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HomeMy WebLinkAbout06272011 City Council Packet Seward City Council Agenda Packet rF! � Welcome USS Lake Erie June 27, 2011 City Council Chambers Beginning at 7:00 p.m. 1963 1965 2005 The City of Seward, Alaska CITY COUNCIL MEETING AGENDA All- AmBNca City iT 1 I 1 F {Please silence all cellular phones and pagers during the meeting} 4r, ► June 27, 2011 7:00 p.m. Council Chambers 1. CALL TO ORDER Willard E. Dunham 2. PLEDGE OF ALLEGIANCE Mayor 3. ROLL CALL Term Expires 2011 4. CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING [Those who Jean Bardarson have signed in will be given the first opportunity to speak. Time is Vice Mayor limited to 2 minutes per speaker and 30 minutes total time for this Term Expires 2012 agenda item.] 5. APPROVAL OF AGENDA AND CONSENT AGENDA [Approval Robert Valdatta of Consent Agenda passes all routine items indicated by asterisk ( *). Council Member Consent Agenda items are not considered separately unless a council Term Expires 2011 member so requests. In the event of such a request, the item is returned to the Regular Agenda] Tom Smith Council Member 6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Term Expires 2011 A. Proclamations and Awards Vanta Shafer 1. Navy Cruiser Port of Call Welcome .... 4 Council Member 2. Certificate of Memoriam for William Noll ... 5 Term Expires 2011 B. City Manager's Report Marianna Keil C. City Attorney Report Council Member D. Mayor's Report Term Expires 2012 E. Other Reports and Presentations Ristine Casagranda 1. Audit Presentation by John Bost Council Member 2. Jurjiro Wada Project update Term Expires 2012 7. PUBLIC HEARINGS Phillip Oates A. Resolutions Requiring Public Hearing City Manager 1. Resolution 2011 -050, Authorizing The City Manager To Johanna Kinney Enter Into A Lease Agreement With Global Tower Assets, City Clerk LLC, For Lot 1, Block 6, Fourth Of July Creek Subdivision, Seward Marine Industrial Center, For The Purpose Of Cheryl Brooking Constructing And Operating A Communications Tower....Pg. 6 City Attorney City of Seward, Alaska Council Agenda June 27, 2011 Page I 8. UNFINISHED BUSINESS A. Items Postponed from a Previous Agenda 1. Resolution 2011 -049, Appropriating Funds In An Amount Up To $1,500,000 For Purposes Of Paying Costs Associated With The Proposed Seward Community Library Museum. (Clerk's Note: postponed from the June 13, 2011 council meeting. Original motion made by Smith and seconded by Bardarson) P 47 2. Resolution 2011 -048, Designating $100,000 Of General Fund Undesignated Fund Balance To Cover Costs Associated With The Kenai Peninsula Borough's Implementation Of The City Of Seward's Increase In Sales Tax On Alcohol Beverages And Tobacco Products. (Clerk's Note: postponed from the June 13, 2011 council meeting. Original motion made by Shafer and seconded by Keil) .Pg. 50 3. Resolution 2011 -036, Amending The Surveillance Camera Policy. (Clerk's Note: postponed from the May 9, 2011 council meeting. Original motion made by Bardarson and seconded by Keil) Pg. 54 9. NEW BUSINESS A. Resolutions *1. Resolution 2011 -052, Authorizing The City Manager To Approve An Intergovernmental Cooperative Agreement Between The State Of Alaska, Department Of Natural Resources, Division Of Forestry And The City Of Seward Pg.62 *2. Resolution 2011 -053, Authorizing A One Year Contract For $533,210.00 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 Pg. 80 *3. Resolution 2011 -054, Accepting The Resignation Of City Manager Phillip Oates And Setting The Terms For His Departure From City Employment Pg. 95 4. Resolution 2011 -055, Adopting The Climatic Design Criteria For The Electric Utility Of All Distribution Utility Poles South Of Nash Road For The Purpose Of Construction And Attachment Pg. 99 B. Other New Business Items *1. Approval of the June 13, 2011 City Council Regular Meeting Minutes Pg. 112 *2. Reschedule the July 11, 2011 Work Session to discuss Building Codes to August 8, 2011 at 5:45 p.m. (requested by staff) *3. Recommend Cindy Ecklund to the Kenai Peninsula Borough Planning Commission . Pg. 124 4. Discussion on Council Position on Redistricting (Seward Senate and House Redistricting Plan) City of Seward, Alaska Council Agenda June 27, 2011 Page 2 5. Direct City Clerk to notice City Manager position and make any adjustments to current job description. 10. INFORMATIONAL ITEMS AND REPORTS 1. Resolution 2011 -003, A Resolution Of The Port And Commerce Advisory Board, To Recommend The City Of Seward Investigate Funding Opportunities Including Grants For Constructing And Installing The Slips Connected To Z Float In The Seward Harbor.. Pg. 125 11. COUNCIL COMMENTS 12. CITIZENS' COMMENTS [5 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 June 27, 2011 Page 3 A , , k I ..,„ ,,,, ..... City of Seward v 1 F Certificate of Welcome ,± •�. t i Awarded To: 1t siL," Th e a e rie The Seward City Council would like to welcome the captain and crew of the USS Lake Erie. Thank you for --" choosing Seward as your destination. We hope your stay is pleasant and productive. Please come visit us anytime! Now therefore I, Willard E. Dunham, Mayor on behalf of the Seward City Council, wish to personally welcome the United States Navy to Seward and thank them for their contributions in Alaska and service to the United States of America. Dated this 27 day of June 2011. if Willard E. Dunham, Mayor . 4 k y+ WiJJiam Noll The Seward City Council is gathered together in memoriam to honor former Mayor William "Bill" Noll. ' '- He pioneered the first successful cooperative agreement between Korea and Alaska � f or the export of Alaskan coal. As ma he helped expand and stabilize the ex � or, � _ p Y� export p p p facilities in Seward, the facility that continues to operate today and sets record coal 1 t . ' .. shipments. Seward would not have an export coal facility if not for the efforts of Noll 1 and Suneel owner Tae II Kim of Korea. He also served as mayor during the Exxon ' ... _ Valdez Oil Spill and aided in the settlement money for the Alaska Sealife Center. , - g v" S On behalf of the Seward City Council, we hereby present this Special Recognition in fir°* 6- 1 N. to the family of William Noll and extend our sincere condolences. r , Dated this 27th day of June, 2011 December 6, 1938 - June 13, 2011 Bob Valdatta, Councilmember Marianna Keil, Councilmember Tom Smith, Councilmember Vanta Shafer, Councilmember Ristine Casagranda, Councilmember Jean Bardarson, Vice Mayor Willard E. Dunham, Mayor Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2011 -050 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A LEASE AGREEMENT WITH GLOBAL TOWER ASSETS, LLC, FOR LOT 1, BLOCK 6, FOURTH OF JULY CREEK SUBDIVISION, SEWARD MARINE INDUSTRIAL CENTER, FOR THE PURPOSE OF CONSTRUCTING AND OPERATING A COMMUNICATIONS TOWER WHEREAS, Global Tower Assets, LLC, ( "Lessee ") has requested a lease agreement with the City of Seward for 10,000 square feet, more or less, within Lot 1, Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough Plat number 2001 -2, Seward Recording District, Third Judicial District, State of Alaska; and WHEREAS, this parcel is vacant land identified in the Municipal Lands Management Plan as available for lease in the Seward Marine Industrial Center (SMIC); and WHEREAS, this lease will enable the Lessee to construct and operate a communications tower and to sublet to additional wireless communication providers upon receiving written authorization from the City; and WHEREAS, the proposed lease parcel is zoned industrial and the intended use is authorized under current zoning regulations; and WHEREAS, the lease term is through July 31, 2016 however Article 2.2 acknowledges the Lessee shall have the right, at the Lessee's option to further extend the Lease Agreement for four (4) additional periods of five (5) years each for possible options to extend until July 31, 2036; and WHEREAS, the lease rental rate is based on a 2011 appraisal report and includes rental adjustments every five years based on fair market rental value and interim rental adjustments based on the Consumer Price Index. 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 a lease agreement with Global Tower Assets, LLC, in substantial form as presented at this meeting, for Lot 1, Block 6, 4 of July Creek Subdivision, Seward Marine Industrial Center. CITY OF SEWARD, ALASKA RESOLUTION 2011 -050 Section 2. This resolution shall take effect thirty (30) days after its adoption and posting. Upon effectiveness of this resolution, the lease will be effective July 31, 2011. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 27 day of June, 2011. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney City Clerk (City Seal) 1 Council Agenda Statement Meeting Date: June 27, 2011 P COF SF� 9 Through: Phillip Oates, City Manager u �' o From: Kari Anderson, Harbormaster '1tAS0" Subject: Lease for Lot 1, Block 6 SMIC with Global Tower Assets BACKGROUND & JUSTIFICATION: Initially, McCaw Cellular Communications, Inc., entered into a lease with the City for 1,320 square feet, more or less, within Lot 1, Block 8, Fourth of July Creek Subdivision, Seward Marine Industrial Center. This leased area encompasses a cell phone tower and associated electric infrastructure. The Lessee's interests were assigned several times, and in Resolutions 2005 -23 and 2010 -062 extended the term of this lease (now with DCS Tower Sub, LLC). However, erosion problems threaten the existing tower and lease site at Lot 1, Block 8. After evaluating several sites at SMIC, Global Tower Assets has decided to build a new tower at Lot 1, Block 6. This leased area encompasses approximately 10,000 square feet. The attached appraisal report 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 cell phone tower and related communication equipment in conjunction with AT &T's operations as a telecommunications provider. Any improvements to the site and /or subleases will be approved by the City in writing prior to construction. The City will conduct appraisals of its rental property in 2015 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. The previous lease for this parcel expired May 24, 2011 with the Seward Lions Racing Club. INTENT: To propose a new lease with Global Tower Assets, LLC, for Lot 1, Block 6 Seward Marine Industrial Center for the purpose of constructing and operating a communications tower. 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 or Other Plans or Policies: Yes (List Below) No 1. Comprehensive Plan (Economic Development, Support development of modern communications infrastructure) 2. Strategic Plan (Growth Management and Land Use Planning: Promote residential and commercial development inside the city) 3. Other: Seward Marine Industrial Center Development Plan (Goal: Sound, Maximized and Coordinated Development of private and public uplands in support of the needs of the users and visitors. Land use: Uses allowed within SMIC should focus on strengthening and enhancing the area as a center for marine and other compatible industries.) FISCAL NOTE: The annual lease amount is One Thousand, Six Hundred Dollars ($1,600.00) annually, subject to fair market value increases every five years. The rent will be subject to annual CPI increases. A new appraisal for all lease parcels in the Seward Marine Industrial Center is scheduled for 2015. 1- )ri--/- Approved by Finance Department: e,a►ct< ATTORNEY REVIEW: YES X NO RECOMMENDATION Council approve Resolution 2011 - l authorizing the City Manager to enter into a new Lease with Global Tower Assets, LLC for Lot 1, Block 6, 4 of July Creek Subdivision, Seward Marine Industrial Center. 9 i I \ 5 � rih T t x LEGEND I 1 \ 4 _ 0 3 4 - 4t B Found Monument m described 712A CT A -. t. ry I 6 Ss.se aeyilmK b . Found R.bar e AftenM,m Lap 3 ,. MORRIS AVENUE r Stam LS 5nd 132 1994 ( 60' Pr A.0. W) I yo 7 1 founer laat Cop k M ms'se• x 3rcrr q z m tE II e f Stam p and JI — — 4# 59.90' n N 89'25'36' E 341.94' S 8x3(1 Rehor wf h ptmtte (tie lt) 1 1 cased 3 f /4' Bran cap O Sat / ee 2 1 /2" See Pee Lap, Stamped: LS7569 I t T� - < N 89'25'36' "E MeMeasured I ed this Survey . d � f+ �� p is 3 i3 il i .,„,,, • Record ioromo D Plat 97 -27 6 �i ' Sewe Pee ardht g Obtrkt � OG�' ] ttlS 6 S"°'4 C114 tech, • LL I �� 140.eff [�--� n Plat r I9 R C 2 \ y y (no ei VICINITY MAP t• - t w• C �tr,�'P`l o g CERTIFICATE OF OWNERSHIP AND DEDICATION NOTES A e u 40 M1 1' e I hereby certify that we ore the owners of the net property }� • 0 0 shown and described harem and that we hereby adopt this r 1 Thls Subiilvision Is subject to the City of Seward Zoning n '∎' 6 � plan of subdivlslan and by our het consent dedicate Regulations. a 2 ` and grout /)J of easements to the use shown hereon. I 2 The h l0• along Right and 5' each aide of ( o J Z. z ( ) �[•(. Interior r l lo! tk+ea b r d as , a�JO ° Utility Easement No permanent structure shag be constructed or placed within e Utility Easement which would interfere with the ¢b9ity of ^ m o W. Scott Janke. City Maneger a utlity to use the sement O O - ' J O 0 City of Seward 3 Lots within this aubdMekn m -. re m U n P.O. Box 167 may be located within, a dWgnoted S 89'20'15 W 347.64 Seward, AK 99884 Rood hazard eras, Development must comply with Chapter 21 3 y 0 4) i44.44' 9 ; w in ping of the Kenai Peninsula Borough Code of Ordinances. A surrey � � I" 1 o NOTARYS ACKNOIM_EDGEI.IENT to determine the elevation of the property may be required £ prior to axrebuetron, o T o I UA I7 1 Y E (5« Ket. z) w. S. .1,, ire. y ° u, SUBSCRIBED AND SWORN TD B ME THIS Z 4 Tract A, vied shown hereon as Monts Ave end Cigo Street o ? DAY OF tfeduafr , 20 e1 is a service road emcees easement limited to lessees, city In L LOT 2 u ° ti and other authorized pertennet, per Plat 97 -27 S.R.O. o _. I+ u 0 t N 8970'27 E t43.28' 46,791 Sq. ft. - �= CD c WASTEWATER DISPOSAL > m 4 ; tn O r _ •<` __ Plops far wastewater disposal, that meet remdotory "1:. ° o 1 £ rt NOARY'IYOR ALASKA MY COMMIS EXPIRES requirements ore on file of the Department of u - 0 Z a Plan ptnr Environmental Conservetion. m u C m y � u • •:..;- -:Eel ', LOT 3 98970 99.95i t? Z 4 It 26,247 Sq. ft. re =P pr ernetr roo. air el F (.0 o ° , ° AO _ 14,2 ` " , n E. o 6 g _ y ,of r e0, � q' d°� 4+� � �`+ as g ' "r. ' bun Mf \t� � ` l ` .�� .a _ o Block 6 ` 9 - "n,,,r,pdt . . . ceww 2 3/v AkvwMxe ear BLOCK 7 1 . .. . . 'Oj - • 2 1/2 44snhva, ►.• a - en MT x) 1 L — _ —1 —RISE- ; a n 9. a1.1271 BO %. 143 Q O _ 1 744.95' - -- N 89'20'13' E (w a41s,r t• 3•1 As s) 341.58' OW ,7) � "4 s ',e. PLAT APPROVAL TA m SORREL ROAD . Z. °o .1.t. Th!a plat was approved by the Kenai Peninsula Borough Planning (60 P ublic R.O.W) Commission in accordance with Section 20.04.070 Kenai Peninsula �_ s rna� — Borough Subdivision Regulations. — �- - Seeders 19 N 89'18'13' 5 1 0 ) 1008.89 Dote , t)anty nl 74 7 not ., BASIS OF BEARING PLAT 97 -27 S.R.D. -6�V LESSEE CERTIFICATE % J�G-.L 1 hereby certify that we era the lessee of Lot 2 as 'hewn Borough Omer hereon. and that we hArelby approve this subdivision. 4 • 1 A.- 6 „ %/V \ FOURTH OF ,LILY CREEK SUBDIVISION Wa M. Nai llam zh.lmer SURVEYOR CERTIFICATE SEWARD MARINE INDUSTRIAL CENTER Glacier M. No koti /KPFN Radio t hereby certify that: I ern properly registered and licensed ADDI770N NUMBER ONE P.O. sox 230004 practice lord surveying in not the State of Al this plat re Anchorage. Air. 99523 represents a survey mode by me or under my direct supervision the monuments shown hereon actudiy exist as described, and A 5f)ROM570N OF elf dimensions and other details are correct to the normal A PORTION OF BLOW 8 FOURTH OF .AHY CREEK SUM. standards of prattles of land surveyors M the State of Alaska. SEW N1N 1 77 H M 7 0W ' 1 INDUSTRIAL CENTER LOCATED iffT S 1/4 and THE SE 1/4 SECTION 78 NOTARYS ACKNOW(.EDGEMENT 12 i mRxsHrp T SDUlH RArrcE 7 EAST FOR W;(l;aw. r�. Holz_ inc. ,,,,,,.---• 1 .` °saae car OF SEWARD SUBSCRIBED AND SWORN TO BEFORE ME THIS 1 DATE F, H 4 DAY DE �nnr..0 V z _ 1 :1 3 I " Z �Q „ _..,, ( '' ' tr SEWARD RECORDING D7S7R/CT , 20 n t �-- tA+D:: NEC a5r r � �i � 0 t `�E I CK i �r f�. a /) /� n 2--42-'/O �.....fk,_ 1 �,�� n o I � it °:, CLINE AND ASSOCIATES t� n LAND SURVEYOR5 NOTARY�t"OR ALASKA "MY COMMISS 6GSRES - E ' 9159t .4' .. C. ,� 1�a m °'°t "s ne 416 4th (907) 224-7324 PD 80% 270J (907) 224-6088 AK 99664 �' 4,x-....., "•tern -e e 4,x-.....,-----__- r a No 7s64 f 4' (907) 224 -7324 FAX (907) 224 -5088 'Eaw � 90 ...tsxw. a DATE: 01-12-01 SCALE, 1' +. 60' 'nfnnd' amw " mow• DRAWN: 0910 DRAWING NO.: 98 -0800 K.P.B. FILE #: 99 -208 & 2009 -016 .I'. r t � IMacSrvain Associates LLCj Subject Property Data, Analysis, & Valuation: Parcel 10 . Location: Southeast corner of Sorrel Road and Delphin Property Street o . Identification Legal Description: Lot 1, Block 6, 4 of July Creek Subdivision, SMIC Current Use Vacant Subject Property Y Photograph �a 9 2 y :.e y y 44 s , : G n,. 1 .i A 1 1 K s' . e_ti- t1' Y 1 ` ��� {'pt ' i � t . r 4£ .. $ b . C . � mod. k y N R o • • i' Inspection Data Date Inspected: May 11, 2011 Inspected By: Steve MacSwain, MAI Sale History No known sales in past three years Site Description Site Size /Shape: 10,000 SF / square ` Access /Street Improvements: Sorrel Road (gravel) �t 1i 0. =' 11 -2199: Ten (10) City of Seward Parcels, Seward, Alaska 52 1 'MacSwain Associates LLCj Utilities: Public Water: None available Public Sewer: City of Seward* Electricity: Seward Public Utilities, power C lines east of subject Telephone: TelAlaska Topography: Level Easements and Restrictions: None noted Other Features: None Zoning: Industrial (I) Parking: On site required Assessor No: 145- 340 -29 Assessment Data 2010 Mill Rate: 8.12 2010 Assessment Value: Land Building Total $25,000 $0 $25,000 ($2.50 /SF) i * Public sewer in vicinity, however, the feasibility /cost to hook up unknown until engineering is completed. A 11 -2199: Ten (10) City of Seward Parcels, Seward, Alaska 53 ! MacSwain Associates LLCI Market. Analysis and From the market data discussed in Chapter 6, we have selected the Property Valuation following comparables as being the best data available. Table of Comparables Compared to Parcel 9 No Location Sale Date Sale Price Size (SF) Price /SF 8 SW of Seward Hwy. and 2005 — Varies 20,000 — $2.50 — Port Ave., Leirer Subd. 2010 80,000 $3.25 9 NWC of Sorrel Rd. and 7/10 $500,000 99,319 $5.03 Nash Rd., SMIC 11 E. Side of Nash Road, 3/04 $23,000 23,035 $1.00 SMIC Lot 1, Block 6, SMIC N/A N/A 10,000 N/A Comparative Land Comparable No. 8 is located just north of the Seward Small Boat Value Analysis Harbor in an industrial neighborhood known as Leirer Subdivision. This subdivision consists of 30± individual leased sites reflecting fee values in the $2.50 to $3.25 per square foot range. These comparables are rated superior due to location. Comparable No. 9 involves the lease of a fish processing plant parcel on the SMIC Harbor. Thus, water- frontage enhances its utility. A downward adjustment is necessary for location and harbor frontage. Therefore, this comparable is rated superior. Comparable No 11 is an older land sale in SMIC by the City of Seward to its lessee. We adjust these sales upward for inferior location and market conditions (2004 sale). In comparison, we rate this comparable is rated inferior. Based on the preceding discussion and a review of the other Land Value comparables, the market value is estimated to be $1.75 to $2.25 per Conclusion square foot range. 