ever been capable of supporting such activities, anadromous or not. Albert Schaffer, Afogaak Logging Co., in 1955 logged substantial portions of Fourth of July Creek and was unable to "float logs" down this stream. (Verbal Communications 2009.) This lack of ability to float lags is in concurrence of Alaska policy and interpretations of policy for anon-navigable determination. The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive evidence of non-navigability on Spruce Creek. However, all of the creeks listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients as expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections. Moreover, on page 7 of the Navigability Policy, the first full paragraph indicates that when information is lacking, the state is forced to rely on the physical characteristics shown on maps and aerial photographs. In those cases, the state identifies as navigable all streams depicted on the USGS maps with double lines (generally at least 70 feet wide) and having an average gradient over the length of the stream of no more than 50 feet per mile. As the state reversed its prior ruling without the benefrt of an on-site inspection, it seems appropriate to use these guidelines. Following is more information concerning the issue of navigability of the streams at issue: Salmon Creek: In the 2006 determination, Salmon Creek headwaters are said to be derived fiom Beaz Lake Glacier melt (page 4 paragraph 2), which is not wrrect. Beaz Creek/Sahxton Creek confluence, also stated in the determination document, clearly supports this. In fact, Glacier Creek (Kwechak), not Salmon Creek, flows from Bear Lake Glacier. Instead, Salmon Creek flows from Lost Creek and runs approximately 5.6 miles to its confluence with Resurrection River. Further, the determination notes that the creek is shown to have significant width along most of its channel, in some places more than 400 feet. This width is attributable to the meandering nature of this creek; only during floods would it possibly reach such a large width. As indicated by 1VIr. Bardarson, Salmon Creek is often very shallow. Although he states it is floatable inmost areas, there is nothuig provided to indicate what could float on it inmost areas. Fourth of JuI Creek: The determination letter indicates that this creek runs approximately 1.14 miles into the Resurrection Bay, and that the lower reaches of this creek are anadromous anal tidally influenced. 43 USC § 1301(a}(2) defines lands beneath navigable waters as (2) alI lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the Page 2 of 3 '~ 3 coast line of each such State and to the boundary line of each such State where in any case such boundary as it existed at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles .. . However, this creek has not significantly changed since the 1980 determination. Please provide information supporting the conclusion that the creek is now tidally influenced and therefore subject to the Submerged Lands Act. Further, the Fourth of July Creek gradient exceeds the 50 feet in one mile standard. Sawmill Creek: Please provide information supporting the conclusion that the creek is now tidally influenced and therefore subject to the Submerged Lands Act and how this Creek has changed from the 1980 determination. Also, Sawmill Creek gradient exceeds the SO feet in one mile standard. The determination document dated March 20, 2006, refers to NHD datasets at pages 2 and 4. Please advise us what kind of data the referenced USGS dataset was used .in the previous mentioned deternnation. DVe would appreciate your reversing the determination of navigability dated March 20, 2006, or providing us with additional information supporting the conclusions as to these three creeks. Thank you for your consideration. Sincerely, ~ ~ ~ David R. Carey Borough Mayor Page 3 of 3 '7 4 Alaska Department of Natural Resources State Policy on Navigability Table of'Contents: • I. Identifyin~ and Protecting State Title to the Beds of Navi ability • Riparian Rights and Statute of Limitations • Navigability Criteria • Navi ability Criteria Disputes • Identification of Navigable Waters • Navigable Waters within Pre-Statehood Federal Withdrawals • Navigable Waters within ANILCA Conservation System Units • II. Leal and Policy Guidelines Governing Management of Submerged Lands and Pt.iblic Waters • Public Trust Doctrine • Public Waters • Boundaries of Navigable Waters • Conclusion Policies and Procedures on Ownership And Management of Navigable and Public Waters June 18,1996 State ownership of the beds of navigable waters is an inherent attribute of state sovereignty protected by the United States Constitution. Utah v. United States, 482 U.S. 193 (1987). Under the doctrine, all states enter the Union on an equal footing with respect to sovereign rights and powers, title to the beds of navigable waters in Alaska vested in the newsy formed State of Alaska in 1959. In addition, under the Alaska Constitution and the public trust doctrine, all waters in the state are held and managed by the state in trust for the use of the people, regardless of navigability and ownership of the submerged lands under the Equal Footing Doctrine. The purpose of this paper is to describe the State of Alaska's policies and procedures for identifying and protecting the state's title to the beds of navigable waters. In addition, this paper outlines the legal and policy considerations, which guide the ownership and management of submerged lands and public waters. I. IDENTIFYING AND PROTECTING STATE TITLE TO THE I3EDS OF NAVIGABLE WATERS Identification and management of the beds of navigable waters is an important policy of the State of Alaska. In 1980, the state established a comprehensive navigability program to respond to federal land conveyances and land management State Policy on Navigability -1- 07/04/99 ~~ activities under the Alaska Statehood act, the Alaska Native Claims Settlement Act (ANCSA), and the Alaska National Interest Lands Conservation Act (ANILCA). Pursuant to the provisions of those acts, the federal government has issued navigability determinations for thousands of lakes, rivers, and streams throughout the state in an effort to determine whether the state or federal government owns the submerged lands. Navigability determinations are also made prior to many state land disposals to insure that adequate public use easements are reserved. The basic purpose of the state's program is to protect the public rights associated with navigable waters, including, in particular, the state's title to the submerged lands. Because state and native land selections and federal conservation units blanket the state, navigability questions have arisen for rivers, lakes, and streams throughout Alaska. The navigability of many of those water bodies has already been established. There are hundreds of others, however, where navigability is not yet determined. To help resolve these navigability disputes, a major goal of the state's navigability program is to identify the proper criteria for determining title navigability in Alaska and to gather sufficient information about the uses and physical characteristics of individual water bodies so that accurate navigability determinations can be made as disputes arise. Other important aspects of the program include monitoring federal land conveyance and management programs to identify particular navigability disputes, seeking cooperative resolution of navigability problems through negotiations and legislation, and preparing for statewide navigability Eitigation. ItIPAR[AN RIGIiTS AND STATUTE OF LIMITATIONS Disputes over ownership of submerged lands in Alaska have arisen under a variety of circumstances. The principal source of the disputes in Alaska is the survey and acreage accounting system used by the federal government for conveying land to the state and native corporations. The standard procedures for surveying and conveying federal land are found in the Manual of Instructions for the Survey of the Public Lands of the United States, generally known as the BLM Manual of Surveying Instructions- Under those procedures, consistently used in every public land state except Alaska, only uplands are surveyed and conveyed in fulfillment of acreage entitlements, not submerged lands. The survey rules require that all lakes 50 acres or larger, and rivers and streams three chains (198 feet) in width or wider, regardless of navigability, be meandered and segregated (excluded) from the surveyed public lands. Only the surveyed uplands are conveyed. The acreage of meandered rivers, lakes, and streams is not included in computing the amount of land involved in the conveyance. In Alaska, however, the federal government had not consistently followed these survey rules. Until 1983, the federal government treated submerged lands the same as uplands. All bodies of water that were considered non-navigable by the federal government, regardless of size, were surveyed as though they were uplands and the acreage of submerged lands was charged against the total acreage entitlement. Because of these conveyance procedures, the navigability of water bodies in Alaska has been an issue of contention since the enactment of the Alaska Statehood Act and ANCSA. In addition to the problems caused by a lack of information about many water bodies, the situation was exacerbated by the narrow definition ot'navigability used by the federal government. Hundreds of rivers, lakes, and streams considered navigable by the state were determined non-navigable by the federal government. In 1983, following years of negotiations, lawsuits and legislative attempts to solve the navigability problems created by the unusual survey and conveyance procedures in Alaska, the State of Alaska, the United States Department of the Interior and the Alaska Federation of Natives (AFN) agreed that the standard rules of survey should be followed for land conveyances in Alaska. The effect of that decision was to treat Alaska surveys and land conveyances like federal land surveys and conveyances In other states. The recipients of conveyances from the federal government are charged only for the amount of public land that is cala~lated by the survey, which does not include the areas of meandered rivers, lakes and streams. The use of these survey procedures has eliminated many of the problems associated with the federal land conveyance programs in Alaska. Submerged lands are no longer being conveyed to fulfill acreage entitlements. With the exception of lakes smaller than 50 acres and s#reams narrower than 198 feet, navigability determinations are no longer being made prior to federal land conveyances. Determinations of ownership of submerged lands can be put off until a natural resource use or conflict requires resolution, such as issuance of an oil and gas lease, mining claim, or a gravel sale. Through the joint efforts of the State of Alaska, AFN, and the Department of the Interior, the 1983 decision to use the standard survey procedures for land conveyances in Alaska was legislatively approved in August 1988 when the United States Congress passed legislation (94 Stat. ?430) amending Section 901 of the Alaska National Interest Lands Conservation Act, codified at 43 U.S.C. 1631. The 1988 amendment, sometimes referred to as the Alaska Submerged Lands Act, requires State Policy on Navigability -2- 07/04/99 ~~ that the standard rules of survey in the BLM Manual of Surveying Instructions be used for ail federal surveys under the Alaska Statehood Act and ANCSA. The 1988 amendment also repealed the Section 901 statute of limitations that would have required the state to file a lawsuit within a very short period of time in order to preserve its title to the beds of navigable waters conveyed to native corporations by the federal government as a result of erroneous navigability determinations, poor maps, surveys or whatever. Even with this legislation, a major problem concerning navigability decisions made by the federal government under the old system remains unresolved. At issue are the hundreds o.f erroneous non-navigability decisions and the resulting submerged land conveyances made to ANCSA corporations in previous years. In addition, to comply with the meandering requirements of the BLM Survey Manual, the federal government is still required to make navigability determinations for lakes smaller than 50 acres and rivers or streams narrower than 198 feet in width to determine if these waters must be meandered. NAVIGABILITY CRITERIA The greatest hurdle to overcome in the state's efforts to identify and manage navigable waters has been the long- standing differences of opinion between the State of Alaska and the United States regarding the application of the test for determining title navigability. Navigability is a question of fact, not a simple legal formula. Variations in water body use that result from different physical characteristics and transportation methods and needs must be taken into account. There are many legal precedents for determining navigability in other states based upon the particular facts presented in those cases. In Alaska, though, we are just beginning to get the final court decisions that are necessary to provide legal guidance for accurate navigability determinations. The physical characteristics and uses of a water body used by the state for asserting navigability, commonly refen•ed to as navigability "criteria", are based upon legal principles that have been established by the federal courts. These criteria are applied to rivers, lakes, and streams throughout the state and take into account Alaska's geography, economy, customary modes of water-based transportation, and the particular physical characteristics of the water body under consideration. The federal test for determining navigability was established over a hundred years ago..[n the landmark decision of The Daniel Ball, 77 U.S. (19 Wall.) 557, 563, (1870), the Supreme Court declared: Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Although The Daniel Bal] test is accepted as the correct standard for deternining navigability, there has been a lot of disagreement over application of many of the terms and phrases used in The Daniel Ball test to the specific uses of Alaska's lakes, rivers and streams. The State of Alaska uses the following interpretation of that test as the basis for its navigability program. The Water. body Must Be Usable As a Highway For the Transportation of People or Goods. Interpreting the requirements that navigable water bodies be used or usable as "highways of commerce", the courts have ruled that the central theme of title navigability is that the water body be capable of use as a highway which people can use for transporting goods or for travel. Neither the type of goods being transported nor the purpose of the travel is important in determining navigability. Transportation on water associated with recognized commercial activities in Alaska, such as mining, timber harvesting, and trapping is, evidence of navigability. The use of water bodies for transportation in connection with natural resources exploration or development, government land management, management of fish and game resources, or scientific research is also evidence of navigability. Travel by local residents or visitors for the purpose of hunting, fishing, and trapping or as a means of access to an area can be used to establish navigability. The same holds for recreational transportation, including personal travel and professionally guided trips. Waters Which Are Capable of Being Used For Transporting Persons and Goods, Although Not Actually Used, Are Navigable. It is not necessary that a water body be actually used for transportation to be found navigable. It is enough that it is susceptible, or physically capable, of being used. Whether a water body is susceptible of use for transportation depends upon.the physical characteristics of the watercourse such as length, width, depth, and, for a river, current and gradient. If those physical characteristics demonstrate that a water body could be used for the transportation of persons or goods, it is legally navigable. The susceptibility element of title navigability is very important for the identification of navigable water bodies in Alaska. Because of Alaska's sparse population and lack of development, there are I~undreds of remote rivers, lakes, and streams where there is little or no evidence of actual use. Because of their physical characteristics, however, many of these remote water bodies could be used for transporting people or goods if there was a need. Under these circumstances, they are State Policy on Navigability -3- 07/04/99 ~~ considered legally navigable. Transportation Must Be Conducted in the Customary Modes of Trade and Travel On Water. A finding of navigability does not require use or capability of use by any particular mode of transportation, only that the mode be customary. The courts have held that customary modes of transportation on water inchide all recognized types and methods of water carriage. Unusual or freak contrivances adapted for use only on a particular stream are excluded. Customary modes of trade and travel on water in Alaska include, but are not limited to, barges, scows, tunnel boats, flat-bottom boats, poling boats, river boats, boats propelled by jet units, inflatable boats, and canoes. In places suitable for harvesting timber, the flotation of logs is considered a customary mode of transportation. The mode of travel must also be primarily waterborne. Boats which may be taken for short, overland portages qualify. The courts have ruled that the use of a lake for takeoffs and landings by floatplanes is insufficient, in and of itself, to establish navigability. Without expressly rejecting the claim, at least two court decisions in Alaska have suggested that winter travel on the surface of a frozen river or lake is probably not evidence of navigability. The rivers involved in the two adjudicated cases were both found navigable based upon summer use by boats, however, and it appears likely that most water bodies in Alaska that are used as highways in winter can also be traveled by at least small boats in the summer. Because of this, the state need not rely upon winter travel to support navigability. Waters Must Be Navigable In Their Natural and Ordinary Condition. A water body, which can be used for transportation only because of substantial man-made improvements to the condition of the watercourse, is not navigable for title purposes. However, if transportation does or could occur on the water body even without the improvements and the improvements would only make transportation easier or faster or possible for larger boats (e.g., dredging), it is still considered navigable for title purposes. The presence of physical obstructions to navigation (rapids, falls, log jams, etc.) does not render a waterway non- navigable if the obstruction can be navigated despite the difficulties or if the obstruction can be avoided by other means, such as portaging, lining, or poling. A water body is also navigable even if seasonal fluctuations do not allow it to be navigated at all times of the year. However, a water body, which is only navigable at infrequent and unpredictable periods of high water, is not normally considered navigable. The fact that a water body may be frozen for several months of the year does not render it non-navigable if it is navigable in its unfrozen condition. Title Navigability Is Determined As Of The Date Of Statehood. To be considered navigable for title purposes, the water body must have been navigable in 1959 (when Alaska became a state). 'T'his element of the navigability test focuses on the physical characteristics of the water body and whether those characteristics have changed significantly since statehood. Most water bodies have not physically changed enough since statehood to alter Lheir navigability. Assuming there have been no signif cant changes in the physical characteristics of the water body, a water body that is navigable today would be considered legally navigable in 1959 as well. Exceptions might include the creation, by natural or man-made causes after statehood, of a totally new lake, river, or canal now used for navigation. Such a water body would not be considered navigable for title purposes. Conversely, a water body which was navigable in 1959 but, because of nariiral or man-made physical changes, is no longer navigable in fact would still be considered navigable for title purposes. NAVIGABILITY CRITERIA DISPUTES Because of differing legal interpretations of court navigability decisions, several aspects of the criteria used by the state to determine navigability have been disputed by the federal government. As a direct resu-t of these criteria disputes, many water bodies considered navigable by the state have been determined non-navigable by the federal government. The major criteria dispute has been over the type or purpose of the transportation required to establish navigability. The federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered navigable. Other, "noncommercial" transportation uses are not considered sufficient to establish navigability. In this context, the federal government has claimed that the only relevant "commercial" transportation is the distribution of goods for sale or barter, or the transportation for hire of people or things. The federal govemment has admitted that professionally guided transportation on Alaska's rivers, lakes aid streams constitutes commerce, but nevertheless has argued that the waters are not being used as a navigable "highway" when recreation is involved, but rather more as an amusement park. The federal government has therefore claimed that waters used only for commercial recreation are legally nonnavigable even though they may be navigable in fact_ Through the work of the state's navigability program, this definition has been repeatedly rejected by the courts, most recently in the Gulkana River case. Alaska v. United States, 662 F.Supp.4S5 (D.Alaska 1986), affirmed sub nom. Alaska v. Ahtna, State Policy on Navigability -4- 07/04/99 !p Inc., 891 F.2d 1401 {9th Cir. ] 489). Applying the correct definition of navigability, many