10,000 SF at $1.75 /SF = $12,500 10,000 SF at $2.25/SF = $22,500 Land Value $20,000 11-2199. Ten (10) City of Seward Parcels, Seward, Alaska 54 r3 ,,,, POR. SEC. 13, TO1S, RO1W & SEC. 18, TO1S, RO1E, S.M. 145 -340 pa s �s� OF U.S.S. NO. 1651 t e ± Cot j I vJ • f h . C --►lam ® t ��� p 13 Q f 2 03 ac '� 7.79 at ® rt 0,04 x. 2 1 s b� n ` 0.60 au 0.37 as �� JE IISQN AVF. U 2 1 m h y 4; 7R A3 7 , Csi 37,e ® rr""� 1023 ac. 7.8ttc Z. 2eC. 25 ea nm Y MUSTANG AVE. 1 ' . •� fA / / 1A 0.3f ea 0 e , . POCARSUTOOD .87x jG Q53 ar C 1227 ac 4.38 a¢ 7 / » . 2 ;- FOURTH OF JULY CREEK SEWAR.) MARINE INDUSTRIAL CENTER ( g�y 1-, 1 . `' `� "�. MORRISAVE. 2 sA r _® 5 t.96a a I a 2 sEWARD SNIPS DRYDOCK REPLAT U o K 3 m fa N LBB ee ® ® 0a 8.08 @C. 144 E 7 .34 ac. t5.43 ea i • t 0.03x. 0.08aa ; 3r°i p .77 `0 1.07.¢ BK o JANUARY 2.2007 189 For 2007 assessment roll N FOURTH OF JULY CREEK SUBOSEWARD MARINE INDUSTRIAL CENTERnSW0970027 D elete odd Revue FOURTH OF JULY CREEK SUB SEWARD MARINEnINDUSTR CENTER COMMUNICATIONS NORTH ADDNOSW0000006 This M , is mewed I To FOU OF JULY CREEK SUBi3SEWARD MARINE INDUSTRIAL CENTER ADDN NUMBER ONEUSW2001002 f0f Peritonea Sorel* Assessing Dept. W E - FOURTH OF JULY CREEK SUBDSEWARD MARINE INDUSTRIAL CENTER SEWARD S DRYDOCK REPLAT SW2002022 uen only and is not 11 1���{{ 37,38,48 50 FOURTH OF JULY CREEK SUBfSEWARD MARINE INDUSTRIAL CENTER SEWARD POLAR SEAFOOD REPLAT SW2008023 Wended for conveyance nor Is It a survey. S Assessor's Map No*s. Assessors block Numbers Shown N Elpsns Kenai Peninsula Borough Assessors Parch Numbers Sham in Clreks LEASE AGREEMENT between CITY OF SEWARD, ALASKA and Global Tower Assets, LLC Effective Date: ( TABLE OF CONTENTS ARTICLE 1- LEASED LAND 4 1. I DESCRIPTION OF LEASED LAND 4 1.2 COVENANT OF QUIET ENJOYMENT' WARRANTY OF TITLE 4 1.3 RESERVED 5 1.4 PROPERTY ACCEPTED "AS -IS." 5 1.5 PERMITS 5 1.6 PLATTING 5 ARTICLE 2 - LEASE TERM 6 2.1 LEASE TERM. 6 2.2 OPTIONS TO EXTEND 6 ARTICLE 3 - RENTAL RATE 6 3.2 RENTAL ADJUSTMENTS 6 3.3 PROCEDURE FOR RENTAL ADJUSTMENT 7 3.4 EFFECT OF LATE APPRAISAL BY CITY 7 3.5 APPRAISAL BYLESSEE 7 3.6 EFFECTIVE DATE OF ADJUSTED RENTAL RATE 8 3.7 INTERIM RENTAL ADJUSTMENTS 8 3.8 LATE PAYMENT CHARGE 9 ARTICLE 4 - USE OF LEASED LAND 9 4.1 USE OF LEASED LAND 9 4.2 OBLIGATIONS OF LESSEE 9 4.3 NO PREFERENTIAL RIGHTS TO USE PUBLIC FACILITIES 9 4.4 ADEQUACY OP PUBLIC FACILITIES 10 4.5 TARIFFS AND OTHER SERVICE FEES 10 4.6 TIME FOR PAYMENT OF UTILITIES AND TAXES 10 4.7 OTHER USES 10 ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 10 5.1 UTILITIES 10 5.2 THIRD-PA RTYIM PRO VEMENTS 11 5.3 EASEMENTS 11 ARTICLE 6 - CONSTRUCTION BY LESSEE 12 6.1 IMPROVEMENTS ON LEASED LAND 12 6.2 CITY REVIEW OF CONSTRUCTION 13 ARTICLE 7 - RETURN OF LEASED LAND /SITE CONDITIONS 13 7.1 RETURN OF LEASED LAND IN ORIGINAL CONDITION 13 7.2 RETURN OF LEASED LAND IN DIFFERENT CONDITION 14 ARTICLE 8 - FORCE MAJEURE 14 ARTICLE 9 - LESSEE'S ACTS OF DEFAULT 14 ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE 15 -I- \ Cc' ARTICLE 11- TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 17 11. REAL PROPERTY IMPROVEMENTS 17 11.2 PERSONAL PROPERTY 17 ARTICLE 12 - ASSIGNMENT OR SUBLEASE 17 12.1 ASSIGNMENT OF LEASE OR SUBLEASING 18 12.2 ASSIGNMENT OF LEASE FOR SECURITY 18 12.3 ASSIGNMENT TO AFFILIATE 19 ARTICLE 13 - LESSEE'S DUTY TO DEFEND /INDEMNIFY 19 ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY 19 ARTICLE 15 - INSURANCE Y9 15.1 MINIMUM INSURANCE REQUIREMENTS 19 15.2 SUBROGATION RIGHTS WAIVED 20 ARTICLE 16 - CONDEMNATION 21 ARTICLE 17 - ARBITRATION 21 17.1 ARBITRATION 21 ARTICLE 18 - MAINTENANCE AND REPAIRS 23 18.1 NORMAL MAINTENANCE 23 I8.2 SAFETY ISSUES 23 18.3 COST of REPAIRS 23 ARTICLE 19 - ENVIRONMENTAL CONCERNS 24 19.1 HAZARDOUS MATERIALS 24 19.2 PERMITS AND REPORTING 27 ARTICLE 20 - ESTOPPEL CERTIFICATES 27 ARTICLE 21- CONDITIONS AND COVENANTS 27 ARTICLE 22 - NO WAIVER OF BREACH 27 ARTICLE 23 - TIME OF THE ESSENCE 28 ARTICLE 24 - COMPUTATION OF TIME 28 ARTICLE 25 - SUCCESSORS IN INTEREST 28 ARTICLE 26 - ENTIRE AGREEMENT 28 ARTICLE 27 - GOVERNING LAW 28 ARTICLE 28 - PARTIAL INVALIDITY 28 ARTICLE 29 - RELATIONSHIP OF PARTIES 28 ARTICLE 30 - INTERPRETATION 29 ARTICLE 31- CAPTIONS 29 ARTICLE 32 - AMENDMENT 29 - 2- ARTICLE 33 - NOTICES 29 EXHIBIT A - LEASED LAND KENAI PENINSULA BOROUGH PLAT NUMBER 2001 -2 .s. LEASE AGREEMENT THIS LEASE AGREEMENT (the "LEASE ") is made by and between the CITY OF SEWARD (the "CITY "), a municipal corporation located in the Kenai Peninsula Borough, State of Alaska, whose mailing address is P.O. Box 167, Seward, Alaska 99664, and Global Tower Assets, LLC, (the "LESSEE "), whose mailing address is 750 Park of Commerce Boulevard, Suite 300, Boca Raton, Florida, 33487 -3612. WHEREAS, LESSEE has indicated its desire to lease an area of land approximately 10,000 square feet in size, covering Lot 1, Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough Plat number 2001 -2, Seward Recording District, Third Judicial District, State of Alaska, for the purpose of operating a cellular communications site, hereinafter called the "Leased Land "; and WHEREAS, the City Council of CITY has determined that a lease of the Leased Land (as defined below) to LESSEE for the purposes described herein would be in the public interest; and WHEREAS, it is the intent of this LEASE to transfer from CITY to LESSEE the entire burden of compliance with present or future environmental regulations or controls with respect to LESSEE's operations on the Leased Land during the lease term. NOW THEREFORE, for and in consideration of the mutual promises and covenants hereinafter contained, the parties hereto agree as follows: ARTICLE 1- LEASED LAND 1.1 Description of Leased Land. The Leased Land is located in the City of Seward, Alaska. The Leased Land is described as follows: Lot 1, Block 6, Fourth of July Creek Subdivision, Seward Marine Industrial Center, Kenai Peninsula Borough Plat number 2001 -2, Seward Recording District, Third Judicial District, State of Alaska, containing 10,000 square feet, more or less (the "Leased Land "). The Leased Land is also depicted on the attached Exhibit A, which is incorporated herein by reference. 1.2 Covenant of Quiet Enjoyment; Warranty of Title. Subject to the encumbrances as of the date hereof, any reasonable restrictions imposed on the Leased Land as part of recording 1`A of a plat by CITY, and the provisions of this LEASE, CITY hereby covenants and warrants that: a) LESSEE shall have the quiet enjoyment and possession of the Leased Land for the full term of this LEASE; b) CITY is unaware of any prior conflicting use of the Leased Land that would adversely affect LESSEE's intended use of the subject parcel. 1.3 Reserved. 1.4 Property Accepted "As-is." LESSEE acknowledges that it has inspected the Leased Land and accepts the same "as -is" and without reliance on any expressed or implied representations or warranties of CITY, or agents of CITY, as to the actual physical condition or characteristics thereof and the legal description or depiction of the Leased Land in Section 1.1 or Exhibit A hereto. 1.5 Permits. LESSEE, at its sole cost, shall obtain all permits necessary to the construction and operation of its facilities on the Leased Land. CITY may from time to time, upon request of LESSEE, execute such documents, petitions, applications and authorizations as may be necessary, as the underlying fee owner, to file with an agency or public body responsible therefor an application for conditional use permits, zoning and re- zoning, tentative and final tract approval, or precise plan approval that may be required for the lawful construction and operation of the facilities of LESSEE permitted on the Leased Land by the terms of this LEASE. However, nothing in this Section shall be construed as requiring CITY to support or approve any such application or permit requests. If the agency or public body responsible to approve or grant such application or permit request is a City of Seward agency, department, or board, LESSEE shall follow all City of Seward procedures, the same as any other applicant making similar requests of the City of Seward, according to the Charter, ordinances, resolutions, or any regulation, rules or procedures of the City of Seward. Nothing in this Section imposes any duty or responsibility on CITY to assist LESSEE in obtaining any other permits or approvals, including without limitation those required by the U.S. Army Corps of Engineers (e.g., wetland fill permits), the Environmental Protection Agency (e.g., Clean Air Act permits), the Alaska Department of Public Facilities and Transportation (e.g., right -of -way permits), the Alaska Department of Fish and Game, and the Alaska Department of Environmental Conservation. 1.6 Platting. In the event CITY elects to replat, LESSEE shall accept reasonable restrictions, easements, or plat notes as may be required by CITY or other governmental authorities as -5- a condition to filing the plat of the Leased Land or the plat of CITY -owned real property adjacent to the Leased Land. ARTICLE 2 - LEASE TERM 2.1 Lease Term. The term of this LEASE (the "Lease Term ") shall be in accordance with CITY's authorization Resolution No. 2011 -_ (the "Resolution "). The Lease Term shall commence on the date this LEASE is signed by CITY and that date shall be the effective date of this LEASE (the "Effective Date "). The Lease Term shall run for 5 years from the Effective Date, ending at midnight on July 31, 2016. Except for extensions as provided in Section 2.2 below, this LEASE is not subject to renewal. 2.2 Options to Extend. LESSEE shall have the right to extend the term of this LEASE for four (4) additional five (5) year periods (cumulative extensions not to exceed ten (20) years), provided that: a) LESSEE exercises any applicable option to extend at least one hundred and eighty (180) days prior to the expiration of the then current lease term; b) LESSEE is not in default under any term or provision of this LEASE; and c) LESSEE shall exercise its options to extend by sending written notice thereof in accordance with the provisions of Article 33 of this LEASE. ARTICLE 3 - RENTAL RATE 3.1 Initial Rental Rate. Commencing on the Effective Date of this LEASE and subject to Section 3.7 of this Lease, through June 30, 2012, the annual rental rate for the Leased Land shall be set at One Thousand Six Hundred Dollars ($ 1,600.00). Rent shall be payable quarterly in advance upon the Effective Date of this Lease (prorated for the balance of the current quarter) and thereafter on or before the 20th day of the month beginning each calendar quarter: January 20, April 20, July 20 and October 20. The amount of each quarterly payment shall be one - quarter of the annual rental rate as initially established or later adjusted under this Article 3. 3.2 Rental Adjustments. The annual rental payment shall be adjusted on July 1, 2015, and on the same date every five years thereafter (each a "Rental Adjustment Date "). The adjusted annual rental payment to be paid under the terms of this Lease shall be the appraised fair market rental value (the "Fair Market Rental Value ") of the Leased Land at the highest and best use of the Leased Land. The highest and best use of the Leased Land •r,. 'A, shall be determined without regard to LESSEE's intended or actual use of the Leased Land unless that use is coincidentally the highest and best use of the Leased Land. CITY shall complete such appraisal and deliver a copy of the appraisal report to LESSEE not less than ninety (90) days before each Rental Adjustment Date. 3.3 Procedure for Rental Adjustment. To adjust the rent as of any successive Rental Adjustment Date, CITY shall, at its own expense, retain an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute), who shall determine the "Fair Market Rental Value" of the Leased Land in accordance with this Article 3, exclusive of improvements placed thereon by LESSEE but inclusive of all improvements made by CITY (including those made before or subsequent to this LEASE). The appraiser's report shall be delivered to LESSEE not less than ninety (90) days before the Rental Adjustment Date. The appraiser's determination of Fair Market Rental Value of the Leased Land shall constitute a final binding determination of the Fair Market Rental Value and the adjusted annual rental rate until the next Rental Adjustment Date, unless LESSEE objects to CITY's appraiser's determination of the Fair Market Rental Value. In that case, LESSEE shall give written notice to CITY of its objection within thirty (30) days of receipt of the appraiser's report, and LESSEE shall then engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE's expense to make an appraisal of the Fair Market Rental Value in accordance with this Article 3. If LESSEE'S appraisal determines a Fair Market Rental Value that varies from that determined by CITY's appraisal by no more than twenty percent (20 %), then the adjusted rental rate shall be the average of the rental rates determined by the two appraisals. If LESSEE'S appraisal determines a Fair Market Rental Value that varies from CITY's appraisal by more than twenty percent (20 %), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 19 of this LEASE. 3.4 Effect of Late Appraisal by CITY. If, for any reason, CITY does not complete the appraisal or deliver a copy of the appraisal report to LESSEE ninety (90) days before the Rental Adjustment Date, CITY may proceed to complete the appraisal or deliver a copy of the appraisal report to LESSEE at any time thereafter. However, any such adjusted annual rental rate shall not be effective until the quarterly payment due date immediately following the date CITY delivers the appraisal report to LESSEE. 3.5 Appraisal by LESSEE. If for any particular Rental Adjustment Date, CITY fails to obtain an appraisal of the Fair Market Rental Value or fails to deliver the appraisal report to the LESSEE by the Rental Adjustment Date, LESSEE may engage an independent State of -7. Alaska certified MAI appraiser (Member, Appraisal Institute) at LESSEE's expense to make an appraisal under the terms of this Article 3 and submit a copy to CITY before the next quarterly rental payment due date. However, LESSEE must notify CITY in writing within thirty (30) days following the Rental Adjustment Date of LESSEE's election to obtain an appraisal. If CITY objects to LESSEE'S appraiser's determination of the Fair Market Rental Value, CITY shall give written notice to LESSEE of its objection within thirty (30) days of receipt of the appraiser's report, and CITY shall then engage an independent State of Alaska certified MAI appraiser (Member, Appraisal Institute) at CITY's expense to make an appraisal of the Fair Market Rental Value as of the Rental Adjustment Date and in accordance with this Article 3. If the CITY's appraisal determines a Fair Market Rental Value that varies from that determined by LESSEE'S appraisal by no more than twenty percent (20 %), then the adjusted rental rate shall be the average of the rental rates determined by the two appraisals. If the CITY's appraisal determines a Fair Market Rental Value that varies from LESSEE'S appraisal by more than twenty percent (20 %), then, unless CITY and LESSEE agree on a rate themselves, the adjusted annual rental rate of the Leased Land shall be determined in accordance with the arbitration provisions contained in Article 17 of this LEASE. 3.6 Effective Date of Adjusted Rental Rate. The adjusted annual rental rate established by this Article 3 shall apply as of the Rental Adjustment Date if CITY provided a copy of the appraisal report to LESSEE no later than ninety (90) days before the Rental Adjustment Date. If the adjusted annual rental rate is based on CITY's late appraisal or late delivery of the appraisal report to LESSEE, the adjusted rental rate shall be effective beginning with the quarterly rental payment due date immediately following the date the CITY delivers the appraisal report to LESSEE. Notwithstanding the above, the exercise by either CITY or LESSEE of the objection procedure relating to rental adjustment described in this Article 3 shall not postpone LESSEE's obligation to pay rent at the rate established by CITY. LESSEE shall pay the amount of rent as established or adjusted by CITY until the question of objection to the rental rate is finally resolved. At such time the objection to the rental rate is resolved, an appropriate credit or adjustment shall be made retroactive to the date the new rental rate was established by CITY or in cases where CITY failed to obtain an appraisal or deliver the appraisal report to the LESSEE, to the Rental Adjustment Date. 3.7 Interim Rental Adjustments. For each year in the period between each Rental Adjustment Date, excepting the Rental Adjustment Dates, the annual rental payment shall be increased beginning July 1, 2012, and on July 1 of every year thereafter (each on "Interim Rental Adjustment Date ") in an amount that reflects the increase, if any, in the cost of living for the previous year as stated in the Consumer Price Index, All Urban Consumers, Anchorage, Alaska Area, All Items 1967 =100 ( "CPI "), as published by the United States Department of Labor, Bureau of Labor Statistics for the most recent period published -8 - �3 immediately prior to the Interim Rental Adjustment Date. In no event shall the rent be less than the previous year. If the CPI is revised or ceases to be published, the CITY shall instead use such revised or other index as most nearly approximates the CPI for the relevant period, and make whatever adjustment in its application as may be necessary, in the CITY's sole discretion, to accomplished as nearly the same result as if the CPI had not been revised or ceased to be published. 