of the submerged lands that the federal government attempted to convey to ANCAA corporations should have been recognized as belonging to the state. The state appealed many conveyances to protect its title. As occurred in the Kandik-Nation Rivers appeal, Appeal of Doyon, 86 I.D. 692 (ANCAB 1979), Alaska Native Corporations also found it necessary to challenge erroneous federal determinations ofnon-navigability to insure they would not be deprived of any portion of their entitlement by being charged for submerged land owned by the slate. The federal govemment has also argued that aluminum boats, boats propelled by jet units, inflatable boats, and canoes are not customary modes of travel for the purpose of determining navigability in Alaska. As a result, many water bodies navigated by these types of watercraft have been found legally non-navigable by the federal government. The claim is that these boats represent post-statehood technological advances, are too small to be considered "commercial", or that most "commercial" use of the watercraft developed after statehood. Another navigability dispute involves remote, isolated lakes. The federal government has found many of these lakes legally non-navigable, even though they are physically capable of being navigated. The federal government's contention is that a navigable connection to another area is necessary to make trave[ on a remote lake worthwhile. Otherwise, the federal government views the lack of development in the area around the isolated lake as an indication that the lake will never be used for commercial transportation. To resolve these navigability criteria disputes, the state has actively pursued a limited number of court cases challenging particular findings of noa-navigability by the federal govemment. With the sole exception of floatplanes, the courts have agreed with the navigability criteria presented by the State of Alaska and have rejected the limitations suggested by the federal govemment. These cases include: Gulkana River. In this case, both in the U.S. District Court and on appeal to the U.S. Court of Appeals, the federal courts rejected the federal government's restrictive interpretation of the phrase "highway of commerce" in the title navigability test. The federal district court stated that to demonstrate navigability, it is only necessary to show that the water body is physically capable of "the most basic form of commercial use: the transportation of people or goods." Because the Gulkana River can be used for the transportation of people or goods, the Gulkana River was found navigable. Alaska v. United States, 662 F.Supp.455 (D.Alaska 1987). On appeal, the court of appeals affirmed the district court's finding of navigability. Alaska v. Ahtna, Inc., 892 F.2d 1401 (9th Cir. 1989). The court of appeals found that the modem use of the Gulkana River for guided hunting, fishing, and sightseeing trips is a commercial use and, since the physical characteristics of the river have not significantly changed since 1959, provides conclusive evidence that the river was susceptible of commercial use at statehood. The court also found that modem inflatable rafts can be used to establish navigability. In April 1990, the United States Supreme court denied a request by Ahtna, Inc. to reconsider and overturn the court of appeals decision. The Gulkana River precedent is now binding on al] future navigability determinations in Alaska. Kandik and Nation Rivers. In this administrative appeal, the State of Alaska and Doyon Limited, an ANCSA regional corporation, successfully established that the use or susceptibility of use of a river or stream by an 18-24 foot wooden riverboat capable of carrying at least 1,000 pounds of gear or supplies is sufficient to establish navigability. Based upon the use of these types of boats for the transportation of goods and supplies by fur trappers, as well as extensive historic and contemporary canoe use, the court found the Kandik and Nation rivers, in Interior Alaska, navigable. Appeal of Doyon, 86 LD.692 (ANCAB 1979). Alagnak River. in this federal district court case, the Alagnak River, the Nonvianuk River, Kukaklek .Lake and Nonvianuk Lake were all found navigable. These interconnected waterbodies are located in the Bristol Bay region of Alaska, south of Lake I[iamna. Their primary transportation use is for commercially guided hunting, fishing, and sightseeing and for government research and management. They also serve as a means of access for local residents to their homes and to the surrounding areas for subsistence hunting and fishing. After several years of litigation, the federal government conceded that these rivers and lakes are navigable. Alaska v. United States, No. 82-201 (D.Alaska :Feb. 2, 1985). Matanuska River. The recommended decision in this administrative appeal agreed with the State of Alaska's position that post-statehood commercial river rafting operations are sufficient to establish navigability. Based upon that type of use, the administrative law judge who heard the case recommended that the Matanuska River, in Southcentra] Alaska, be found navigable. The Secretary of Interior, over the state's objections, assumed jurisdiction over the case and stayed implementation of the recommended decision, No action has been taken in the case since that time. Appeal of Alaska, No. 82-1133 (IBLA Rec. Decision Aug. 18, 1983) Slopbucket Lake. The state claimed that the extensive use of floatplanes on Slopbucket bake, a twenty acre lake adjacent to Lake Iliamna, was sufficient to establish navigability. The federal courts rejected this view. The courts reasoned that floatplanes do not use the lake as a navigable highway; they just take off and land there. Alaska v. United States, 754 F.2d 851 (9th Cir.) cert denied, 106 S. Ct. 333 (1985). State Policy on Navigability -5- 07/04/99 tf IDENTIFICATION OF NAVIGABLE WATERS Even if the criteria for determining navigability in Alaska were totally agreed upon, it still would be difficult to prepare a complete list of all of the navigable lakes, rivers, and streams in the state. Much of Alaska has not yet been surveyed and many maps are inaccurate and out-of--date. It is an immense and complex task simply to identify and locate all of the thousands of named and unnamed lakes, rivers, and streams in the state which might be considered navigable. Furthermore, once a potentially navigable lake, river, or stream has been identified, detailed information about its size and uses is necessary far an accurate navigability determination. Because of Alaska's undeveloped and remote character, gathering navigability information is both time consuming and expensive. Finally, administrative navigability determinations made by the state or the federal government are always subject to legal challenge, since only the courts can authoritatively determine title to submerged lands. Despite these difficulties, both the state and the federal govemment are frequently called upon to issue navigability determinations. Although the requirement that BLM adhere to the meandering requirements of the BLM Survey Manual has eliminated the need for navigability determinations on the larger rivers, lakes, and streams, which must now be meandered regardless of navigability, navigability determinations are still required for the smaller rivers, lakes, and streams to determine if they are to be meandered at the time of survey. Because of this, some navigability determinations are still made for nearly every federal land conveyance under ANCSA or the Alaska Statehood Act. The management plan 'for nearly every federal Conservation System Unit (CSLJ) also addresses the navigability issue. Federal navigability determinations are reviewed by the state to insure that available information sources were used and interpreted correctly. Where the federal government deteranines non-navigable a water body which is considered navigable by the state, the state may provide the government with supplemental information about the uses and characteristics of the water body to obtain a re-determination of navigability. Under some circumstances the state needs to make its own navigability determinations, such as for a oil and gas lease sale, land disposal, material sale, mining claim, or another use of state land or resources requiring a determination of ownership of submerged lands within the affected area. For large, undeveloped regions of Alaska there may be little or no accurate water body use or physical characteristics information available for making navigability determinations. When information is lacking, and it must make a navigability determination, the state is forced to rely solely upon the physical characteristics shown on maps and aerial photographs. In these cases, the state identifies as navigable all streams depicted on the U.S.G.S. maps with double lines (generally at least 70 feet wide) and having an average gradient over the length of the stream of no more than 50 feet per mile. With rare exceptions, the state's experience has been that streams of this type are deep enough and wide enough to be navigable by boats carrying persons or goods and must, therefore, be considered legally navigable. Streams depicted with single lines, although nan•ower in width, may also be listed as potentially navigable if they have gradients of substantially less than 50 feet per mile and are at least 10 miles. If there is no public use or physical characteristics information readily available for lakes, those takes which are shown on maps and aerial photographs as having a navigable water connection with other navigable waters, or which are accessible by short overland portages, are considered navigable regardless of the size of the lake. These lakes are part of a system of interconnected navigable waters. If a lake is totally isolated, it will be included on the state's navigability maps if it is at least 1 I/2 miles long. That length insures that the lake can be used as a "highway". Future judicial decisions interpreting the "highway" requirement for isolated lakes could shorten or lengthen this 1 1/2 mile "rule of thumb." The state recognizes that, under some circumstances, lakes smaller than 1 1/2 miles long can be and are used as navigable highways. In those cases, when known, these smaller lakes are also depicted on the slate's navigability map. Moreover, as a matter of administrative policy and convenience only, the state may sometimes make an exception to the 1 1/2 mile standard in the extremely wet regions of the state, including some areas in the Yukon- Kuskokwim Delta, Yukon Flats, and on the North Slope. In these areas, an isolated lake might need to be 2-3 miles long to be included on the state's navigability maps. Although smaller lakes in these areas are capable of being used for transportation and should be found navigable by the courts, the state has decided to concentrate its limited resources in protecting the larger water bodies first. NAVIGABLE WATERS WITHIN PRE-STATEHOOD FEDERAL WITHDRAWALS Although disputes over which waters in Alaska are navigable are the most frequent cause of submerged land ownership disputes, there is another major legal issue which poses a threat to Alaska's sovereign claim to the beds of navigable waters. Even where navigability is conceded, the federal government often contends that title to the submerged lands did not vest in the state if the area was withdrawn or reserved by the federal government on the date of statehood. Within native conveyance areas, the federal government has used this claim of "reserved submerged lands" to justify its attempts to convey the beds of navigable waters in fulfillment of the native entitlements. Within state selections, the federal govemment has used the same State Policy on Navigability -6- ~® 07/04/99 claim to charge the acreage of submerged lands against the state's entitlement The state strongly disagrees with this federal claim and has actively pursued a number of court challenges to resolve the issue. In addition to numerous appeals from federal decisions to convey or charge for the beds of navigable waters, the state was actively involved as a friend of the court in one case before the United States Supreme Court and continues to be involved in another Supreme Court case which presents this issue. The pending case is United States v. Alaska, U.S. Supreme Court 84 Original (fled June, 1979). On June 8, 1987 the Court issued its decision in Utah v. United States, No. 85-1772 (filed Oct. 14, 1986). In this case the federal government, in 1976, issued oil and gas leases for (and underlying Utah Lake, a navigable water body located in Utah. The suit sought a declaratory judgement that Utah, rather than the United States, holds the lands under navigable waters in the territories in trust for future states, and, absent a prior conveyance by the federal government to third parties, a state acquires title to such land upon entering the Union on an "equal footing" with the original 13 states. The Supreme Court held that title did pass to the state upon Utah's admission to the Union. They held that there is a strong presumption against .finding congressional intent to defeat a state's title, and, that in fight of the }ongstanding policy of the federal government's holding land under navigable waters for the ultimate benefit of fiiture state absent exceptional circumstances, an intent to defeat a state's equal footing entitlement could not be inferred from the mere act of the reservation itself. The United States would not merely be required to establish that Congress clearly intended to include land under navigable waters within the federal reservation, but would additionally have to establish that Congress affirmatively intended to defeat the future state's title to such land. This decision has significant ramifications within Alaska, since over 95 million acres -more than 25 of the total area of the state -was enclosed within various federal withdrawals and reservations at the time Alaska became a state. NAVIGABLE WATERS WLTHIN ANILCA CONSERVATION SYSTEM UNITS On December 2, 1980, the Alaska National l.nterest Lands Conservation Act became law. This act created or added 104.3 million acres to various federal conservation system units. Because these "withdrawals" occurred after the date of statehood, there is no disagreement between the state and federal governments that navigable waters within the various CSU's are owned by the state. However, there is some disagreement on the amount of authority the federal land managers may have to regulate these state owned submerged lands. The U.S. Constitution gives Congress certain Limited powers to control uses on state owned submerged land. These are known as the Property Clause, Navigational Servitude and the Commerce Clause. The extent of these powers involves complex legal questions. However, even assuming that Congress has the power to regulate state-owned submerged lands in Alaska, the United States Supreme Court has ruled that Congress may choose not to exercise that power, thus leaving regulation totally up to the state. Escanaba Co. v. Chicago, 107 U.S. (17 Otto.) 678 (1883}. V/hether Congress has done that can only be determined by examining the federal laws passed by Congress dealing with Alaska lands. Another possibility is that the state and federal governments have concurrent jurisdiction, sharing the authority to regulate submerged lands. In ANILCA, Congress did not take away the state's power to regulate state-owned submerged lands within federal CSU's in Alaska. Numerous provisions in ANILCA recognize and respect the state's authority over state-owned land- In some cases, however, Congress may have attempted to give the federal land managers some concurrent authority to regulate navigable waters within CSU's. The state, where possible, cooperates with rather than confronts the federal land managers. This cooperation often takes the form of a memorandum ofunderstanding that discusses management issues and how they will be resolved. Differences do occur, however, over issues such as column management and restrictions on mining. II. LEGAL AND POLICY GUIDELINES GOVERNING MANAGEMENT OF SUBMERGED LANDS AND PUBLIC WATERS PUBLIC TRUST DOCTRINE The state has special duties and management constraints with respect to state-owned land underlying navigable waters. These special duties and management constraints arise from the Alaska Constitution. The Alaska Constitution contains State Policy on Navigability -7- 07/04/99 ~1 numerous provisions embracing the principles commonly known as the public trust doctrine. The public trust doctrine is remarkable both for its age and for its vigor. Rooted in the customs of the seafaring Greeks and Romans, it has evolved to become one of the most effective safeguards of public rights. Basically, the trust reflects an understanding of the ancient concept that navigable waters, their beds and their banks, should be enjoyed by a!1 the people because they are too important to be reserved for private use. In America, the concept of public rights to public waters was recognized since the early days of the Massachusetts Bay Colony where the great Pond Ordinance of 1641 guaranteed the right to fish and fowl in ponds greater than 10 acres, along with the freedom to pass through private property to do so. By 1821, American courts were pronouncing the law of public trust as we know it today. This does not mean that no water- related development can take place. The public trust doctrine permits states to improve waterways by constructing ports, docks and wharves, thus furthering the purposes of the trust. Generally speaking, the people's trust rights may be alienated only in ways that further overall trust uses, and in relatively small parcels. Illinois Central Railroad Company v. Illinois, 146 U.S. 387,452 (1982}, involved a grant by the State of Illinois of one thousand acres of the bed of Lake Michigan, constituting the entire harbor of the City of Chicago, to the Illinois Central Railroad. 1'he U.S. Supreme Court held that the grant was revocable, that the state held the land intrust for the public, and that it was powerless to relinquish its rights as trustee. The court went on to say that land underlying navigable waters is much more than a simple property right. [I]t is a title different in character from that which the state holds in lands intended for sale. It is different from the title which the United States holds in the public lands which are open to preemption and sale. It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties... The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. In the 19th century the purposes of the trust were generally described as "commerce, navigation and .fishery." 'This was logical because the major waterways were essential highways of commerce. But as other values became increasingly important, courts began to recognize recreation and environmental protection among the purposes for which the trust exists. As a California court said in 1971, "with our ever increasing leisure time...and the ever increasing need for recreational areas it is extremely important that the public need not be denied use of recreational water...the rule is that a navigable stream may be used by the public for boating, swimming, fishing, hunting and all recreational purposes." People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1044 (1971). The Alaska constitution provides protections similar to the public trust doctrine protections that cannot be disregarded by the legislature or overruled by the courts. Article VIII, Sec. 3 provides; "Wherever occurring in their natural state, fish, wildlife and waters are reserved to the people for common use." After reviewing the public trust doctrine in Owsichek v. State, Guide Licensing, 763 P.2d 488 (Alaska 1988), the Alaska Supreme Court explained that "the common use clause was intended to engraft in our constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state." In CWC Fisheries, .[nc. v. Bunker, 755 P2.d I 1 I S (Alaska 1988), the Alaska Supreme Court applied the public trust doctrine to tidelands, holding that, even after conveyance, the title remains subject to continuing public easements for purposes of navigation, commerce and fishery. The 1985 Alaska legislature recognized the constitution application of public trust doctrine principles in Alaska. In an Act relating to the public or navigable waters of the state, the legislature found that "the people of the state have a constitutional right to free access to the navigable or public waters ofthe state" and that the state "holds and controls all navigable or public waters intrust for the use of the people of the state". 