3.8 Late Payment Charge. Rental payments not received by the due date shall bear interest until paid at a rate of 10.5% per annum, or the maximum rate permitted under Alaska law, whichever is less, plus a flat monthly late fee of $2.50, or such amount as may be established from time to time by CITY ordinance or resolution and relating to late fees for CITY leases generally. ARTICLE 4 - USE OF LEASED LAND 4.1 Use of Leased Land. CITY has limited land available for lease. Use of the Leased Land by LESSEE has been determined by the City Council of CITY to be in the public interest. 4.2 Obligations of LESSEE. LESSEE may use the Leased Land only in accordance with applicable CITY zoning code provisions and provided the following conditions are met: a) The Leased Land is to be completely cleaned and restored to its original condition, that is, the condition existing prior to this LEASE or in better condition upon termination of this LEASE. b) LESSEE agrees to prohibit the use, keeping, storage, or disposal of Hazardous Materials on the Leased Land except as permitted in Article 19 of this LEASE. c) LESSEE shall not use the Leased Land in any manner or construct any facilities thereon which would inhibit the use of adjacent or other lands. d) LESSEE shall continue to operate a cellular communications site on the Leased Land. Any changes to this site require CITY approval, through the City Manager, prior to additional construction. LESSEE's failure to obtain CITY approval of any changes to the site development plan or LESSEE's failure to install any improvements according to the site development plan shall be a LESSEE Act of Default under this LEASE. 4.3 No Preferential Rights to Use Public Facilities. This LEASE does not grant to LESSEE any exclusive rights to use any public port facilities constructed or operated by CITY. -9- ALA LESSEE will be subject to any tariffs, procedures, rules and regulations of CITY concerning the use of such facilities as they may now exist or from time to time be amended, and LESSEE shall not be entitled to any exclusive use. 4.4 Adequacy of Public Facilities. CITY makes no representations or warranties as to the fitness of any particular part or the whole of CITY'S public facilities for the uses intended by LESSEE, and LESSEE has inspected those facilities and has satisfied itself that the facilities are sufficient for the intended uses by LESSEE. CITY makes no representations or warranties of any nature with respect to the commercial practicability or accuracy of any information provided by CITY. 4.5 Tariffs and Other Service Fees. CITY shall have the right to make amendments to its tariffs, regulations and scheduled fees from time to time even if those adjustments shall cost LESSEE more for its operations or use of public facilities, and CITY is free to do so provided only that it does not impose any greater burden or higher rate upon LESSEE than upon any other similar user of the public facilities. 4.6 Time for Payment of Utilities and Taxes. LESSEE will pay for utilities and taxes related to operations on the Leased Land and LESSEE's interest in this LEASE and improvements thereon, if any, before such obligations become delinquent; provided, that LESSEE may, in good faith and before such delinquency, contest any such charge or assessment. 4.7 Other Uses. This LEASE shall not preclude the CITY from actively seeking other and additional tenants for space including those who would be in competition with LESSEE or who might be interested in leasing the Leased Land should this LEASE be terminated for any reason. ARTICLE 5 - UTILITIES AND RIGHTS OF ACCESS 5.1 Utilities. LESSEE, at LESSEE's sole cost and expense, shall provide for the extension of public utilities to the Leased Land sufficient for LESSEE's intended operations. In so doing, LESSEE shall comply with all CITY regulations and requirements, and the tariffs of the affected utilities, with respect to the construction of those utilities. CITY agrees to cooperate and assist the LESSEE, through consultation and review, in LESSEE's planning and engineering of those improvements. All utilities will be located and sized in accordance to CITY's Master Plan for the area leased. All such construction shall be in compliance with all applicable building, mechanical and fire codes. Utilities constructed by the LESSEE within the public rights -of -way or within public utility easements will normally be accepted and maintained by CITY or utility companies may be used to serve other customers of LESSEE's without payment of fees or reimbursement of construction to cost to the LESSEE. However, this does not preclude several lessees from agreeing to share the cost of constructing a utility to serve their facilities. CITY or other utility company may determine that it would be to their benefit to oversize the utility or install special fittings or equipment in order to serve other existing or future users. The additional direct costs of such oversizing shall be borne by CITY or other utility company. Such costs shall be limited to the supplier's cost of the additional fittings, equipment, direct Iabor, and equipment costs to complete the installation. The costs of oversizing pipe or electrical conduit shall be limited to the difference between the supplier's price to provide the size required to serve its facility and the price of the oversized material required by CITY or utility company. LESSEE shall not be entitled to any refund, rebate, or payments from CITY for any rent, investment, or costs incurred by LESSEE with respect to any required permits for construction or operation of LESSEE's facilities on the Leased Land, it being the intent of the parties that the risk of obtaining required permits be solely a risk undertaken by LESSEE. 5.2 Third -Party Improvements. At the request of LESSEE, CITY shall, from time to time, execute and deliver, or join in execution and delivery of, such documents as are appropriate, necessary, or required to impose upon the Leased Land in accordance with the terms of this LEASE, covenants, conditions and restrictions providing for the granting of uses of the Leased Land, or any part thereof, the establishment of party walls, the establishment of mutual and reciprocal parking rights or rights of ingress or egress, or other like matters (herein called "third -party improvements "), all of which are for the purpose of the orderly development of the Leased Land as a commercial unit subject, however, to the conditions that: a) All such matters shall be limited to the Lease Term and shall terminate upon termination of this LEASE for whatever reason. b) Any such matters of a permanent nature extending beyond the Lease Term shall not be granted without the prior written approval of CITY. In any of the foregoing instances referred to in this Section, CITY shall be without expense therefor, and the cost and expense thereof shall be borne solely by LESSEE. c) At the expiration of the Lease Term (including any extended period) third -party improvements on the Leased Land other than portable equipment shall become the property of CITY without the payment of any compensation to LESSEE. 5.3 Easements. In order to provide for the orderly development of the Leased Land and _ u_ ab adjacent lands, it may be necessary, desirable or required that street, railroad, water, sewer, drainage, gas, power line and other easements and dedications and similar rights be granted or dedicated over or within portions of the Leased Land. As additional consideration for this LEASE, CITY and LESSEE each shall, at the request of the other, join with each other in executing and delivering such documents from time to time and throughout the Lease Term as may be appropriate, necessary, or required by the several governmental agencies (including the City of Seward), public utilities and other users or tenants of CITY land for the purpose of granting such easements and dedications; provided, however, that such easements and dedications and similar rights do not unreasonably interfere with LESSEE's operations. The costs of locating or relocating any public easements or restrictions of record including any relocation of public road, railroad, utility, or other easements shall be at the sole cost and expense of the party requesting the relocation. CITY shall not refuse reasonable requests for such relocations provided those relocations do not interfere with or inhibit the overall development of CITY property or other public property. Any easements or rights of access granted to LESSEE by CITY need not be exclusive to LESSEE. ARTICLE 6 - CONSTRUCTION BY LESSEE 6.1 Improvements on Leased Land. LESSEE shall have the right to erect, maintain, alter, remodel, reconstruct, rebuild, build and /or replace buildings and other improvements on the Leased Land, subject to the following conditions: a) The cost of any construction, reconstruction, demolition, or of any changes, alterations or improvements, shall be borne and paid for by LESSEE. b) The Leased Land shall at all times be kept free of mechanic's and materialmen's liens. c) LESSEE shall provide CITY with a copy of all building plans and specifications and a site development plan or plans (based on a recent survey) for the Leased Land prior to commencement of construction. d) LESSEE is solely responsible for resurveying and locating improvements on the Leased Land in such manner not to violate building setback requirements or encroach into rights -of -way or easements. On completion of any improvements, LESSEE shall provide CITY a copy of an as -built survey depicting the improvements as completed on the Leased Land. e) Any general contractor employed by LESSEE or its sublessees shall be - 12 - appropriately bonded by use of performance and Iabor and material payment bonds in the customary form when cost of the work is equal to or exceeds FIFTY THOUSAND DOLLARS ($50,000). Copies of all such bonds shall be furnished to CITY prior to commencement of construction. If the cost of the work is less than FIFTY THOUSAND DOLLARS ($50,000), LESSEE shall provide CITY, if no performance and labor and material bonds are provided by LESSEE, any necessary assurances or guarantees that the contemplated work will be performed by the general contractor or by LESSEE. I) CITY may, as contemplated by Alaska Statutes, give notice of non - responsibility for any improvements constructed or effected by LESSEE on the Leased Land. g) LESSEE shall comply with all federal, state and local statutes and regulations with respect to such construction, including but not limited to all applicable building, mechanical, and fire codes. 6.2 City Review of Construction. CITY shall have the right to review initial plans, including those supplied to CITY under Section 6.1 hereof, and any future changes or additions to LESSEE's facilities on the Leased Land, by reviewing the design thereof prior to the commencement of construction. CITY shall have the right to comment upon that design and to require LESSEE to make reasonable changes so as to avoid interference with public operations, but the exercise of these rights shall not imply any obligation to do so, nor any obligation to do so nor any obligation to do so in a particular way. LESSEE shall construct the facility in accordance with final design specifications approved by CITY. CITY's representatives may monitor the work and shall have access to the site at all reasonable times. LESSEE shall be solely responsible for completing all improvements according to LESSEE's plans and specifications and shall bear all risk, responsibility, and liability for properly surveying the Leased Land before construction and to place all improvements on the Leased Land without encroaching upon any land, easements, rights - of -way, or setback requirements. LESSEE shall obtain the usual and customary performance guarantees from its contractors, and CITY shall be named as an additional insured. ARTICLE 7 - RETURN OF LEASED LAND /SITE CONDITIONS 7.1 Return of Leased Land in Original Condition. Subject to the provisions of Article 11.1 herein, upon termination of this LEASE for any reason, LESSEE shall return the Leased Land to CITY in the same condition as at the commencement this LEASE, subject to normal, non - abusive use. The Leased Land shall be free of all Hazardous Materials and contamination arising out of or resulting from or occurring during LESSEE's operations - 13- or use of the Leased Land during this LEASE. 7.2 Return of'Leased Land in Different Condition. Notwithstanding the provisions of Section 7.1 above, upon termination of this LEASE for any reason LESSEE may return the Leased Land in a re- contoured or graded clean, safe, and stable condition different from its original condition provided CITY grants written approval of LESSEE's plans for development of the Leased Land contours, including its plans for material extraction and final grade. ARTICLE 8 - FORCE MAJEURE In the event either LESSEE or CITY is delayed from performance of any of its obligations under this LEASE due to acts of nature, acts of the enemies of the United States of America, sabotage, terrorism, blockade, insurrection, riot, epidemic, fire, flood, explosion, earthquake /tsunami, civil disturbance, or war, the time period wherein such performance is to occur shall be extended by that amount of time necessary to compensate for the delay. ARTICLE 9 - LESSEE'S ACTS OF DEFAULT Each of the following shall be a "LESSEE Act of Default" under this LEASE and the terms "acts of default" and "default" shall mean, whenever they are used in this LEASE, any one or more of the following events: 9.1 Failure by LESSEE to pay promptly when due, and in no event later than twenty (20) days from the due date thereof, the rent required to be paid under this LEASE. 9.2 Failure by LESSEE to observe, fulfill or perform any covenants, conditions or agreements on its part to be observed or performed under this LEASE for a period of thirty (30) days after written notice specifying such failure, requesting that it be remedied, and stating that it is a notice of default, has been given to LESSEE by CITY; provided, however, that if said default is such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the default is corrected. 9.3 The making by LESSEE of an assignment for the benefit of creditors, the filing of a petition in bankruptcy by LESSEE, the adjudication of LESSEE as insolvent or bankrupt, the petition or application by LESSEE to any tribunal for any receiver or any trustee for itself or for any substantial part of its property; or the commencement of any proceeding relating to LESSEE under any bankruptcy, insolvency, reorganization, arrangement or readjustment of debt law or statute or similar law or statute of any jurisdiction, whether .1.1. a 1 now or hereafter in effect which shall remain undismissed for a period of six (6) months from the date of commencement thereof. For purposes of this Section 9.3, the parties understand and intend that this LEASE shall be deemed to fit within the "commercial lease" safe harbor provisions of the Federal bankruptcy laws, including but not limited to 11 U.S.C. ' 365(d)(3) and (4). 9.4 Violation by LESSEE of any laws or regulations of the United States, or of the State of Alaska, or any conditions of any permits issued by agencies of the City of Seward, the Kenai Peninsula Borough, the State of Alaska or of the United States Government applicable to LESSEE's use of the Leased Land, pursuant to the regulations of such agencies, for a period of sixty (60) days after written notice specifying such violation has been given by the agency charged with the enforcement of such laws, regulations or permits to LESSEE; provided, however, if such violation be such that it cannot be corrected within the applicable period, it shall not constitute an act of default if corrective action is instituted by LESSEE within the applicable period and diligently pursued until the violation is corrected. Furthermore, if LESSEE shall in good faith contest such alleged violation through appropriate judicial or administrative channels, the time period specified herein shall not commence until such proceedings are finally determined, provided such proceedings are diligently pursued; provided, however, that any such extension of time shall not be effective if the effect of the interim administrative or judicial action is to cause a stoppage, interruption or threat to the activities of any person or entity other than those of LESSEE. 9.5 Failure of LESSEE to maintain its operations within the Leased Land or to keep the public rights -of -way clear. ARTICLE 10 - REMEDIES FOR DEFAULT BY LESSEE Whenever an act of default by LESSEE shall have occurred, and any applicable period for giving notice and any opportunity to cure has expired, CITY shall have the following rights and remedies all in addition to any rights and remedies that may be given to CITY by statute, ordinance, common law or otherwise: 10.I CITY may distrain for rent due any of LESSEE's personal property which comes into CITY's possession. This remedy shall include the right of CITY to dispose of personal property distrained in any commercially reasonable manner. It shall be conclusively presumed that compliance with the procedures set forth in the Alaska Uniform Commercial Code (AS 45.29.601 -.628) with respect to sale of property shall be a commercially reasonable disposal. -15- 30 10.2 CITY may re -enter the Leased Land and take possession thereof and, except for any personal property of LESSEE which CITY has waived its right to distrain under Section 10.1 above, remove all personal property of LESSEE from the Leased Land. Such personal property may be stored in place or may be removed and stored in a public warehouse or elsewhere at the cost of LESSEE all without service of notice or resort to legal process, all of which LESSEE expressly waives. 