85 SLA Ch. 82. In the same act, the legislature ruled that submerged lands are "subject to the rights of the people of the state to use and have access to the water for recreational purposes or any other public purpose for which the water is used or capable of being used consistent with the public trust." Courts in other states over the years have defined in somewhat different ways the public uses that are permitted and protected by the public trust as it applies to submerged lands. In reviewing these other cases, it can clearly be seen that through time an ever-expanding definition of the public uses protected by the public trust doctrine is being adopted. The California Supreme Court recently held that: Although early cases had expressed the scope of the public's right in (lands subject to the public trust) as encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the right to hunt, bathe or swim, and the right to preserve the (public trust) lands in their natural state as ecological units for scientific study. City of Berkeley v. Superior Court of Alameda, 606 P.2d 362, 365 (Cal. 1980) State Policy on Navigability -8- 07/04/99 ~~ It is clear under the Alaska Constitution that the State of Alaska has the responsibilities of a trustee with respect to management of land underlying navigable waters. Moreover, the Alaska legislature has adopted a broad view of the public uses protected or permitted by the public trust. Accordingly, the Alaska Attorney General's Office has determined that, until the Alaska Supreme Court rules on the question, the state should assume that a broad definition of public rights protected by the Alaska Constitution and the public trust doctrine applies in Alaska, similar to the one adopted by the California Supreme Court. ] 982 Atty. Gen. Op. No. 3 (June 10, 1982). :PUBLIC WATERS It is not only the beds of navigable waters in Alaska that are reserved in public ownership for public use. Under article VIII, Section 3 of the Alaska Constitution, all waters occurring in their natural state are reserved to the people for common use. Article VIII, Section 14 of the Alaska Constitution also provides for the broadest possible access to and use of state waters by the general public. Section 14. Access to Navigable Waters. Free access to the navigable or public waters of the state, as defined by the legislature, shall not be denied any citizen of the United States or resident of the state, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes. Pursuant to this grant of authority, the Alaska State Legislature, in AS 38.05.365(12), defined "navigable waters" as follows: "navigable waters" means any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal sea or ocean, or any other body of water or waterway within the ten•itorial limits of the state or subject to its jurisdiction, that is navigable in fact for any useful public purpose, including but not limited to water suitable for commercial navigation, floating of logs, landing and takeoff of aircraft, and public boating, trapping, hunting waterfowl and aquatic animals, fishing, or other public recreational purposes. This definition of navigable waters does not define state ownership of submerged land in Alaska. The definition of navigability for ownership purposes was discussed earlier in this paper. This definition, however, does define what types of water bodies in Alaska are available for public use under the Alaska statutes. The Alaska State Legislature has broadly construed the constitutional protections for public use of the waters of the state. In an Act (8S SLA chap. 82, codified as AS 38.05.128) relating to the navigable or public waters of the state, the state legislature found: (a)The people of the state have a constitutional right to free access to the navigable or public waters of the state. (b) Subject to the federal navigational servitude, the state has full power and control of alf of the navigable or public waters of the state, both meandered and un-meandered, and it holds and controls all navigable or public waters in trust for the use of the people of the state. (c) Ownership of land bordering navigable or public waters does not grant an exclusive right to the use of the water and any rights of title to the land below the ordinary high water mark or subject to the rights of the people of the state to use and have access to the water for recreational purposes or any other public purposes for which the water is used or capable of being used consistent with the public trust. (d) This Act may not be construed to affect or abridge valid existing rights or create any right or privilege of the public to cross or enter private land. AS 38.05.128 provides: OBSTRUCTIONS TO NAVIGABLE WA'CER (a) A person may not obstruct or interfere with the free passage by a member of the public on any navigable water as defined in AS 38.05.965 unless the obstruction or interference is: (1) authorized by a federal or state agency; (2) authorized under a federal or state law or permit; (3) exempt under 33 U.S.C. 1344(f) (Clean Water Act); (4) caused by the normal operation of freight barging that is otherwise consistent with law; or State Policy on Navigability -9- 07/04/99 83 (5) authorized by the commissioner after reasonable public notice. (b) A violation of (a} of this section is a class B misdemeanor. (c) An unauthorized obstruction or interference is a public nuisance and is subject to abatement. The cost of abatement shall be borne by the violator and is in addition to any penalty imposed by the court. (d) This section may not be construed to affect or abridge valid existing rights. Thus, under the Alaska Constitution and this statute, any surface waters capable of use by the public defined in AS 38.05.365(12) are available to the public, irrespective of streambed ownership. Further, such public use is not considered a taking and is not subject to inverse condemnation action. Private ownership is subject to the public rights that are protected by the public trust. 1n two Montana Supreme Court cases involving the nature of public rights where the submerged lands are privately owned, the court rules that public portaging, anchoring, and other uses incidents[ to the use of the water are allowed. The court also found that iftravel on the water or streambed is obstructed, the public is allowed to use the adjacent private land to portage around the barrier in the least intrusive way possible, avoiding damage to the property holder's rights. However, the public does not have the right to enter into or trespass across private property in order to enjoy the recreational use of state-owned waters. The State of Alaska agrees with this ruling and believes a similar ruling would be made by our state courts. BOUNDARIES OF NAVIGABLE WATERS The state is often asked where public ownership of water bodies ends and private ownership begins. There are two types of water body boundaries to address: 1) non-tidal water boundaries and 2) tidal water boundaries. Non-tidal boundaries are boundaries of lakes, rivers, and streams. Tidal boundaries are the boundaries along any body of water which is influenced by the rise and fall of the tides. 1. Non-tidal Water Boundaries The boundary between public and private ownership is the "Ordinary High Water Mark" which is defined in l .l AAC 53.900(23) as being -The mark along the bank or shore up to which the presence and action of the non-tidal water are so common and usual, and so long continued in all ordinary years, as to leave a natural line impressed on the bank or shore and indicated by erosion, shelving, vegetation, or other distinctive physical characteristics. Also see the Alaska State Supreme Court definition in Department of Natural Resources v. Pankrantz 538 P.2d 984, 988-89 (Alaska 1975). The ordinary high water line can usually be observed by the laymen simply by noting the vegetation line or well defined stream banks. 2. Tidal Water Boundaries The boundary between tidal water bodies and private/public owned uplands is the Mean High Water Line. Mean high water line as defined by 11 AAC 53.900(15) is: The tidal datum plane of the average of all the high tides, as would be established by the National Geodetic Survey, at any place subject to tidal influence. This line is not readily observable because it is a line of known elevation which intersects the land surface. The mean high water line can be a considerable distance below the vegetation line because extreme high water will denude the beach above the line of mean high water. The only way that the location of mean high water line can be accurately determined is by differentia] leveling from known bench marks or by operating a tide gauge for a sufficient period of time to determine the mean high water elevation. The line of mean high water line can be approximated by time coordinated observations of the daily predictions for high and ]ow waters, predicted by NOAA, as they relate to the published mean high water elevation. This method can be highly unreliable because small errors in the predictions or observations can transform into large errors in the horizontal location; this is especially true in areas where the beach gradient is very flat. [t is important to note that in some areas, such as Prince William Sound, the mean high water line boundary is considerably higher than the current mean high water line because the boundary became fixed at the 1964 pre-quake location. In this instance the boundary between state-owned tidelands and the uplands would be established at an elevation which equals the sum of the mean high water elevation plus the published amount of uplift or, in some cases, submergence. CONCLUSIO~t This paper describes the state's policies and procedures for managing and protecting state submerged lands and public waters. As further legal and practical developments occur in this area, these policies and procedures will be reexamined by the state and, if necessary, appropriate changes will be made. State Policy opt Navigability -10- 07/04/99 ~4 Sponsored by: Administration CITY OF SEWARD, ALASKA RESOLUTION 2009-063 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, REQUESTING THE USDA NATURAL RESOURCES CONSERVATION SERVICES EXPEDITIOUSLY COMPLETE SOILS SURVEYS IN THE SEWARD AREA WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area (SBCFSA) repeatedly; and WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since 1986; and WHEREAS, there are currently no accurate soils maps available for the lands within the SBCFSA; and WHEREAS, accurate soil mapping is necessary to help define historic flood zones and to predict effects of future flooding events; and WHEREAS, to provide the best possible management for flooding issues within the SBCFSA accurate soils mapping is necessary; and WHEREAS, the KPB Flood Plain Task Force and the SBCFSA are taking every reasonable action to minimize future flood damage; and WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils maps to allow analysis of historic flood events and for use in designing flood prevention structures and flood reduction planning; and WHEREAS, the City of Seward Planning and Zoning Commission supported this resolution at its July 7, 2009 meeting and recommended Council's approval; and WHEREAS, the SBCFSA Board supported this resolution at its July 6, 2009 meeting. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City of Seward officially request that the USDA Natural Resources Conservation Service prioritize the SBCFSA for completion of soils survey as soon as possible. Section 2. Copies of this resolution shall be sent to USDA Natural Resources Conservation Service, Environmental Protection Agency (EPA) and the Kenai Peninsula Borough. Section 3. This resolution takes effect immediately upon its adoption. ~5 Council Agenda Statement Meeting Date: July 13, 2009 To: Mayor and Council From: Community Development Director Christy Terry Through: City Manager Phillip Oates Agenda Item: Requesting the USDA Natural Resources Conservation Services Expeditiously Complete Soils Surveys in the Seward Area BACKGROUND & JUSTIFICATION: The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward-Bear Creek Flood Service Area. The Task Force has made recommendations to address important flood mitigation items and has requested legislative support from the local boards, commissions, the Seward City Council and the Kenai Peninsula Borough Assembly. The Seward Bear Creek Flood Service Area Board, Kenai Peninsula Borough and the City of Seward are working to lessen impacts to flooding in the Seward area. Accurate soil mapping is necessary to help define historic flood zones and to predict effects of future flooding events. The Kenai Peninsula Flood Plain Task Force has identified the need for accurate soils maps to allow analysis of historic flood events and for use in designing flood prevention structures and flood reduction planning. At the request of the Kenai Peninsula Borough Assembly, copies of this resolution shall be sent to the USDA Natural Resources Conservation Service and the Environmental Protection Agency. 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: N/A Approved by Finance Department: RECOMl~~NDATION: 33 Approve Resolution 2009-~ Requesting the USDA Natural Resources Conservation Services Expeditiously Complete Soils Surveys in the Seward Area. ~6 Introduced by: Date: Action: Vote: KENAI PENINSULA BOROUGH RESOLUTION 2009-058 Long at the Request of the Flood Plain Task Force 07/07/09 A RESOLUTION REQUESTING THE USDA NATURAL RESOURCES CONSERVATION SERVICE EXPEDITIOUSLY COMPLETE SOILS SURVEYS IN THE SEWARD AREA WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area (SBCFSA) repeatedly; and WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since 1986; and WHEREAS, there are currently no accurate soils maps available for the lands within the SBCFSA; and WHEREAS, accurate soil mapping is necessary to help define historic flood zones and to predict effects of future flooding events; and WHEREAS, to provide the best possible management for flooding issues within the SBCFSA accurate soils mapping is necessary; and WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force and the SBCFSA are taking every reasonable action to minimize future flood damage; and WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils maps to allow analysis of historic flood events and for use in designing flood prevention structures and flood reduction planning; and WHEREAS, the KPB Flood Plain Task Force passed a resolution recommending that the assembly request the USDA Natural Resources Conservation Service to expeditiously complete soils surveys in the Seward area for the purposes described above; and WHEREAS, the planning commission reviewed this resolution at its June 22, 2009, meeting and recommended adoption by unanimous consent; and WHEREAS, the City of Seward Advisory Planning Commission reviewed this resolution at its meeting and recommended ;and Kenai Peninsula Borough, Alaska Resolution 2009-0~8 Page 1 of 2 WHEREAS, the SBCFSA board reviewed this resolution at its meeting and recommended ; NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH: SECTION 1. That the Kenai Peninsula Borough Assembly requests that the USDA Natural Resources Conservation Service prioritize the SBCFSA for completion of a soils survey as soon as possible. SECTION 2. That copies of this resolution shall be sent to USDANatural Resources Conservation Service, Environmental Protection Agency (EPA), and SECTION 3. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH DAY OF ,IDLY, 2009. Milli Martin, Assembly President ATTEST: Johni Blankenship, Borough Clerk Yes: No: Absent: Resolution 2009-058 Page 2 of 2 C7 O Kenai Peninsula Borough, Alaska WHEREAS, the SBCFSA board reviewed this resolution at its meeting and recommended NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH: SECTION 1. That the Kenai Peninsula Borough Assembly requests that the USDA Natural Resources Conservation Service prioritize the SBCFSA for completion of a soils survey as soon as possible. SECTION 2. That copies of this resolution shall be sent to USDA Natural Resources Conservation Service, Environmental Protection Agency (EPA), and SECTION 3. That this resolution takes effect immediately upon its adoption. ADOPTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 7TH DAY OF JULY, 2009. ATTEST: Johni Blankenship, Borough Clerk Yes: No: Absent: Milli Martin, Assembly President Resolution 2009-058 Kenai Peninsula Borough, Alaska Page 2 oft ~9 Sponsored by: Administration CITY OF SEWARD, ALASKA PLANNING AND ZONING COMMISSION RESOLUTION 2009-19 A RESOLUTION SUPPORTING COUNCIL REQUESTING THE USDA NATURAL RESOURCES CONSERVATION SERVICES EXPEDITIOUSLY COMPLETE SOILS SURVEYS IN THE SEWARD AREA WHEREAS, flooding has occurred in the Seward-Bear Creek Flood Service Area (SBCFSA) repeatedly; and WHEREAS, a federal disaster has been proclaimed within SBCFSA three times since 1986; and WHEREAS, there are currently no accurate soils maps available for the lands within the SBCFSA; and WHEREAS, accurate soil mapping is necessary to help define historic flood zones and to predict effects of future flooding events; and WHEREAS, to provide the best possible management for flooding issues within the SBCFSA accurate soils mapping is necessary; and WHEREAS, the KPB Flood Plain Task Force and the SBCFSA are taking every reasonable action to minimize future flood damage; and WHEREAS, the KPB Flood Plain Task Force has identified the need for accurate soils maps to allow analysis of historic flood events and for use in designing flood prevention structures and flood reduction planning; and WHEREAS, the SBCFSA Board supported this resolution at its July 6, 2009 meeting; and WHEREAS, the Kenai Peninsula Borough Assembly will review this resolution at its July 7, 2009 meeting; and WHEREAS, the Seward City Council will review this resolution at its July 13, 2009 meeting. NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING AND ZONING COMMISSION, that: Section 1. Council officially requests that the USDA Natural Resources Conservation Service prioritize the SBCFSA for completion of soils survey as soon as possible. Section 2. Copies of this resolution shall be sent to USDA Natural Resources Conservation Service, Environmental Protection Agency (EPA) and the Kenai Peninsula Borough. ~® CITY OF SEWARD, ALASKA Resolution 2009-19 Section 3. This resolution takes effect immediately upon its adoption. PASSED AND APPROVED by the Planning and Zoning Commission of the City of Seward, this 7~' day of July, 2009. THE CITY OF SEWARD, ALASKA Sandie Roach', Chair AYES: Ecklund, McClure, Morgan, Roach', Stauffer NOES: None ABSENT: Heinrich ABSTAIN: None VACANT: One ATTEST: Jean Lewis City Clerk, CMC (City Seal) ~~ City of Seward, Alaska City Council Minutes June 22, 2009 Volume 38, Pa e CALL TO ORDER The June 22, 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 Louis Tiner led the pledge of allegiance to the flag. ROLL CALL There were present: Clark Corbridge presiding and Willard Dunham Jean Bardarson Betsy Kellar Bob Valdatta Marianna Keil Tom Smith comprising a quorum of the Council; and Phillip Oates. City Manager Jean~Lewis, City Clerk Cheryl .Brooking, City Attorney 'ABSENT -None CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING Keith Campbell requested council support and approval for Resolution 2009-053 for the issuance of GO bonds_on the Library/Museum Project, and also for Resolution 2009-054 which would pay for the bonds with a half cent sales tax increase. Campbell stated that if these issues were put before the voters, the Seward Library/Museum Building Committee would help to sell the project to the community. Monica Hinders had submitted paperwork to be on the Historic Preservation Commission. She introduced herself and stated she would make them proud for their appointment of her. David Squires, received a late fireworks permit request for the McDonald property on Mile 2 of Nash Rd for Saturday night at 5 pm. He requested an addition to the agenda to schedule a special meeting for this and hoped it would be approved. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson/Dunham) Approval of Agenda. and Consent Agenda ~2 City of Seward, Alaska City Council Minutes June 22, 2009 Volume 38, Pa e The following was added to the agenda: Scheduling of a special meeting for a Carlile Fireworks on city land request. The following was removed from the consent agenda: Resolution 2009-051, Accepting A Grant From The State Homeland Security Grant Program In The Amount Of $350,000 For. The Purpose Of Expanding And Updating Infrastructure Security Cameras. Motion Passed Unanimous The clerk read the following approved consent agenda items: The June 8, 2009 Regular City Council Meeting Minutes Were Approved Monica Hinders Was Appointed To The Historic Preservation Commission With A Term To Expire May 2012. Resolution 20.09..-050, Authorizing The Discharge Of Fireworks By The Chamber Of Commerce During The 2009 Independence Day Celebration. Resolution 2009-052, Authorizing A One Year Contract For $449,472.00 With The State Of Alaska, Department Of Corrections, To Provide For Operating The Seward Community Jail And Housing Prisoners Charged And/Or Sentenced Under Alaska Statutes. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Proclamations and Awards Mayor Corbridge highlighted the displayed award trophies sent by Mayor Sunagawa from Obihiro Japan that were gifted annually to the Mt. Marathon Race for the 1St 2"d and 3rd place winners and the Silver Salmon Derby Trophy gifted by Toshio Otomo, Chairman of the Obihiro Committee for International Friendship. A proclamation was read for Parks and Recreation Month. Alaska Flag Day was recognized with a proclamation. City Manager's Report. City Manager Phillip Oates stated there were no expenditures between $10,000-$50,000. He informed that the city was requesting sealed competitive proposals for the Evan Casey Skate Park upgrade and had attached and provided the criteria for the selection process for the council to see. He notified that as of June 18, 2009, the Alaska Department of Health and Social Services had confirmed 23 cases of H1N1 (Swine Flu) in Alaska. ~~ City of Seward, Alaska City Council Minutes June 22 2009 Volume 38, Page • Library/Museum Project. The Library Museum Building Committee thanked those who attended the site dedication on June 18, 2009. Dot Bardarson, Kyle Schneider, and Seward Singers providing the tunes and the Seward Ministerial Association blessed the project. • Harbor/SMIC. The harbor had taken steps to permit an improved fish-cleaning station in the NE area. The Alaska Department of Fish & Game had committed $100,000 for this project, but approximately $300,000 in additional funds would be needed to reach completion. PACAB held a work session to outline capital improvement priorities and funding possibilities for the Seward Marine Industrial Center Storage and Maintenance Yard. The prioritized improvements with grant applications already completed for the top two are: o Vessel Washdown Pad & Water Treatment Facility o Electrical Infrastructure Improvements o Drainage, Culverts, D-1 Gravel Layer, and Water Infrastructure o Fence surrounding Block 4 of SMIC o Public Restrooms New fish hanging racks would be installed on Q float, along with new life rings being installed at travel lift docks in accordance with OSHA requirements. • Community Development. A 'volunteer appreciation picnic was scheduled at the Branson Pavilion for Friday June 26"' beginning at S p.m. On June 2, 2009, Community Development partnered with the Alaska Small Business "Development Center and the Procurement Technical Assistance Center (PTAC) to provide a free Government Contract Seminar titled 10 Steps to Successful Government Contracting. Oates informed that the Planning & Zoning Commission had begun examination of theTitle 15 code revisions. These revisions had been distributed to the Port and Commerce Advisory Board, Historic Preservation Commission, City Council, were posted on Seward City News and were made available to the public. Additional work sessions would be scheduled. Oates also presented information and .photographs of the progress at Seward Mountain Haven. Oates extended his thanks to the fire department volunteers that responded to sixteen emergency calls while the Fire Chief and the Deputy-Fire Chief were away in Michigan purchasing the new firetruck. Other Reports, Special Presentations An Overall Audit Presentation Was Given By Michelle Drew of Mikunda, Cottrell & Co. A Wellness-For-All Presentation Was Given By Patty Beals. This groups mission was to establish Seward as a city of wellness. They had focused on five areas for improvement; reducing tobacco use, fostering fitness, oral health, awareness and access group to resources, and choosing healthy behaviors. 