10.3 In addition to the above, CITY may: a) Declare this LEASE terminated; b) Collect any and all rents due or to become due from subtenants or other occupants of the Leased Land; c) Recover from LESSEE, whether this LEASE be terminated or not, reasonable attorney's fees and all other expenses incurred by CITY by reason of the breach or default by LESSEE; d) Recover from LESSEE an amount to be due immediately on breach equal to the unpaid rent for the entire remaining term of this LEASE provided that if the CITY relets the Leased Land for the unexpired term of this LEASE, the CITY will refund such excess amounts, if any, after deducting all of the CITY's expenses in or in connection with reletting (including without limitation all repossession costs, brokerage commissions, legal expenses, administrative expenses, costs of advertising, and preparations for reletting) as such excess amounts are received by the CITY, but in no event shall the refund exceed the amount recovered from LESSEE; e) Recover all damages incurred by CITY by reason of LESSEE's default or breach including, but not limited to, the cost of recovering possession of the Leased Land, expenses of reletting including costs of necessary renovation and alteration of the premises, reasonable attorney's fees and any real estate commissions actually paid. f) Remove or require the removal of any improvements constructed without CITY approval or constructed contrary to site development plans approved by CITY and recover all costs and expenses incurred by CITY to remove violating improvements. - fig. 3' 10.4 If LESSEE does not immediately surrender possession of the Leased Land after termination by CITY and upon demand by CITY, CITY may forthwith enter into and upon and repossess the Leased Land and expel LESSEE without being deemed guilty in any manner of trespass and without prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenant. 10.5 No expiration or termination of this LEASE shall expire or terminate any liability or obligation to perform of LESSEE's which arose prior to the termination or expiration except insofar as otherwise agreed to in this LEASE. 10.6 Each right and remedy of CITY provided for in this LEASE shall be cumulative and shall be in addition to every other right or remedy provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by CITY of any one or more of the rights and remedies provided for in this LEASE or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by CITY of any or all other rights or remedies provided for in this LEASE or now or thereafter existing at law, or in equity or by statute or otherwise. 10.7 No delay or omission to exercise any right or power accruing following an act of default shall impair any such right or power or shall. be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. ARTICLE 11 - TITLE TO IMPROVEMENTS INSTALLED BY LESSEE 11.1 Real Property Improvements. At any time during the term of this Lease Agreement, LESSEE or its customers shall have the right, to remove their equipment, structures, fixtures, signs, and personal property from the Leased Land. Upon the expiration or earlier termination of this LEASE, LESSEE shall remove the above ground improvements from the Leased Land and all footings, foundations and other below ground improvements to a level five (5) feet below grade surface level. 11.2 Personal Property. Any other provisions of this LEASE to the contrary notwithstanding, LESSEE, upon termination of this LEASE for any reason, may, but need not, promptly remove, in no event later than ninety (90) days from the termination of the LEASE, trade fixtures and equipment from the Leased Land provided that LESSEE shall repair any damages to the Leased Land caused by such removal. ARTICLE 12 - ASSIGNMENT OR SUBLEASE - 17 3a 12.1 Assignment of Lease or Subleasing. The parties recognize that this LEASE has been determined to be in the public interest by the City Council of CITY for the reasons set forth in the approving Resolution. The rights and duties created by the LEASE are personal to LESSEE and CITY has granted the LEASE in reliance upon the individual character and financial capability of LESSEE. Therefore, LESSEE shall not assign or sublease this LEASE without CITY's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Lessor hereby consents to Lessee subleasing space to New Cingular Wireless PCS, LLC d /b /a AT&T and thereafter Lessee may sublet to additional wireless communications carriers thereafter after receiving written authorization from CITY as set forth above. 12.2 Assignment of Lease for Security. Notwithstanding Section 12.1 above, LESSEE may assign, encumber or mortgage its interest in this LEASE or improvements on the Leased Land, by deed of trust or other security instrument, to an institutional lender ( "Lender ") for development of or operations on the Leased Land, provided that Lender shall be subject to all obligations of LESSEE under the terms of this LEASE upon foreclosure. CITY shall furnish Lender, at the address provided to CITY by Lender in writing, with notice of any default or breach of LESSEE under this LEASE. Lender shall have the right (without being required to do so and without thereby assuming the obligations of LESSEE under this LEASE) to make good such default or breach within thirty (30) days after written notice specifying such breach. Notwithstanding the provisions of Article 10 above, no "LESSEE Act of Default" shall exist until expiration of thirty (30) days after such notice is furnished to Lender; provided, a) If Lender, with respect to any default or breach other than a failure to make any required payment of rent or other money, shall undertake within thirty (30) days after notice to cure the default or breach and shall diligently and in good faith proceed to do so, CITY may not terminate this LEASE or relet the Leased Land unless Lender fails to cure the default or breach within a reasonable period of time thereafter; and b) If the default for which notice is given is a breach of Section 9.3, CITY shall not exercise any of the remedies afforded to it under Article 10 above so long as LESSEE or Lender remains in possession of the Leased Land and satisfies LESSEE's obligations under the terms of this LEASE. Upon foreclosure or other assertion of its security interest, Lender may further assign, transfer, or dispose of its interests, provided that any subsequent assignee, purchaser or transferee shall remain bound by each and every term of this LEASE. -18- 33 12.3 Assignment to Affiliate. Notwithstanding Section 12.1 above, LESSEE may assign this LEASE to an affiliate of LESSEE as that term is defined by AS 10.06.990(2) or Alaska limited liability company in which LESSEE maintains a substantial membership interest; provided, however, that LESSEE'S full faith and credit shall remain obligated under this LEASE as though the assignment had not taken place. ARTICLE 13 - LESSEE'S DUTY TO DEFEND /INDEMNIFY LESSEE shall defend, indemnify and hold harmless CITY, its officials, employees, agents, and contractors from any and all liability or claims for damages, including personal injuries, environmental damage, death and property damage arising out of or resulting from LESSEE's use of the Leased Land or the use of the Leased Land by LESSEE's sublessees, assignees, agents, contractors or the public, except for damages arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. If any action or proceeding is brought against LESSEE by reason of any such occurrence, LESSEE shall notify CITY promptly in writing of such action or proceeding. ARTICLE 14 - CITY'S DUTY TO DEFEND/INDEMNIFY CITY shall defend, indemnify and hold LESSEE harmless from any and all liability or claims for damages, including personal injuries, death and property damage arising from the sole negligence or willful acts or omissions of CITY, its officials, employees, agents, or contractors. ARTICLE 15 - INSURANCE 15.1 Minimum Insurance Requirements. Prior to commencement of the Lease Term or LESSEE'S occupancy of the Leased Land, LESSEE shall procure and maintain, at LESSEE's sole cost and expense, comprehensive commercial general Liability insurance with limits of liability of not less than TWO MILLION DOLLARS ($2,000,000) for all injuries and /or deaths resulting to any one person and TWO MILLION DOLLARS ($2,000,000) limit from any one occurrence. The comprehensive commercial general liability insurance shall include coverage for personal injury, bodily injury, and property damage or destruction. Coverage under such policies of insurance shall include collapse and underground property damage hazards. Contractual liability insurance coverage in the amount of not less than TWO MILLION DOLLARS ($2,000,000) is also required. Affiliate means a person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, a corporation subject to the Alaska Corporation Code. .19. 3Lk LESSEE shall obtain owned and non -owned automobile liability insurance with limits of liability of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence combined single limit for bodily injury and property damage. LESSEE shall also maintain workers' compensation insurance as required under Alaska law. The minimum amounts and types of insurance provided by LESSEE shall be subject to revision at the sole discretion of CITY in accordance with standard insurance practices, in order to provide continuously throughout the term of this LEASE and any extensions hereof, a level of protection consonant with good business practice and accepted standards in the industry. Such factors as changes in the type of or extent of use of the Lease Land, increases in the cost of living, inflationary pressures, and other considerations, shall be utilized in assessing whether the minimum insurance requirements should be increased. CITY shall notify LESSEE of any required increase in insurance coverage. All insurance policies shall provide for thirty (30) days' notice of cancellation and /or material change to be sent to CITY at the address designated in ARTICLE 33 of this LEASE. All such policies shall be written by insurance companies legally authorized or licensed to do business in the State of Alaska, and acceptable to CITY (Best's Rating B+ or better). CITY shall be listed as an additional insured under all insurance policies. LESSEE shall furnish CITY, on forms approved by CITY, certificates evidencing that it has procured the insurance required herein prior to the occupancy of the Leased Land or operation by LESSEE. Insurance policy deductibles are subject to approval by CITY. Nothing herein contained shall prevent LESSEE or CITY from placing and maintaining at CITY's or LESSEE's own individual cost and expense, additional or other insurance as may be desired. The minimum insurance requirements under this LEASE shall not act to Iimit LESSEE's liability for any occurrence and shall not limit LESSEE's duty to defend and indemnify CITY for claims related to this LEASE or the Leased Land. 15.2 Subrogation Rights Waived. To the extent permitted by law, LESSEE hereby releases CITY, its elected and appointed officials, employees and volunteers and others working on behalf of CITY from any and all liability or responsibility to LESSEE or anyone claiming through or under LESSEE by way of subrogation or otherwise, for any loss of any kind (including damage to property caused by fire or any other casualty), even if such loss shall have been caused by the fault or negligence of the CITY, its elected or appointed officials, employees or volunteers or others working on behalf of the CITY. This provision shall be applicable and in full force and effect only with respect to loss or damage occurring during the time of LESSEE's occupancy or use (including LESSEE's - 20 - occupancy or use prior to the Effective Date of this LEASE), and LESSEE's policies of insurance shall contain a clause or endorsement to the effect that such release shall not adversely affect or impair such policies or prejudice the right of LESSEE to recover thereunder except as against CITY (including its elected and appointed officials, employees and volunteers and others working on behalf of CITY) during the time of LESSEE's occupancy or use. LESSEE agrees that its policies of insurance will include such a clause or endorsement. ARTICLE 16 - CONDEMNATION If all or any part of the Leased Land is condemned for a public use by any government agency or other duly authorized entity, CITY and LESSEE shall each make a claim against the condemning or taking authority for the amount of any damage incurred by or done to them respectively as a result of the taking. Neither LESSEE nor CITY shall have any rights in or to any award made to the other by the condemning authority; provided, that in the event of a single award to CITY which includes specific damages for loss of LESSEE's leasehold interest, CITY shall transmit to LESSEE the amount of such specific damages so found, if any. If part but not all of the Leased Land is condemned for public use, LESSEE shall make a good faith determination as to whether or not the taking of the part of the Leased Land designated for condemnation will prevent it from continuing to operate on the Leased Land. If LESSEE determines in good faith that the condemning of such part of the Leased Land will prevent it from continuing to operate on the Leased Land, LESSEE may notify CITY in writing to this effect, and this LEASE shall then be terminated for all purposes effective fifteen (15) days from the date LESSEE sends such notice to CITY, or at such other later date as LESSEE shall specify in its notice, and such termination shall be treated in the same manner as a termination at the expiration of the term of this LEASE. LESSEE shall, as a condition precedent to such termination, remove all encumbrances, debts and liens to which the Leased Land is subject. If at the time of such partial taking for public use, LESSEE determines that such partial taking will not prevent it from continuing to operate, then LESSEE and CITY shall negotiate an equitable and partial abatement of the rent beginning to be effective on the actual date when LESSEE is effectively prevented from utilizing the condemned land. ARTICLE 17 - ARBITRATION 17.1 Arbitration. a) Disputes between the parties with respect to the performance of this LEASE that cannot be resolved by the parties, shall be submitted to an independent arbitrator for a settlement pursuant to the provisions of the Alaska Uniform Arbitration Act (AS 09.43.010 et. seq.), as it now exists or may hereafter be amended from time to time, and judgment on the award may be -21- 3b entered in any Superior Court in the State of Alaska. Notwithstanding the foregoing, arbitration shall not be applicable to claims or disputes involving a requested remedy having a value of more than Fifty Thousand Dollars and No /100s ($50,000) (exclusive of interest and costs). All demands for arbitration and all answering statements thereto that include any claim must contain a statement that the total sum or value in controversy, as alleged by the party making such demand or answering statement, is not more than Fifty Thousand Dollars and No /100s ($50,000.) The arbitrator will not have jurisdiction, power, or authority to consider or make findings (except to deny jurisdiction) concerning any claim, counterclaim, dispute or other matter in question where the amount in controversy of any such claim, counterclaim, dispute or matter is more than Fifty Thousand Dollars and No /100s ($50,000). The costs and expenses of arbitration shall be shared equally by the parties, and each party shall bear its own attorney's fees and costs. b) Arbitration procedures shall be applicable only to contract, negligence, and similar claims arising from or related to this LEASE, and shall not be used to resolve or determine any claim based upon fraud, intentional misrepresentation, nor any claim based on conduct that is a felony crime in the State of Alaska. c) Written notice of requests for arbitration of disputes may be served by either party to this LEASE upon the other party. Arbitration of any dispute or claim shall be determined by a single arbitrator selected from a list of not less than five arbitrators obtained from the presiding Superior Court Judge or other appropriate judicial officer in Anchorage, Alaska. The arbitrator shall be a person who (a) has not less than five (5) years legal experience in the State of Alaska prior to appointment; and (b) such legal experience includes substantial experience with long -term commercial real property transactions. Each party shall be provided with a copy of the list and shall be afforded a maximum of ten (10) working days to become familiar with the qualifications of the prospective arbitrators. The arbitrator shall be selected by each party, commencing with the party demanding the arbitration, striking one name from the list until only a single name remains. d) Arbitration hearings shall be conducted in Anchorage, Alaska or such other location as the parties may agree. Each party shall produce at the request of the other party, at least thirty (30) days in advance of such hearing, all documents to be submitted at the hearing and such other documents as are relevant to the issues or likely to lead to relevant information. e) In deciding the claim or dispute, the arbitrator shall follow applicable Alaska law, and the written decision shall be supported by substantial evidence in the record. Failure to apply Alaska law, or entry of a decision that is not based on substantial evidence in the record, shall be additional grounds for modifying or vacating an arbitration decision. -22- 21 ARTICLE 18 - MAINTENANCE AND REPAIRS 18.1 Normal Maintenance. During the entire term of this LEASE and every extension hereof, if any, LESSEE shall, at LESSEE's sole cost, risk and expense, maintain the Leased Land, including any improvements placed thereon by LESSEE, in as good condition as received or constructed by LESSEE, subject to normal, non - abusive use. CITY, at CITY's sole option and expense, may, prior to the commencement of construction by LESSEE, perform maintenance and preventative work on the Leased Land, exclusive of improvements placed thereon by LESSEE, in order to prevent erosion, mitigate damage to plants and animals, or prepare the Leased Land for eventual development by LESSEE or others, by grading, filling or contouring the Leased Land. Any such work performed by CITY shall be at CITY's sole expense and risk unless LESSEE agrees, in advance and in writing, to share such expense and risk. LESSEE shall maintain in first class condition at all times all fire, pollution and other protective equipment, if any are placed on Leased Land. 18.2 Safety Issues. CITY may notify LESSEE in writing of any deficiencies in the performance of LESSEE's maintenance responsibilities as they relate to public health or safety and LESSEE shall promptly within thirty (30) days of receipt of such notice advise CITY in writing of its proposed schedule for performance of any work necessary to cure such deficiencies. If such deficiencies relate to the safety of LESSEE's operation such that the surrounding land and port facilities are exposed to risk, unnecessary potential hazards, or a risk to the public interest (as distinguished from a business risk), or if CITY is not satisfied with the proposed schedule of repairs either because of the delays therein or the scope of the repairs, then CITY may engage an independent engineering consultant well- versed and experienced who shall furnish to CITY a comprehensive survey and report for the purpose of establishing both the need and urgency to perform such maintenance work. As soon as practicable following receipt of said engineer's determinations and recommendations, if the report requires repair then LESSEE shall pay the cost of the report and perform such work in accordance therewith at LESSEE's cost, risk and expense. 