94 City of Seward, Alaska June 22, 2009 City Council Minutes Volume 38, Pa e NEW BUSINESS Resolution 2009-049, Authorizing The City .Manager To Amend And Extend The Maintenance And Operating Agreement With Seward Ship's Drydock, Inc. Through September 30, 2010. Motion (Keil/Kellar) Approve Resolution 2009-049 Oates wished to summarize the background and- justification of the long pursued development of the Seward Marine Industrial Center for the public. The city had extended over $40 million dollars for improvements 'and infrastructure to this area. An initial maintenance and operating (M&O) agreement was signed on 4/25/95 between the city and' he operator, Seward Ships Drydock. A second M&O agreement was signed on 3130/2000, and extended in 2005. The current M&O agreement now expires 6/30/2009.' The Seward City Council went into executive session on 3/10/2009 to discuss possible litigatioriwith Seward Ships Drydock (SSD) in regards to their maintenance and operating agreement, and approved a unanimous motion which found them in default of the M&O agreement and authorized the_city manager to discuss defects and conditions with SSD in whatevex detail deemed appropriate'. If addressed defects were corrected, the council was willing to discuss negotiations for a successor M&O agreement. If conditions and timelines set by the citymanager-failed to be islet, the council would proceed to terminate the M&O agreement because of default.If the council terminated the M&O agreement, the city would act to terminate Seward Ship's'Drydock'sgrouisd lease within 30 days thereafter. At another executive session held on 6/1/2009, the city council again gave direction to the city manager on how to proceed with SSD on the M&O agreement. ..Oates had discussions with SSD on the cofferdam cells and the importance of having the splash zone coated to avoid further corrosion. He felt a 15-month extension gave SSD the time needed to determine the best course of action in accordance with the M&O agreement. Coating needed to be applied and. completed by SSD before 9/30/2010. If completed the M&O agreement may be extended beyond that date, subject to council approval. This 6t" amendment would extend the term period for the purposes of allowing the operator to cure all defaults and to amend Section 3.04 changing the inspection agency from NEI Syncrolift, Inc to Pearlson Shiplift Corporation for certain annual inspections, all subject for attorney review. Passage of this resolution today was important because it would supersede the council motion passed on 3/10/2009 which finds SSD in default of the M&O agreement on 6/30/2009. Oates indicated the maintenance of the shiplift was a primary concern for the city, and with three areas of the M&O agreement needing attention: The cathotic protection system, which the consensus from council and independent inspectors was it had not been maintained properly. Arbitration found this would be a capital improvement but did not address whether the facility had been properly maintained. There 95 Ciry of Seward, Alaska City Council Minutes June 22 2009 volume 38, Pale was still an issue on how much damage was done and if this system had been properly maintained. 2. The flash zone area, which needed coating to protect the metal from the salt water. The city's position was that if this coating had been applied, it was not applied properly and not maintained over the years. SSD argued this was a capital improvement. 3. Maintenance of the Synchrolift, which was a lessor'concern and had some issues because of changes in manufacturers. Oates concluded that this resolution protectedthe city's position that SSD is in default with the M&O agreement but allowed additional time for SSD to have the facility properly maintained. He pointed out that Seward Ship's Drydock disagreed that they were in default. Oates clarified it was not the city's intent to kick out the operator, but to insist the facility be properly maintained. City Attorney Cheryl Brooking stated the alternative for not approving this sixth amendment was that the existing agreement would expire in eight days. At that point, the city would take over the lift and either shut it down or run it themselves. Seward Ships Drydock was in default now and they could either agree with the extension or walk away. She emphasized there were two agreements which were somewhat linked. together. The agreement for the maintenance and operation of the facility and an upland lease, that the city had paid $400,000 in lease credits to make sure the splash zone coatings were .replaced, which the city contended weren't done. Brooking stressed the sheet pile and cofferdam cells were actively corroding at an aggressive rate. If the M&O agreement was terminated he city could terminate the upland lease with a 30-day notice. Valdatta wanteda definite completion date set for the maintenance. Dunham thought this was in the best interest for both parties even though it was not completely palatable for either side. He understood Whitman disagreed and was not pleased but noted this needed to be worked out for the parties to co-exist in the future. He stated this agreement gave crock-solid date for the repairs to be fixed. In response to questions by Keil, Oates stated only the lease could go to arbitration. He had informed D.J. Whitman that depending on all the factors, Oates was prepared to consider an extension of the lease'as a capital improvement and take that to the council if the particulars were made known during this extension. Brooking stated all indications were a refusal to do the work. Amendment (SmithBardarson) On the 6`h WHEREAS, remove the words "will use its best efforts to improve the condition of the City's Shiplift Facility" and replace it with "will provide the city with its recommended procedure which complies with NACE standards for correcting the splash zone maintenance problem. The City will review the recommended procedures and g~ City of Seward, Alaska City Council Minutes June 22, 2009 Volume 38, Page if accepted by the City, Seward Ship's Drydock will complete the corrected maintenance by September 30, 2010. Amendment Passed Yes: Dunham, Bardarson, Valdatta, Smith, Corbridge No: Kellar, Keil The rules were suspended by unanimous consent to allow D.J. Whitman to speak and answer questions fora 15 minute period. In response to questions by council, D.J. Whitman stated he disagreed on being in default and also disagreed with the terms of this amendment. His suggestion was to extend the current agreement for 90 days until both parties could come to an understanding. He thought this agreement was more like a demand and he also bought the NACE standards language was too vague. He didn't disagree that there was a problem.. Whitman announced the problem started in 1983 not 1995. He acknowledged the sheetpiles absolutely'n~ededto be re-coated. He felt it was now a major capital improvement and could not be band-aided. If SSD was going to spend $500,000 they would want their lease extended and credits for it. Whitman thought he agreement was a writtendemand and too open-ended and didn't state that anv .capital credit vUOUld be ahowed. He also felt he didn't get a fair chance to go over this agreement beforehand: In response to questions by Council member Smith, Whitman had agreed to perform all the routine, annual and `regular maintenance. He noted there was also a specific list of deferred maintenance that was a hit list from NEI Synchrolift which he thought was all tied together. Whitman stated after reading NEI Synchrolift and Lloyd's reports you would find the cell structure and piling mentioned in them. He agreed one of the major items of contention was whether this maintenance was a capital improvement or general maintenance item. Whitman felt it was a capital improvement because the coating system had outlived its useful life and was put on in 1983 prior to the driving of the sheetpiles. Smith felt paint coating was preventive maintenance, not a capital improvement. Whitman stated the coating was designed to last 15-20 years, and had ten years of failure on it when they accepted it. Dunham saw this as a way to get this accomplished between the two parties. He didn't see it as a do or die situation, but a workable situation for the next 15 months and thought there shouldn't be anymore side-stepping. Bardarson concurred this was not a capital improvement, but both parties needed to share responsibility and noted Section 3 stated both parties must agree. ~~ City Council Minutes Ciry of Seward, Alaska Volume 38, Page June 22 2009 Whitman stated their attorneys had advised them not to sign this agreement as written. Suspension of rules ended. Harbormaster Kari Anderson stated they had contacted SSD about the problem with the protective coatings in 2008, so this was not a newly addressed issue. Oates stated this was not the partnership.. he would hope for. Every step had been a struggle. Oates reiterated he was not trying to nul them out of tlxe shiplift, but wanted the City's facility maintained. It was his contention that SSD was in default of the M&O agreement for not maintaining the cathotic protection s~~stezn and the maintenance of the coating on the splash zone. He reminded that the city had 3rd. party independent decisions that supported the city's claim. Oates had no objection to consider this as a capital improvement but needed the system in place to protect it from this point forward. 90 days will not resolve this issue and would only result in more of the same. Smith stated the cty,_owned the facility and had a vested right to agree to how it was maintained. He felt this 1 Smonth extension and the requirement to fix it was reasonable. If SSD felt they received it that way in 1995, they shouldn't have accepted it. He also felt this was a maintenance issue...: lu response to questions by Keil,City Attorney Cheryl Brooking clarified that arbitration was a provision in the lease itself. The lease was also scheduled to expire the end of June 2009. The lease pro~~ision allowed extensions forcapital improvements done on either the leased area or the shiplift facility which ilzcluded the synchrolift and the dock. The reason this went to arbitration was :because the capital improvement suggestion was replacement of the electrical cathotic protection system which council felt was already a required obligation under the M&O agreement. It was not a new mprovementthat would qualify for a lease extension. The arbitrators felt the lease did not define improvement and authorized the extension of the lease to 2013. Brooking stated the arbitrators specifically did not address any obligations under the M&O agreement or whether it was already required. City Council took a ten minute recess at 8:50 p.m. City Council resumed at 9:00 p.m. Amendment (KeiUBardarson) Add a new "WHEREAS, upon completion of the coating the city may consider the cost of the coating as a capital improvement. Keil hoped this amendment would get the parties where they needed to go because she couldn't stand litigation. Amendment Passed Unanimous Amendment (Bardarson/Keil) Add the word "substantially" to Section 1 ~~ City of Seward, Alaska City Council Minutes June 22, 2009 Volume 38, Page Amendment Passed Unanimous Main Motion Passed as Amended Unanimous Resolution 2009-051, Accepting A Grant From Ttie State Homeland Security Grant Program In The Amount Of $350,000 For The Purpose Of Expanding And Updating Infrastructure Security Cameras. Motion (Kellar/Bardarson) _~pprai~e Resolution 2009-051 Oates stated the city had recently completed a security vulnerability assessment to protect city of Seward infrastructure. Acceptance of this grant would better enable Seward to protect critical and expensive infrastructure. It was his position to make the positioning of these cameras a council matter. He reminded this resolution was only for accepting the grant. Oates said these cameras were monitored occasionally by dispatchers and were used'to solve crime and as evidentiary evidence. Some members wanted a policy developed on how these cameras would be installed, where located, how controlled, and'approved finally bythe city council. Council requested aid Oates had. no objection bringing a written surveillance policy for the securih~ cameras back=to`the council. 1la~~of- Corbridgc dcclar-ed .Council member Keil's comments out of order. Kellar wanted the cameras used for security vulnerability assessment issues only. She did not think it was the role ofgovernment to follow citizens. Keil apologized. She just objected to having cameras on the streets and wanted people to be aware when they were under surveillance. Oates mentioned having cameras in the harbor had been extremely valuable for deterring crime in that area. Amendment (Kellar/Keil) In the 2"d WHEREAS, delete the words "and expansion of Oates stressed it would kill the grant without that wording in the resolution. Amendment Failed Unanimous Motion Passed Yes: Smith, Valdatta, Bardarson, Dunham, Corbridge No: Kellar, Keil ~9 City of Seward, Alaska City Council Minutes June 22 2009 Volume 38, Page Resolution 2009-053, Providing For The Submission To The Qualified Voters Of The City Of Seward The Question Of The Issuance Of Not To Exceed $5,000,000 In General Obligation Bonds Of The City To Finance All Or A Portion Of The Construction Of A Combined Library/Museum Capital Improvement Project. Motion (KeiVSmith) Approve Resolution 2009-053 Oates stated this resolution put the question on the~ballot this fall. He stated if the vote of the people was successful, it would come back to couneiP only after all other funding was available and binding. A revenue source would have to.be decided. Valdatta was concerned and wondered if the people could afford it in this economy. Dunham understood if the'match money wasn't there, it wouldn't happen. There would have to be a commitment by the community far a portion of this to be paid. 'He also mentioned that in this market there was a chance the bonds wouldn't sell. Oates stated the community would need to put in matching funds and have this project at 35% design to address funds from the legislature.' Motion Fussed - Unanimous Resolution 2009-054, Providing For The Submission To The Qualified Voters Of The City Of ~~ Seward,~An ~~~d~~isc-ry Question OnWhether To Increase The Sales Tax Rate By 0.5% As Needed To Fund Operating And Capital Costs Of A New Library/Museum, Understanding That Sales Tax Revcnues'Canuot Be Dedicated For A Specific Purpose. Motion (Bardarson/Dunham) Approve Resolution 2009-054 Oates stated this was an advisory vote because the city council had the authority to establish a sales tax regardless of the vote of the people. All revenue sources were considered but sales tax was picked because it want across all demographics. A half cent increase would put total sales tax at 7.5% and would g~r~erate $500,000 a year. Oates reported this would fund the cost of the debt service of the $5 million dollar bond plus the full cost of operation (possible addition of 3 people) and maintenance of the new facility. Council could repeal the tax once repaid but could not dedicate it as a revenue source for repayment of the GO bonds. The building committee thought this was the fairest way to re-pay the bonds. City Attorney Cheryl Brooking stated the payoff period would be 25-years and clarified a sales tax was an operating tax. A future council could get rid of it. The amount would have to be appropriated every year to pay the bonds. This would provide the sufficient funds for the additional costs. Libraries were not typically a money making venture. Motion Passed Unanimous OTHER NEW BUSINESS ~. ~ Q City of Seward, Alaska June 22, 2009 City Council Minutes Volume 38, Pa e A work session on the evaluation process was scheduled for July 13, 2009 at 6:00 p.m. A special meeting was scheduled by Mayor Corbridge for Wednesday, June 24, 2009 at 5:15 p.m. to address a resolution allowing Carlile Transportation Systems to shoot off fireworks on their land within the city limits. INFORMATIONAL ITEMS AND REPORTS (r'1'o crctionrequirec~ COUNCIL COMMENTS Keil wanted to make sure Obihiro, Japan was properly thanked for the beautiful trophies they traditionally sent each year. Smith after a long meeting, was quoted as saying; "if we wrote the constitution we would still be a colony." Dunham spoke of the letter Senator Stwens sent about Wyndam. He asked for clarification on the difference between bids for the' lift station, ..and congratulated the Chamber of Commerce ahead of time on their 4''' of July festivities they always put on. He was sorry to hear of the passing of Frank Dieckgraeff. Dui~llam said Dieckgraeff was a real friend and a huge booster of the community and he sent-his sincere ympathy to his family. .CITIZENS' COMMENTS Jerry Woods said the council was welcome to tax him for the new library/museum project. He was on the committee and stated they had put in many hours into this project. He wanted it noted that this was the day this facility got off the ground and started. He thanked the city council for their support. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS Oates mentioned that around $11,000 was involved in supporting the Senator Stevens letter on Wyndam and he would possibly bring it back to the council. He said the lift station needed workable parts and he would see that council got their answer soon. Keil thanked the library/museum committee for all their hard work. ADJOURNMENT The meeting was adjourned at 10:00 p.m. ~~~ City of Seward, Alaska City Council Minutes June 22 2009 Volume 38, Page Jean Lewis Clark Corbridge City Clerk Mayor (City Seal) ~~~ Ciry of Seward, Alaska Ciry Council Minutes June 24, 2009 Volume 38, Pa e CALL TO ORDER The June 24, 2009 special meeting of the Seward City Council was called to order at 5:23 p.m. by Vice Mayor Willard Dunham OPENING CEREMONY Fire Chief David Squires led the pledge of allegiance to the flag. ROLL CALL There were present: Willard Dunham presiding and Jean Bardarson Betsy Kellar Tom Smith comprising a quorum of the Council; and Kirsten Vesel, Assistant City Manager Jean Lewis, City Clerk David Squires, Fire Chief ABSENT -Clark Corbridge, Marianna Keil, Bob Valdatta CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING -None APPROVAL OF AGENDA Motion (Bardarson/Kellar) Approval of Agenda Motion Passed Unanimous NEW BUSINESS Resolution 2009-055, Authorizing The Discharge Of Fireworks For Carlile Transportation Systems During The 2009 Independence Day Celebration. Motion (Kellar/Bardarson) Approve Resolution 2009-055 Assistant City Manager Kirsten Vesel stated Carlile Transportation systems had requested a permit from the city to conduct a fireworks display in conjunction with the 4`h of July festivities for a family event on their property on Mile 2 of Nash Road, which was inside the city limits and needed council approval. The site was approved by the Fire Chief, insurance was produced and Vesel recommended the approval of this resolution. 1~3 City of Seward, Alaska City Council Minutes June 24 2009 Volume 38, Page Motion Passed Unanimous COUNCIL COMMENTS -None CITIZENS' COMMENTS -None COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS -None ADJOURNMENT The meeting was adjourned at 5:29 p.m. Jean Lewis, CMC City Clerk (City Seal) Willard Dunham -:Vice Manor ~. J :~,~ ~~ i w ' `~'' ~ ~ U .~ °o ~ • o ~ c~ a ~ ~~ ~ ~ o~ z °~vo ~ ~ • ~ r., • ~ ~ ~ '~ ~ ~ ~ ~ ~ ~ ~ V ~ `~F ,,, [--~ a}~ - ~ ~, ~ ~' ~ ~ ~ a~ ~ :~ V ~ ~ ~ v ~ ~ V ~ ~ ~ v '~ ~ ~ 4~ o F..~ ~ ~ -~ .ti ~ ~ o ~ M ~ ~ N ~ ~ ~~ w E"~ U ~ '~ O H .~ G N w 4~ v o~ U v' S U 9 July 2009 August 2009 2 ' S M T W T F S S M T W-T F S y QQ ~ <1 2 3 4 1 5 b 7 8'' 9 10 1S 2 3 4 5 6 9 8 12 13 14 15 16 17''18 9 i0 11' 12 13 14 15 19 20 21 22 23 24 25 16 17 18'i9 20 21 22 26 27 28 29 30 31 23 24 25 26 27 28 29 30 31 Monday Tuesda Wednesday T7iursday ___ Friday _ _ -- July 1~ _ 2 I 6 - - 7 3 q - -- 1 ---- 7:30pm P&Z Meeting ( 6:OOpm Kenai Peninsula 11,;30am Seward - Borough Task Cori~munity Force Meeting library &;Museum building CamrE~ittee 3 1~ 1 16 `2 6:OOpm CC WS - - - '6:30pm P&Z Work Session ~ 12:OOpm PACAB Work T _ .- -- --- 9:OOam Social Security Session ~ Rep 7;OOpm City Council 6:30pm Historic ~ Meeting Preservation Meeting I ~; Sc `° (1 I,W ~( ~ ~ 7:OOpm City Council Meeting i Nanci Richey 1 7/8/2009 2:59 PM ~'~ A u ~ u ~~ ~ 0 O ~ August 2009 September 2009 S M T W T F S S M T W T F S 1 1 2 3 4 5 2 3 4 5 6 7 8 6 7 8 91D1112 9 10 11 12 13 14 15' 13 14 15 16 17 18 19 16 17 18 19 20 21 22,' 20.21 22 23 24 25 26 23 24 25 26 27 28 29 ' 27 28 29- 30 30 31--, .Monday Tuesday Wednesday Thursday Friday August 3 4 _ 5 6 7:30pm P&Z Meeting 12:OOpm PACAB Meeting --- 10 11 - ---- -- - - - - ----- - ---12 - 13 - _ _ ---- 1 7:OOpm City Council - 11:30arr, Seward ~~ ___ __ _ _ _ ___ _ _ Meeting Community Ubrary & Museum Building Committee _ _ _ 17 18 19 --- - 20 -- _ _ _ 6:30pm P&Z W4t'k Session 12:OOpm PACAB Work 9:OOam Social Security , _ _ 2 Session Rep 6;30pm Historic Preservation Meeting _ 24 ----- _ 25 26 - 27 - 2 7:OOpm Ciry Council ~ - - - Meeting ~ I - 31 - -- - - - - l T - - - - - nip.,..: n:.-~.,... _ _ _ - - - - - _ _~ - 7/8/2009 2:59 PM ~~ 7