18.3 Cost of Repairs. Should LESSEE dispute the necessity of any maintenance work as being necessary or advisable or reasonable to protect the public facilities on adjacent land, it may submit the matter to arbitration; provided, however, that pending the decision of the arbitrator it shall fully comply with the maintenance requests. If an arbitration award should ultimately find that the repairs were not necessary then LESSEE may either -23- 38 deduct from future rental payments the cost of such repairs or be reimbursed therefor. In deciding whether repairs requested by CITY or required by an engineering report are necessary, the arbitration panel is to give primary consideration to the safety and welfare of the Seward port facilities and the citizens of Seward in light of the highest standards in the industry. If any facility or service provided by CITY to the Leased Land shall become inadequate due to changes in environmental control standards or should any facility require updating or improvement by reason of a change in LESSEE's use of the Leased Land or operations therefrom, LESSEE shall either construct such improvements at LESSEE's own cost or reimburse CITY for such work at the option of CITY. ARTICLE 19 - ENVIRONMENTAL CONCERNS 1 9. 1 Hazardous Materials. a) Condition of Site. LESSEE has had full opportunity to examine the site for the presence of any Hazardous Material and accepts the site in "as is" condition. LESSEE may elect, at LESSEE's sole cost, to conduct a baseline soils test prior to execution of this LEASE. b) Release of CITY. Any other provision of this LEASE to the contrary notwithstanding, LESSEE releases CITY from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert fees) arising prior to, during, and after the term of this LEASE, and resulting from the use, keeping, storage or disposal of Hazardous Material on the Leased Land by LESSEE , or arising out of or resulting from LESSEE's operations at the Leased Land except for those claims arising out of CITY's sole negligence or intentional misconduct. This release includes, without limitation, any and all costs incurred due to any investigation of the Leased Land or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law or regulation. c) Use of Hazardous Materials on the Site. i) LESSEE shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the Leased Land except for such Hazardous Material as is necessary to conduct LESSEE's authorized use of the Leased Land. - 3C ii) Any Hazardous Material permitted on the Leased Land as provided in this paragraph, and all containers therefor, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. iii) LESSEE shall not discharge, leak or emit, or permit to be discharged, leaked or emitted, any material into the atmosphere, ground, ground water, sewer system or any body of water, if such material (as reasonably determined by the City, or any governmental authority) does or may, pollute or contaminate the same, or may adversely affect the (a) health, welfare or safety of persons, whether located on the Leased Land or elsewhere; or (b) condition, use or enjoyment of the Leased Land or any other area or personal property. iv) LESSEE hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage and disposal of Hazardous Material kept or brought on the Leased Land by LESSEE, its authorized representatives and invitees, and LESSEE shall give immediate notice to CITY of any violation of potential violation of or noncompliance with the provisions of this subparagraph. d) Indemnification of CITY. Any other provision of this LEASE to the contrary notwithstanding, LESSEE shall defend, indemnify and hold CITY harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to: i) The presence, disposal, release or threatened release of any such Hazardous Material which is on or from the Leased Land, soil, water, ground water, vegetation, buildings, personal property, persons, animals or otherwise; ii) Any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material or any use of the Leased Land; - 440 iii) Any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material or any use of the Leased Land; and /or iv) Any violation of or noncompliance with any laws applicable thereto; provided, however, that this Section 19.1(d) shall apply only if the acts giving rise to the claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (1) occur prior to or during the tern of this LEASE; and (2) arise in whole or in part from the use of, operations on, or activities on the Leased Land by LESSEE , employees, agents, invitees, contractors, subcontractors, authorized representatives, subtenants or any other persons. The provisions of this subparagraph shall be in addition to any other obligations and liabilities LESSEE may have to CITY at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this LEASE. e) Operator. For all purposes, LESSEE shall be deemed the operator of any facility on the Leased Land. f) Hazardous Material Defined. As used in this LEASE, Hazardous Material is any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defined as industrial waste hazardous waste, extremely hazardous waste or a hazardous substance under any Environmental Law. Notwithstanding any statutory petroleum exclusion, for the purposes of this LEASE, the term Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. g) Environmental Law Defined. As used in this LEASE, Environmental Laws include any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human health and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, Alaska Statutes Title 46, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. . 26- 1� 19.2 Permits and Reporting. a) Permits Required by Other Governmental Agencies. LESSEE shall obtain all permits or approvals required by any applicable law or regulation. Copies of all such permits shall be provided to CITY prior to LESSEE commencing work under this LEASE. LESSEE shall promptly make all reports to any federal, state or local government or agency required by any permit or Environmental Law, including reports of any spill or discharge of Hazardous Material. The CITY, through the City Manager, may order LESSEE to immediately cease any operations or activities on the Leased Land if the same is being carried out without necessary permits, in violation of the terms of any permit or Environmental Law, or contrary to this LEASE. b) Correspondence With and Reports to Environmental Agencies. LESSEE shall immediately provide CITY with copies of all correspondence and notice, including copies, of all reports between LESSEE and any state, federal or local government or agency regulating Hazardous Material which relates to LESSEE's operations on or use of the Leased Land. ARTICLE 20 - ESTOPPEL CERTIFICATES Either party shall at any time and from time to time upon not less than ten (10) days' prior written request by the other party, execute, acknowledge, and deliver to such party, or to its designee, a statement in writing certifying that this LEASE is unamended and in full force and effect (or, if there has been any amendment thereof, that the same is in full force and effect as amended and stating the amendment or amendments), that there are no defaults existing (or, if there is any claimed default, stating the nature and extent thereof); and stating the dates to which the rent and other charges have been paid in advance. ARTICLE 21 - CONDITIONS AND COVENANTS All the provisions of this LEASE shall be construed to be "conditions" as well as "covenants," as though the words specifically expressing or imparting covenants and conditions were used in each separate provision. ARTICLE 22 - NO WAIVER OF BREACH No failure by either CITY or LESSEE to insist upon the strict performance by the other of any term, covenant or condition of this LEASE or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of such terms, covenants or - 27 Dk conditions. No waiver of any breach shall affect or alter this LEASE, but each and every term, covenant and condition of this LEASE shall continue in full force and effect with respect to any other then existing or subsequent breach. ARTICLE 23 - TIME OF THE ESSENCE Time is of the essence of this LEASE and of each provision. ARTICLE 24 - COMPUTATION OF TIME The time in which any act provided by this LEASE is to be done by shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday or a holiday, and then it is also excluded. ARTICLE 25 - SUCCESSORS IN INTEREST Each and all of the terms, covenants and conditions in this LEASE shall inure to the benefit of and shall be binding upon the successors in interest of CITY and LESSEE. ARTICLE 26 - ENTIRE AGREEMENT This LEASE contains the entire agreement of the parties with respect to the matters covered by this LEASE, and no other agreement, statement or promise made by any party which is not contained in this LEASE shall be binding or valid. ARTICLE 27 - GOVERNING LAW This LEASE shall be governed by, construed and enforced in accordance with the laws of the State of Alaska. The terms of this LEASE are subject in all respects to the Charter and Code of Ordinances of CITY in effect on the date of this LEASE, and as they may be hereafter amended, including without limitation, Chapter 7.05 of the Seward City Code. ARTICLE 28 - PARTIAL INVALIDITY If any provision of this LEASE is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. ARTICLE 29 - RELATIONSHIP OF PARTIES -98- Nothing contained in this LEASE shall be deemed or construed by the parties or by any third person to create the relationship of principal and agent or of partnership or of joint venture or of any association between CITY and LESSEE; and neither the method of computation of rent, nor any other provisions contained in this LEASE nor any acts of the parties, shall be deemed to create any relationship between CITY and LESSEE other than the relationship of lessee and lessor. ARTICLE 30 - INTERPRETATION The language in all parts of this LEASE shall in all cases be simply construed according to its fair meaning and not for or against CITY or LESSEE, as both CITY and LESSEE have had the opportunity to seek assistance of counsel in drafting and reviewing this LEASE. ARTICLE 31— CAPTIONS Captions of the articles, paragraphs and subparagraphs of this LEASE are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this LEASE. ARTICLE 32 - AMENDMENT This LEASE is not subject to amendment except in writing executed by both parties hereto. ARTICLE 33 - NOTICES All notices, demands or requests from one party to another shall be delivered in person or be sent by first class mail, postage prepaid, to the addresses stated in this Article and to such other persons and addresses as either party may designate. Notice by mail shall be deemed to have been given at the time of mailing. - LILk All notices. detaaands and requests from LESSEE to CITY shall he given to CITY at (he hlllowine� addess: City Manager CRY OF SEWARD P.O. Box 1 67 Seward. Alaska 99664 All notices. demands or requests from CITY to LESSEE shall he given to LESSEE at the fol lowing address: Global Tower Assets. LLC 750 Park of Commerce Boulevard, Suite 300 Boca Raton. Florida 33487-3612 Each party shall have the right, (tom time to time. to designate_ a different address by notice given in conformity with this Article. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the dates herein set forth. CITY: LESSEE: CITY OF SE \WARD GLOBAL TOWER ASSETS, LI,C By: Phillip Oates By: Its: City Managcr Its: Date: ltte 4 A`VFEST: �l J{lhauana Kinney, CNIC City Clerk L1EGAx. STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) 1'1_I15 IS TO CERTIFY that on this day of . 2011, before me, 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. \yV1'1'NESS nay hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires: STATE OF Or!.b'tA. d ) ) ss. THIS IS TO CERTIFY that on this day of UAL, 2011. before me, the undersigned, •t Notary Public in and for the State of �k appeared a..&tgryL -►'U , known to »le and to me known to be t le _. ‘f for Global Tower Assets, LLC, and authorized to execute documents on its behalf, and is tl • individual named in and who executed the foregoing document on behalf of the L.LC for the uses and purposes therein set forth. WITNESS m hand and notarial seal the day and year first hereinabove written. r titarA I't lli ( •1 f i I, DV RWA + y�` e- l .. / Tracy !C} NI, , l �E1�1 t t, r iu «n # EE00)832 Notary Publi : in and for �, E u zs: rt�L.Y 31,2014 7 31/Z011 n-uF � �� , ; ■ in.:c„xr, CO, u�c, M Commission Expires: j `7- .3t. 1`a Sponsored by: Oates Postponed to: June 27, 2011 CITY OF SEWARD, ALASKA RESOLUTION 2011 -049 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING FUNDS IN AN AMOUNT UP TO $1,500,000 FOR PURPOSES OF PAYING COSTS ASSOCIATED WITH THE PROPOSED SEWARD COMMUNITY LIBRARY MUSEUM WHEREAS, the City of Seward (the "City ") and the Seward Community Library Museum Building Committee (the "Committee ") have been working since 2003 to secure funding for the design and construction of a new community library museum (the "Project "); and WHEREAS, the City and Committee have secured $5.1 million in State of Alaska and private foundation funding for the Project, and $1.1 million in grant applications are pending; and WHEREAS, the City voters approved the issuance of a general obligation bond (the "Bond ") in an amount not to exceed $5 million to finance capital costs of the Project; and WHEREAS, the City has determined that it is in the best interests of the City to issue the Bond in an aggregate amount not to exceed $3,700,000; and WHEREAS, the City has estimated that it will need an additional amount to pay for costs of the Project, and the City Council desires to appropriate an amount not -to- exceed $1.5 million for the project; and WHEREAS, the estimated undesignated fund balance in the General Fund is approximately $3.5 million prior to this appropriation, and the City's Fund Balance Policy bond requires undesignated fund balance between $2.8 million and $5.7 million, representing between three and six months operating costs; and WHEREAS, this appropriation will reduce the undesignated fund balance in the General Fund to $2.0 million which is 29% below the minimum required undesignated fund balance threshold according to the City's Fund Balance Policy. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. An amount up to $1,500,000 is hereby appropriated from the General Fund undesignated reserves account no. 101- 0000 - 3071 -0 to the Library \Museum Capital Project account no. 626 - 6262 -5920 to be used for payment of Project costs. Section 2. This resolution shall take affect immediately upon its adoption. LAI Council Agenda Statement cost- Meeting Date: June 13, 2011 4 �A51� P From: Phillip Oates, City Manager Agenda Item: Appropriating Funds NTE $1.5 million for Library/Museum Project Costs BACKGROUND & JUSTIFICATION: The Seward City Council has voted to issue general obligation bonds in an amount not to exceed $3.7 million for the purpose of constructing a new library /museum facility. In an effort to limit the amount of debt issued for the project, the Council has expressed an interest in utilizing some of the General Fund's Undesignated Fund Balance to reduce the required amount of capital financing. The General Fund Undesignated Fund Balance (after setting aside $100,000 in costs associated with the Borough's costs of implementing an increase in sales tax on alcohol and tobacco products) is approximately $3.4 million. The City's fund balance policy requires that undesignated fund balance be equal to between three and six months expenditures and transfers -out which is between $2.8 million and $5.7 million. The Council can utilize up to $600,000 of undesignated fund balance and stay within the current policy bands. However, the Council has asked for the flexibility to utilize an amount not to exceed $1.5 million of undesignated fund balance for this project. The actual amount of funding needed will depend on a number of factors including the ultimate construction costs of the project, the level of fundraising accomplished by the Seward Library Museum Building Committee, and the magnitude of any unanticipated project costs. INTENT: To appropriate an amount not -to- exceed $1.5 million to pay costs associated with the proposed library /museum project. 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 or Other Plans or Policies: FISCAL NOTE: This appropriation will reduce the City's undesignated fund balance from approximately $3.4 million to $1.9 million, which is $900,000 lower than the floor of the City's current fund balance policy, and $2.35 million lower than the mid -point of the fund balance policy "band ". The City's current level of undesignated fund balance is largely the result of one -time EXXON Valdez Oil Spill Settlement Proceeds of nearly $2 million received in 2009/2010, rather than the result of prudent fiscal management. The finance director has strong concerns about the reduction in undesignated fund balance given the poor condition of some City enterprise funds, the lack of funding available for capital repair and replacement, current financial challenges associated with the healthcare system, the need to match grants to leverage funding for harbor and other critical infrastructure, taxpayer fatigue associated with increases in fees and taxes, and the need to demonstrate strong positive fund balance to secure bond financing for the library /museum and other City projects. Approved by Finance Department: ,J CITY OF SEWARD RESOLUTION 2011 - ATTORNEY REVIEW: Yes X No RECOMMENDATION: Council adopt Resolution 2011 - , a ppropriating an amount not to exceed $1.5 million for the purposes of paying costs associated with the proposed library/museum project. Sponsored by: Oates Postponed to: June 27, 2011 CITY OF SEWARD, ALASKA RESOLUTION 2011 -048 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, DESIGNATING $100,000 OF GENERAL FUND UNDESIGNATED FUND BALANCE TO COVER COSTS ASSOCIATED WITH THE KENAI PENINSULA BOROUGH'S IMPLEMENTATION OF THE CITY OF SEWARD'S INCREASE IN SALES TAX ON ALCOHOL BEVERAGES AND TOBACCO PRODUCTS WHEREAS, the Seward City Council passed Ordinance 2011 -003 on May 23, 2011, amending Seward City Code Sections 5.35.010 and 5.35.035 to allow for an increase in sales tax for alcohol beverages and tobacco products; and WHEREAS, in accordance with AS 29.35.170, the Kenai Peninsula Borough is responsible for collecting sales tax on behalf of cities in its boundaries, and will therefore carry the burden of implementing the increase in the sales tax rate; and WHEREAS, while there is no legal requirement that the City of Seward pay the additional costs that the Borough will incur as a result of implementing this tax increase, the City recognizes that this tax variation is unique to Seward and places a burden on the Borough's staff, and results in anticipated costs to the Borough of approximately $100,000 required to modify the sales tax software to accommodate this change, and to produce revised sales tax forms, and to conduct public education required for businesses engaged in the business of selling alcohol and /or tobacco products; and WHEREAS, following implementation of the tax increase, the annual additional impacts of the tax increase on the Borough staff are intended to be nominal; and WHEREAS, the City of Seward does not wish to establish a precedent that the City would agree to cover future potential costs associated with modifications to property tax and /or sales tax, or the corresponding effect on the Kenai Peninsula Borough resulting from such modifications; and WHEREAS, this action will reduce the City's Undesignated Fund Balance from the current level of approximately $3.5 million to $3.4 million, which is within the City's current required fund balance policy band of between $2.8 million and $5.7 million. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: 0 CITY OF SEWARD, ALASKA RESOLUTION 2011 -048 Section 1. The amount of $100,000 is hereby appropriated from the General Fund Undesignated Fund Balance account no. 101- 0000 -3050 to the Designated Fund Balance account no. 101- 0000 -3042. Section 2. The purpose of this action is to segregate funds which may be needed to implement the alcohol and tobacco tax, but prior to spending funds from this $100,000 designation, a separate resolution will come back to the Seward City Council for approval. 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 June, 2011. THE CITY OF SEWARD ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney, CMC City Clerk (City Seal) St Council Agenda Statement S EA Meeting Date: June 13, 2011 4 4ASt From: Phillip Oates, City ManagerZ Agenda Item: Designating Fund Balance for Kenai Peninsula Borough's cost of implementing changes to sales tax resulting from an increase in tax on sales of alcohol and tobacco products BACKGROUND & JUSTIFICATION: In accordance with Alaska Statute 29.35.170, the Kenai Peninsula Borough maintains responsibility for collecting and remitting sales tax on behalf of cities within its jurisdiction, including the city of Seward. Therefore, any changes that the City of Seward makes to its sales tax code, has a direct impact on the borough and its staff. The Seward City Council has worked diligently over the past year to develop a funding source to finance construction of the new library /museum facility, and on May 23, 2011, passed Ordinance 2011 -003 which increased the sales tax rate on sales of alcohol and tobacco products. The change in the tax rate is slated to take effect January 1, 2012. In a council work session on March 14, 2011, the Borough finance director described the hardship that is placed on the Borough any time that a city within the borough, establishes a variable tax structure which is not consistent with the Borough's. Such changes require changes to the Borough's computer software and forms, and result in considerable staff time to determine how to implement the change, educate the businesses prior to the change, ensure that the sales tax code changes are appropriately implemented and reported by businesses, and to audit compliance. The variable change in sales tax rate on alcohol and tobacco products is a new variation that the Borough is not currently capable of addressing without considerable costs involved in reprogramming their software, modifying sales tax reporting forms, etc. While Alaska Statute clearly requires that boroughs administer the tax code for cities within their boundaries, we are told that the magnitude of the costs required to implement this particular change ($84,000 to $100,000) are not available within the Borough's budget, and given the challenges the Borough is having balancing its budget in light of the recent seasonal reduction in sales tax on non- prepared food items, would cause a hardship on the Borough and its staff to administer. The City does not want to establish a precedent whereby the Borough would expect the City to pay for any future modifications that it may choose to make relative to the tax code. On the other hand, the City would prefer to smooth the way for this tax increase so that the increase in revenues is available to cover debt service payments on bonds which must be issued in the near future. If the City elects not to pay the costs associated with this modification, it is likely that the Borough may be unwilling or unable to pay to make the change, causing undesired delays in our library /museum project. INTENT: To set aside funds to pay the costs associated with modifying the Kenai Peninsula Borough's software and forms, so that the City's increase in sales tax rate associated with sales of alcohol and tobacco products, can move forward expeditiously, without further delays to the library /museum proj ect. CITY OF SEWARD RESOLUTION 2011 - 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 or Other Plans or Policies: FISCAL NOTE: This appropriation will reduce the City's undesignated fund balance from approximately $3.5 million to $3.4 million, which is still within the 3 -6 months' reserves required by the City's fund balance policy. The administration will bring back a resolution to the City Council to appropriate the designated amount (not to exceed $100,000) for the purposes of this project, once the actual costs are known, and prior to expending funds to implement the change in tax rates. Approved by Finance Department: ATTORNEY REVIEW: Yes X No RECOMMENDATION: (2S Council adopt Resolution 2011 , designating the amount of $100,000 from General Fund undesignated fund balance, for the purpose of making funds available to implement the increase in the sales tax rate associated with the alcohol/tobacco tax. Sponsored by: Shafer Postponed to: June 13, 2011 Postponed to: June 27, 2011 CITY OF SEWARD, ALASKA RESOLUTION 2011 -036 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE SURVEILLANCE CAMERA POLICY WHEREAS, the City of Seward has used surveillance cameras since 2004; and WHEREAS, the City of Seward did not develop or approve a surveillance camera policy until 2010 by Resolution 2010 -028; and WHEREAS, the State of Alaska has a strong right to privacy guaranteed by the State Constitution; and WHEREAS, due to public concern, the surveillance policy was revised to offer citizens additional protections from unnecessary surveillance by Resolution 2011 -009; and WHEREAS, both the City Manager and the Chief of Police stated surveillance cameras would not be located on Fourth Avenue after the public, businesses and citizens expressed concerns regarding the invasion of privacy from continual monitoring by cameras; and WHEREAS, it is in the best interests of the City of Seward to maintain its credibility with the public and so the City Council wishes to amend the Surveillance Camera Policy as listed in the sections below. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City of Seward Surveillance Camera Policy to herby amended as attached to this resolution and as follows (Strikeeut = delete; Bold italics = add): XI LOCATION OF CAMERAS A. City Council approval is required of all surveillance cameras locations by resolution in areas other than the critical infrastructure identified in the latest vulnerability assessment for the City of Seward from Alaska Homeland Security. No cameras will be allowed on 4th Avenue south of the boat launch ramp in the Small Boat Harbor. If camera surveillance of the Seward Fire Department Building is required, the camera shall be placed inside the facility to protect fire equipment from unknown danger. Any potential placement of surveillance cameras on any pedestrian /public areas must have final approval by the City Council of the City of Seward by resolution. Any exception to this requirement for a covert surveillance CITY OF SEWARD, ALASKA RESOLUTION 2011 -036 camera requires the approval of the City Manager and the City Council will be notified as soon as an arrest has been made. Exceptions could also occur as directed by court order. 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 27`" day of June, 2011. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney, CMC City Clerk (City Seal) Council Agenda Statement r se, .. Meeting Date: June 13, 2011 c� k; = A Through: City Council 1 , From: Johanna Kinney, City Clerk Agenda Item: Amending the Surveillance era Policy BACKGROUND & JUSTIFICATION: Council adopted the Surveillance Camera Policy in 2010 by Resolution 2010 -028 and revised it in 2011 by Resolution 2011 -009 to address citizen concerns. It is Councilmember Shafer "s intent to revise the policy to address further concerns of privacy. The latest amended policy includes council approval by resolution of all camera locations within the City, as well as specific language to refrain from putting a camera on the Fire Department Building, except if placed inside the building. This amending resolution also addresses council restricts cameras on Fourth Avenue south of the boat launch ramp in the Small Boat Harbor and requires approval of any potential placement of pedestrian/public areas. This proposed amended policy is attached and Council approval is requested by Councilmember Shafer. 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. INTENT: This resolution requests that Council approve the amended Surveillance Camera Policy. ATTORNEY REVIEW: In 2009, the City passed Resolution 2009 -051 accepting a $350.000 pass- through grant from the State of Alaska Division of Homeland Security & Emergency Management ( "DHS &EM ") Alaska Homeland Security Grant Program 2008 (the "Grant ") to expand and update its infrastructure security cameras. The Grant monies originated from the federal Department of Homeland Security ( "DHS "). The City applied for the Grant in response to a Security Vulnerability Assessment ( "SVA ") that demonstrated a need to expand and upgrade the City's existing infrastructure security system. The SVA identifies critical infrastructure belonging to the City which may be vulnerable to attack. Access to the SVA is limited to only those who have a need to know, with the appropriate security clearance. The SVA is not a public document. The City used the Grant to purchase surveillance cameras for those areas of critical infrastructure identified in the SVA as vulnerable and in need of additional security and surveillance. The City adopted Resolutions 2010 -028 and 2011 -009, adopting and amending the Surveillance Camera Policy. The Policy covers cameras purchased with Grant funds as well as other Ste surveillance cameras throughout the City. The City's police department verified that cameras have been effective in deterring crime and vandalism and aiding in investigations. The Policy requires City Council approval of camera locations "in areas other than the critical infrastructure identified in the latest vulnerability assessment for the City of Seward from Alaska Homeland Security." Resolution 2011 -036 would, among other things, delete this reference to the SVA and make the location of all cameras subject to council approval by resolution, except covert surveillance for criminal investigation purposes. The proposed change also would prohibit cameras on much of 4 Avenue, and would require council approval for any camera covering "any pedestrian/public area." (The City is constitutionally prohibited from maintaining security cameras in locations that would violate individual privacy rights. Chief Clemons confirmed that all cameras are placed in locations where no privacy rights are violated.) The proposed amendment may place the City at risk of violating the Grant terms and programmatic requirements by limiting placement of cameras purchased with Grant funds. A representative of DHS &EM advised the City that, if the cameras are not used to protect the critical infrastructure identified in the SVA, the City will have to repay the Grant. "PCII" is protected critical infrastructure information. PCII is not public information and sharing of PCII is governed by the Critical Infrastructure Information Act of 2002 and related regulations. In terms of disclosing or sharing PCII with the general public, only advisories, alerts, and warnings regarding potential threats and vulnerability to critical infrastructure as appropriate and pursuant to the CII Act may be disclosed and only after authorization from the Secretary, Under Secretary for Preparedness, Asst. Secretary for Cyber Security and Telecommunications, or Asst. Secretary for Infrastructure Protection. Limited exceptions to this authorization include when "exigent circumstances" exist or for law enforcement purposes. The City's vulnerability assessment has been deemed PCII. Recently, the City received the following notice from the DHS &EM that the vulnerability assessment is exempt from public review and contains Homeland Security Sensitive information. The following disclosure was attached to the notice: DISTRIBUTION: By the authority of the PCII Program Manager, this information may only be shared with government personnel and their contractors provided that the individuals seeking access to the information are currently performing homeland security duties and have a need -to -know. All recipients must handle and safeguard this information according to 6 U.S.C. §§ 131 et seq.- Protection of Critical Infrastructure Information. Data on this system contains PCII. In accordance with the provisions of the Critical Infrastructure Act of 2002, 6 U.S.C. 131 et seq., it is exempt from release under the Freedom of Information Act (5 U.S.C. 552) and similar State and local disclosure laws. Unauthorized release may result in criminal and administrative penalties. It is to be safeguarded and disseminated in accordance with the Critical Infrastructure Information Act of 2002, 6 U.S.C. §§ 31 et seq., the implementing Regulation at 6 C.F.R. Part 29 and PCII Program requirements. The Grant allowed the City to purchase and install surveillance cameras at the critical infrastructure locations identified in the SVA. The proposed amendment would require public approval and disclosure of all surveillance cameras locations as well as placement of signage �1 identifying that a camera is recording at a surveillance location. This may violate the CH Act of 2002 because divulging the location of a surveillance camera will result in the unauthorized disclosure of vulnerable CI locations, which is PCII Such disclosure will place the City at risk of violating federal law, as well as State law (Alaska Public Records Act) and the Seward Code (Section 2.05.030(c)). Penalties for the unauthorized disclosure of PCII include criminal and civil penalties, including imprisonment. FISCAL NOTE: The City runs the risk of losing $350,000 in federal grant funds if it fails to abide by all of the "critical infrastructure" provisions of the grant agreement with the Department of Homeland Security. This would require the City to not only repay the grant to the federal government, but this would invalidate the City's eligibility for future Homeland Security grants. In the case of the relocation of a particular camera to another location meeting the Homeland Security requirements, the estimated costs of relocation is approximately $5,000. Approved by Finance Department: RECOMMENDATION: Council member Shafer recommends approval of Resolution 2011 -036, amending the City Surveillance Camera Policy. City of Seward Surveillance Cameras Policy 1. PURPOSE The placement of surveillance cameras in the City of Seward area will contribute to public safety for residents and visitors by employing a system that incorporates modern technology for video monitoring, storage, and retrieval. This system will improve the Department's awareness of public safety emergencies, help prevent and detect criminal activities, and support the apprehension and prosecution of those responsible for unlawful activities. This "smart- policing" technology, combined with the confidence and trust of our residents, can help to improve public safety. All cameras will have signage that indicate Formatted: Font: Not Bold, Not Italic, No surveillance operations. underline This policy establishes rules for employing and using the surveillance system, achieving program goals, and protecting the rights all citizens have for privacy. All public surveillance cameras will be noticed. 11. DESIGN SPECIFICATIONS A. The video surveillance system used by the City of Seward Police Department will utilize multiple fixed and adjustable cameras focused on predetermined areas in public places. Cameras shall be situated in a manner and location that will maximize the field of view of public areas to protect infrastructure and improve public safety. Camera placement will minimize the potential and inadvertent capture of images from areas where a reasonable expectation of privacy exists. Property owners will be notified when Formatted: Font: Not Bold, Not Italic, No cameras inadvertently overlap into their property. underline B. In any location where the view of any camera may compromise a citizen's privacy expectation the Chief of Police or \designated staff, shall review the camera's location to relocate the unit or employ window- blanking technology to eliminate the potential for video intrusion. All findings will be reported in writing to the City Manager. C. The system shall be equipped with Pan, Tilt, and Zoom (PTZ) cameras that allow operators to manipulate the framing or focal length of a video image only for the specific purpose of monitoring suspicious persons or activities or as the result of a Call- For - Service (CFS). D. The City of Seward MIS Department in coordination with the Police Department will have authority to install, service, and maintain the surveillance camera system. 111. RACIAL PROFILING /NONDISCRIMINATION No operator shall select any person for observation in view of the surveillance camera system based solely on their race, ethnicity. or sex. The surveillance camera system shall only be used for purposes directly related to public safety. infrastructure protection, or authorized internal or criminal investigations. The surveillance camera system shall not he used to track individuals arbitrarily, or based on race, gender, ethnicity, sexual orientation, disability or other classifications protected by law. Page 1 of 3 — Approved by Resolution 2011 -036 O0-4 c■sl 14cm 27, 2011 5`:\ Operators shall make specific observations of individuals based only on articulable reasonable suspicion that the person may be or may have been involved in criminal activity, or as the result of a Call -For- Service to law enforcement for criminal activity in the area of the camera's viewing parameters. IV. STORAGE /RETRIEVAL OF IMAGES Video images captured by the surveillance system will be automatically recorded over after 31 days unless the Department or other law enforcement agency submits a request to review the captured images for a legitimate criminal investigation. Access will be limited to those individuals described in Section VI below. V. IDENTIFYING MONITORED ZONES The City of' Seward surveillance camera system shall be equipped with capabilities that provide an audit trail of system use and user access. The Chief of Police and designated staff will investigate complaints of improper use of the system. All findings will be reported in writing to the City Manage,. Random audits Formatted: Font: Not Bold, Not Italic, No will occur at least two times annually. underline VI. USER ACCESS Authorized users will be limited to those law enforcement employees with a specific, ongoing need to access the system for the purpose of crime prevention and the detection, identification, or apprehension of individuals as a result of a safety emergency response or authorized criminal investigation. All users require the approval of the Chief' of Police or the Acting Chief of Police. All persons designated as authorized system users shall receive training and a unique user identification in order to access the system. Images stored on servers shall only be accessed and retrieved by authorized system users, after approval of the Chief of Police, in response to public safety emergencies, authorized internal or criminal investigations, or legally requested copies under of the Public Information Act. The Police Department will charge a $30 fee for legally requested copies of surveillance camera footage. VII. UNUSED VIDEO DATA Video data that is not retained for evidentiary purposes, public safety reasons, or as a result of a court order will not be reproduced, distributed. provided, or shown to other persons without approval of the City Manager. IX. VIDEO DATA AS EVIDENCE Video data retained for evidentiary purposes shall only be reproduced for the purpose of case filing and pre -trial discovery with the approval of the District Attorney. All copies will be accounted for in the Department's Evidence storage system. The City of Seward surveillance camera system will be randomly audited, to ensure that the system is being used appropriately. — Page 2 of 3 — Approved by Resolution 2011-036 00g r.ol=ehruary-- L4on_ ° 2011 X. PAN, TILT & ZOOM (PTZ) CAMERA USAGE A. All active observation operations employing PTZ cameras shall be done as the result of specific articulable probable cause. B. PTZ camera operators are responsible for protecting the public's right to privacy. C. PTZ camera operators are forbidden from looking at non - public areas and areas in which there is a reasonable expectation of privacy. D. PTZ camera operations will be audited for misuse violations. E. PTZ camera images and operators are subject to the all the items in this policy. XI LOCATION OF CAMERAS City Council approval is required of all surveillance cameras locations by resolution _.in areas other than the critical infrastructure identified in the latest vulnerability assessment for the City of Seward from Alaska Homeland Security. No cameras will beallowed on 4th Avenue south of the boat launch ramp in the Small Boat Harbor. If camera surveillance of the Seward lire Department Building is iequiired the camera shall be placed insij .. the f cihtx to protect f re equipment from unknown, danger..__ An) potential_ placement of survcill,tncs cameras tman} pc.icstnan public areas must hatie final approval b. the City Council of the Cita of Seward by resolution. Any exception to this requirement for a covert surveillance camera requires the approval of the City Manager and the City Council will be notified as soon as an arrest has been made. Exceptions could also occur as directed by court order. XII. POLICY VIOLATIONS Unauthorized access to the City of Seward surveillance camera system, misuse of the camera system. unauthorized reproduction of surveillance camera images, or unauthorized distribution of camera images by city employees will result in immediate suspension pending an investigation to determine the appropriate disciplinary action. This disciplinary action includes the possibility of termination from employment. — Page 3 of 3 — 1 Approved by Resolution 2011 - 0.36 e?rr1^etaruar!, 1-10n June 2 2011 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2011 -052 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO APPROVE AN INTERGOVERNMENTAL COOPERATIVE AGREEMENT BETWEEN THE STATE OF ALASKA, DEPARTMENT OF NATURAL RESOURCES, DIVISION OF FORESTRY AND THE CITY OF SEWARD WHEREAS, pursuant to AS 41.15.010, et seq., the State of Alaska is responsible for the protection of natural resources and watersheds on all state, private, and municipal lands; and WHEREAS, pursuant to Title 2 and 9 of the Seward City Code of Ordinances, the Seward Fire Department is responsible for fire protection within its fire service area boundaries; and WHEREAS, an intergovernmental cooperative agreement has been negotiated between the City of Seward and the State of Alaska, Department of Natural Resources, Division of Forestry, in order to provide more comprehensive fire protection from wildland fires and protection of our community; and WHEREAS, the Seward Fire Department has examined the proposed agreement and recommends adoption. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. That the Cooperative Fire Protection Agreement, a copy of which is attached hereto, between the State of Alaska, Department of Natural Resources, Division of Forestry and the City of Seward is adopted, and the City Manager is authorized to execute and effectuate this agreement. Section 2. That the 2011 Annual Operating Plan format attached hereto is approved, and the City Manager is authorized to execute annual operating plans substantially in this format throughout the duration of the Cooperative Fire Protection Agreement. 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 27 day of June, 2011. Agenda Statement Meeting Date: 27 June 2011 IF . OFStk q To: Mayor and Council Members Through: Phillip Oates, City Manager 414-A-10" From: Eddie Athey, Deputy Fire Chief Agenda Item: Cooperative Fire Protection Agreement between the State of Alaska, Department of Natural Resources, Division of Forestry and the City of Seward. BACKGROUND & JUSTIFICATION: Alaska Statute 41.15.010 provides that "It is the intent of AS 41.15.010- 41.15.170 (that the State of Alaska) to provide protection (from wildland fire and other destructive agents), commensurate with the values at risk, on land that is owned privately, by the state, or by a municipality." The City of Seward Fire Department recognizes we have an obligation to provide protection to life and property from wildland fires within our area of responsibility, subject to available resources, funding, and personnel. Therefore, it is to the mutual advantage of the city and the state to coordinate efforts in the prevention, detection, and suppression of wildland fires. Additionally it is in the best interests of the city and the state that wildland fires be suppressed quickly and efficiently to minimize the destruction of natural resources and the threat to life, property, and the community. INTENT: Enter into a cooperative agreement between the State of Alaska, Department of Natural Resources, Division of Forestry and the City of Seward for continued protection of our community and its natural resources. 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 or Other Plans or Policies: N/A FISCAL NOTE: This agreement may result in possible increased revenue based on the demand for resources within the Kenai Peninsula Borough during fire season, which . o .e accurately estimated. Approved by Finance Department: 6,64,0141 ATTORNEY REVIEW: Yes No �l RECOMMENDATION: Council approves Resolution 2011- Q5c authorizing the City Manager to approve an intergovernmental Cooperative Fire Protection Agreement between the State of Alaska, Department of Natural Resources, Division of Forestry and the City of Seward. !4t, 2/ 1 1 2011 ANNUAL OPERATING PLAN Agencies Involved: A. State of Alaska, Department of Natural Resources, Division of Forestry, Kenai - Kodiak Area Office herein referred to as "State." B. City of Seward herein referred to "Cooperator." This Annual Operating Plan Establishes The Policy And Procedures For The Following: A. Definition of Cooperator Response Areas. B. Inventory of Firefighting Resources. C. Apparatus and Personnel Conditions of Hire, Payment Rates & Billing Procedures. D. Coordination of Prevention, Investigation and Public Education efforts. E. Operational Procedures within the Primary Response Area. F. Personnel Qualification Requirements. G. Training. H. Radio Frequencies. I. Cooperator Specific Subjects and Issues J. Effective Date and Termination K. Compliance Failure L. Notice M. Severability N. Attachments A -1 Cooperator Response Area Map A -2 Cooperator Command Contact List B -1 Kenai Kodiak Area Vehicle List B -2 Kenai Kodiak Area Personnel Roster and Command Contacts C -1 State of Alaska, Div. of Forestry, Cooperator Conditions of Hire, 2011 C -2 Cooperator Equipment Availability and Rate List C -3 Cooperator Personnel Roster and Pay Rates C -5 Cooperator Standardized Invoice C -6 Cooperator Standardized Itemization of Equipment Billing C -7 Cooperator Standardized Itemization of Personnel Billing C -9 Property Loss /Damage Report C -8 Memorandum from Kurth, Chief of Fire and Aviation D -I State Radio Frequency List D -2 Cooperator Radio Frequency List 201 1 Annual Operating Plan Page 1 of 10 City of Seward �(. 2/11 A. Definition of Cooperator Response Areas 1. Response areas are defined as follows: Primary: An area which includes the Cooperator Service Area and areas of mutual aid response, within which the Cooperator agrees, within its ability, to promptly respond and act to suppress any wildland fire. Discretionary: A response outside the Response area within which the Cooperator may choose to respond, or assist the State, to suppress a wildland fire. 2. Activation Procedures for the Discretionary or Primary Response Areas The State shall contact the Fire Chief, or designee, for the availability of equipment and personnel to assist on a wildland fire incident. If the Fire department is requested it should go through the 911 trooper dispatch. Upon acceptance it becomes a binding contract between Forestry and the Cooperator. The Cooperator agrees to notify the State when responding to a wildland fire outside of their Primary Response Area at the request of another Fire Department. 3. Command of Incident There is a presumption of Unified Command, by mutual consent pursuant to this Agreement, for the management of wildland fire incidents. The first responder on- scene shall assume functional command of the incident until the arrival of the other responder, after which a Unified Command will normally be established. The Cooperator or State may, by mutual agreement, solely assume command of the incident, and shall be in command of personnel, fire apparatus and all other aspects of the fire suppression effort for the duration of the incident or until such resources are released. B. Inventory of Firefighting Resources State Resources: Kenai Kodiak Area Vehicle List — Attachment B -1 Kenai Kodiak Area Personnel Roster and Command Contacts — Attachment B -2 Cooperator Resources: Cooperator Command Contact List — Attachment A -2 Cooperator Equipment Availability and Rate List — Attachment C -2 Cooperator Personnel Roster and Pay Rates — Attachment C -3 C. Apparatus and Personnel Conditions of Hire, Payment Rates & Billing Procedures 1. General Provisions The Cooperator will request reimbursement for wildland fire response within the defined Primary and Discretionary response areas in accordance with the guidelines established in this Annual Operating Plan (AOP) and following the Cooperator Fire Protection Agreement dated 2011. The Cooperator may be reimbursed for performance under this Cooperative Fire Protection Agreement. The methods of reimbursement are: Cooperator Reimbursement, where 2011 Annual Operating Plan Page 2 of 10 City of Seward' 2/11 actual costs of personnel and apparatus are reimbursed to the Cooperator; and Direct Payment, where Cooperator personnel, as mutually agreed to by both the Cooperator and the State, are hired as Emergency Firefighters (EFF) by the State and paid directly, and apparatus is rented and paid directly to the Cooperator. In order to use the Cooperator Reimbursement method the Cooperator must meet the eligibility requirements as defined in Chapter 7 of the Alaska Incident Business Management Handbook and define the pay scale of each of their employees in their AOP. Billing addresses and contacts will be provided in the AOP. The Cooperator and State will agree upon, and establish rates of compensation, for equipment using as a guide Attachment C -1, the current "SFD Rental of Fire Apparatus Conditions of Hire 2011". Except for special circumstances as agreed upon by the Cooperator and the State, these established rates will not be exceeded. The Cooperator will submit an itemized list of available equipment including the national typing, description, and unit identifier, with respective, agreed upon, daily and hourly rates which will be included as Attachment C -2, "Cooperator Equipment Availability and Rate List." Cooperator request for reimbursement of equipment use is limited to the equipment as listed. The Cooperator will provide a list itemizing personnel positions and NWCG qualifications, agreed upon rates of pay which will be included as Attachment C -3, "Cooperator Personnel Roster and Pay Rates ". Cooperator employees may remain employees of the Cooperator, or may become employees of the State through the Emergency Firefighter program, with the attendant pay and benefits, depending on which payment method the Cooperator chooses. 2. Billing A. Cooperator Reimbursement. In order to use the Cooperator Reimbursement method. the Cooperator must meet the eligibility requirements as defined in the 2011 Cooperator Conditions of Hire and define the pay scale of each of their employees in their AOP. The Cooperator shall be responsible for payment of salary to Cooperator's personnel, including all lawful deductions, taxes, and insurance. The incident will post all equipment time on Emergency Equipment Use Invoices and personnel time on OF -288s that will be used as backup for the Cooperator invoice presented to the State for reimbursement . The Cooperator will bill the State for equipment and personnel using rates as listed in Attachment C -2, C -3. Billing will be submitted using the standard itemization and invoice forms provided by the State which will be included as Attachments C -5, C -6, and C -7. An electronic format of these forms is available from the State upon request. The Cooperator will submit a completed copy of the billing forms with an Incident Report within thirty (30) days of the fire being declared out. The Cooperator will identify whether it is a tax supported department which will be marked in the boxes at the top of attachments C -6 and C -7. A tax supported Cooperator, 201 1 Annual Operating Plan Page 3 of 10 City of Seward 2/11 when responding within the Primary Response Area, will begin its billing time 4 hours after the initial time that it is dispatched on the first day (initial attack day) of an incident. If the first day of dispatch for the Cooperator is after the first day of incident (initial attack day), billing begins at time of dispatch. Tax supported and non -tax supported Cooperators will begin their billing time from the initial time of dispatch to an incident. Cooperator agrees to bill for all resources under their operational control as listed in Attachments C -2 and C -3. This includes equipment that is available when the Cooperator is contracting services with another department. The Cooperator agrees to list their equipment, along with the other department's, on Attachment C -2. When a medic unit /ambulance is used to transport injured State personnel, the equipment rates and the transport rates, based upon the type of medical care provided, will be billed as listed in Attachment C -2. Billing time begins at the time of dispatch to the incident. For equipment billing, on the first and last shift of hire, the Cooperator will be paid at the hourly rate for every continuous hour on- shift, provided the apparatus is operable and available. For shifts between the first and last, the Cooperator will be paid at the shift rate. Time that an apparatus is inoperable and unavailable will be considered downtime and payment will not accrue except as provided in the "SFD Rental of Fire Apparatus Conditions, Types and Rates ", Attachment C -1. Billing for equipment should be commensurate with incident use. For example, engines used for personnel transport will be billed as a utility transport vehicle rather than an engine. The Cooperator may bill the State for travel time to and from an incident. The Cooperator may also bill the State for subsistence (meals, lodging) for personnel responding to an incident outside of the Primary Response Area unless otherwise provided by the State. Equipment and personnel time spent refurbishing will be billed for hours that do not exceed the reasonable and customary time for returning equipment to "in service" condition. Personnel will be paid on an hourly basis, rounded to the quarter hour, at the rates listed in Attachment C -3, based on the operational period as determined by the Incident Commander. The Incident Commander will provide written justification to the State and Cooperator when a shift exceeds 16 hours. When applicable, the Cooperator will submit a copy of the Incident Commander justification with their billing. Personnel may be on a shorter or longer shift than the equipment to which they are assigned. The Cooperator shall be responsible for payment of all expenses related to operation of the apparatus. Upon receipt of an itemized bill the State shall reimburse the Cooperator, within 30 days, for actual costs of personnel, apparatus, and other reasonable and necessary expenses as allowed that are directly related to wildland fire suppression. Rates of reimbursement for personnel shall be documented in the AOP. Cooperator apparatus 2011 Annual Operating Plan Page 4 of 10 City of Seward X01 2/1 I reimbursement rates shall not exceed the rates listed in the most recent Cooperator Conditions of Hire. Forestry will not pay administrative fees in excess of 13.5 %, nor pay for backfill positions unless required by municipal ordinance or union contract. 3. B. Direct Payment. The State shall be responsible for payment of salary directly to Cooperator's personnel hired as EFF, including all lawful deduction, taxes, and insurance. Rates of pay and levels of classification shall be documented in the AOP. The State shall be responsible for payment to the Cooperator for apparatus rental. Cooperator apparatus rental rates shall not exceed the rates listed in the most recent Cooperator Conditions of Hire. The State's direct payment of Cooperator personnel or apparatus does not effect the presumption of Unified Command necessary under this Agreement. Notice of employment as EFF, and hiring of apparatus, will be affected by completion of appropriate hiring documents, or, if the emergency situation demands, notification to the responsible State Dispatch office that Cooperator employment and /or hiring has occurred. In the latter case, official documentation will be completed as soon as practical. Emergency Firefighter (EFF) At the discretion of the Cooperator in agreement with the State, Cooperator personnel may be hired by the State as Emergency Firefighters (EFF) and will become State employees. EFF employees will be compensated at the current EFF rates found in the current State of Alaska Incident Business Management Handbook, chapter 7. The Cooperator will not bill the State for Cooperator personnel once they are released to work for the State as EFF. State EFF personnel must complete an EFF hire packet and obtain a resource order in order to be properly reimbursed for their time on an incident. State EFF personnel are responsible for verifying that their hours worked are documented by an appropriate supervisor on a Crew Time Report (CTR) keeping the yellow copy for their records. The supervisor will submit the CTR to the State Finance /Administration Unit. 4. The Cooperator will complete a Property Loss /Damage Report ( attachment C -9), explained in attachment C -1 (State of Alaska- Department of Natural Resources - Division of Forestry Cooperator Rental of Fire Apparatus Terms of Hire, Typing and Rates) section 12, documenting lost, stolen or damaged equipment and will submit it under separate cover to the State. Incomplete, or unsupported, claims will be returned to the Cooperator for further information and /or documentation. The State's liability is limited to the lesser of the actual repair costs or market value. The State is not responsible for the costs of loss or physical damage to cooperators equipment due to negligence on the part of the cooperators' personnel, for indirect damages such as loss of use or lost profits, or for "normal" wear and tear. D. Coordination of Prevention, Investigation and Public Education Efforts 201 1 Annual Operating Plan Page 5 of 10 City of Seward 2/11 1. Prevention Materials. The State will provide the Cooperator with wildland fire prevention material to the extent possible. The Cooperator will submit a request for materials to the State prior to August 15 of the current year. 2. The State and the Cooperator will coordinate as follows: a. Meet prior to the normal burn season of each year to coordinate prevention and public education programs. b. Provide wildland fire investigation services and enforcement actions mutually upon request. c. Share the State Open Burning Permit and Public Education program. 3. Extreme Fire Danger. The State will notify the Cooperator when it has been determined that extreme fire danger conditions exist. 4. Burn Closures/Bans and Burning Suspensions Both the State and the Cooperator shall have the authority to suspend or ban open burning within the Primary Response Area upon notification of the other party. All burn permit suspensions shall be routed through the State. The State may issue a Burn Closure as identified in statutes. The Cooperator may ban burning in accordance with the provisions of the Fire Code. 5. Burn Permits The Cooperator will issue burn permits within the Primary Response Area where applicable, take burn permit applications at the fire station during regular business hours, and perform site inspections when necessary. E. Operational Procedures within the Primary Response Area 1. Wildland Fire Reporting Fires will normally be reported to the Cooperator through 911 Dispatch. Emergency 911 Dispatch will initiate a response by the Cooperator and shall notify the State when the fire is in the Primary Response Area. If the fire call is received by the State, the State may initiate a response and shall dispatch the Cooperator through 911 Dispatch. 2. Wildland Fire Response and Notification Procedures The State and the Cooperator will both respond promptly under their own agency standard operating procedures for all calls in the Primary Response Area. There is a presumption of Unified Command for the management of wildland fire incidents. The first responding agency on -scene shall assume functional command of the incident until the arrival of the other responder, after which a Unified Command will normally be established. If only one agency is required on scene, the first responding agency shall have command of the incident and may release the other agency. The first agency on scene will provide an initial report to their respective dispatch office and the incoming agency resources. The Cooperator, or the State, may, by mutual agreement, solely assume command of the incident, and shall be in command of personnel, fire equipment and all other aspects of the fire suppression effort for the duration of the incident or until such resources are released. 2011 Annual Operating Plan Page 6 of 10 City of Seward tz:\ 2/11 The Cooperator, or the State Officer, may refuse to commit their personnel and resources to an unsafe situation, after notification of their concern to the Incident Commander. The Cooperator may request that the State assume command of any wildland fire within the Primary Response Area at any time. The State shall provide wildland fire suppression assistance to protect life and property without cost to the Cooperator within the Primary Response Area. 3. Wildland Fire Reports and Other Documentation Upon request, the Cooperator, or the State, shall furnish a written fire report to the other party for each wildland fire to which the other party did not respond. This report shall contain the information required by the reporting requirements of the other agency and be submitted within fifteen (15) days after the incident is out. The State will allow the submission of the ANFIRS report, via FAX to 260 -4236, to fulfill this requirement. The ANFIRS reports should include all available information, a narrative, and a GPS reading to assist the State in identification of the property on a USGS topo quad map. F. Personnel Qualification Requirements: Cooperator firefighting personnel responding to wildland fires not involving Unified Command or structures fires will have successfully completed at least the S- 130/190 National Basic Wildland Firefighter or equivalent training. All Cooperator employees and members will be NWCG certified at a minimum of Wildland Firefighter 2, which includes an annual Fireline Refresher Training and Work Capacity Test, when responding outside the Response Area. All personnel hired as EFF by Forestry must meet established NWCG physical fitness and training standards for the position hired. The State will provide wildfire training and prevention material to the Cooperator upon request. G. Training The intention of the State is all responders to wildfires are certified at a minimum of a National Wildfire Coordinating Group (NWCG) Wildland Firefighter 2. The State will make wildland fire training available to the Cooperator on an annual basis based on the priorities established in the AOP. The Cooperator may utilize any combination of the following for the training of their personnel: • on -line (1 -100, 1 -200, S -130, S -190, 1S700, 1S800) • crosswalk (provided they have an accredited training program through the Alaska Fire Standards Council) • DOF sponsored wildland fire training courses • Cooperator personnel who are operating apparatus are encouraged to complete the ENOP Task Book. 2011 Annual Operating Plan Page 7 of 10 City of Seward b 2/11 1. The State will continue to work toward a program to certify Cooperators as qualified instructors for wildland fire courses. 2. The State will offer Cooperator personnel upper level wildland fire management courses in order to have adequate resources to call upon, if the cooperator notifies the State with a list of nominees. 3. The Cooperator and the State agree that, periodically, it may conduct joint drills or exercises of response plans for either agency. The Cooperator and the State agree that they will assume workers compensation liability for their own personnel during such drills 4. The State and the Cooperator should familiarize their personnel in the operation of each other's equipment as part of annual training. 1H. Radio Frequencies: The State and Cooperator agree to exchange radio frequency lists prior to the start of the fire season each year. See Attachment D -1 "State Radio Frequency List" and D -2 "Cooperator Radio Frequency List." Cooperator Specific Subjects and Issues 1. Personnel Pay Rates and Compensation: Cooperator's paid personnel shall remain employees of the Cooperator while paid as a city employee. On -call personnel may be hired by the State as EFF in accordance with Section C of this AOP. In addition, should the Cooperator incur recall costs to replace assigned personnel, the recall costs are a reimbursable expense related to this AOP and the Cooperative Agreement. (Example: Regular pay would be normal, but hiring replacement(s) at time and 1/4 would have an elevated cost of replacement. The overtime component would be a billable cost.) 2. Station Use Agreement: Occasionally, the Cooperator may have fire station space available for free use by the State in the event that additional State resources are needed for firefighting purposes on the Kenai Peninsula. Execution of this AOP by the State and Cooperator constitutes agreement to the terms in a "Station Use Agreement" for the use of any such available space. 3. Operational Procedures: The Operational Procedures outlined in Section E of this AOP are in effect. The Cooperator and the State agree that the Cooperator may request that the State take over any wildland fire inside the Primary Response Area at any time with appropriate notice to the State. At that point, the State may elect to hire Cooperator equipment and personnel in accordance with this AOP, Section C, and paragraph 1 on page 2. 4. Cooperator Resources: The State and the Cooperator agree that it is in the best interest of both parties that billing be consolidated whenever possible. The Cooperator will attempt to incorporate reimbursable expenses of the City of Seward whenever reimbursable services, supplies or equipment are ordered by the State and supplied by the Cooperator. Examples of reimbursable expenses in this context include: GIS mapping services; city employees; food services obtained from Emergency Management; and use of city facilities and vehicles. J. Effective Date and Termination 2011 Annual Operating Plan Page 8 of 10 City of Seward ""l' 2/11 This AOP shall be effective upon execution by both parties and shall continue in effect until a new one is signed, unless terminated. Preparation, review, and /or modification of this AOP, shall normally be completed prior to March 15 of each year. In the event a new AOP is not executed on or before March 15 of the following year, this agreement shall continue in effect as written or modified until terminated or replaced by a new AOP. Either party may terminate this AOP, without cause, thirty (30) days after written notice of intent to terminate has been served. K. Compliance Failure Failure of the Cooperator or the State to insist upon the strict compliance of any of the terms in this AOP shall not constitute a waiver by either of the parties of its rights with respect to performance rendered thereafter or to insist upon full and strict compliance of the exact terms of this AOP. L. Notice All legal notices relating to this AOP, including change of address shall be mailed to the State and Cooperator at the following addresses: State: Cooperator State of Alaska, Division of Forestry City of Seward Kenai - Kodiak Area Office City Managers Office, Fire Department 42499 Sterling Hwy P.O. Box 167 Soldotna, AK 99669 Seward, Alaska 99664 (907) 260 -4200 (907) 224 -3445 fire station M. Severability In the event a provision of this AOP is found to be unenforceable or void for any reason, it shall be considered as severed from this agreement, and the remaining portions shall stand as if that portion had never been included. In the event the unenforceable or void provision is legally essential to the continuing existence of the agreement, the parties shall attempt to substitute a reasonable replacement provision. Cooperator State of Alaska Division of Forestry By: By: Mayor Area Forester Date: Date: Attest By: Clerk 201 1 Annual Operating Plan Page 9 of 10 City of Seward 2/11 Date: Fire Department By: Fire Chief Date: 2011 Annual Operating Plan Page l0 of l0 City of Seward COOPERATIVE FIRE PROTECTION AGREEMENT This Agreement is dated the day of June, 2011, and is between the City of Seward ( "Cooperator ") with an address of P.O.Box 167, Seward, Alaska 99664, and the State of Alaska, Department of Natural Resources, Division of Forestry ( "State ") with an address of _ 42499 Sterling Highway, Soldotna, Alaska 99669. 1. Recitals It is the intent of AS 41.15.010 that the State provide protection from wildland fire and other destructive agents, commensurate with the values at risk, on land that is owned privately, by the state, or by a municipality. It is also recognized by the Cooperator that an obligation exists to provide protection to life and property from wildland fires within their area of responsibility, subject to available resources, funding, and personnel. Therefore, it is to the mutual advantage of the Cooperator and the State to coordinate efforts in the prevention, detection, and suppression of wildland fires. It is in the best interests of both the Cooperator and the State that wildland fires be suppressed quickly and efficiently to minimize the destruction of natural resources and the threat to life, property, and communities. 2. Definitions Annual Operating Plan (AOP) — Negotiated annually between the Cooperator and the State to define operational details. Fire Apparatus - Fire engine, pumper, tender, tanker, brush rig, fire command vehicle, maintenance truck or such other rolling stock as is typically used by fire departments for fire suppression purposes. Fire Stores - Such items as needed to complete required minimum equipment inventory as specified in Section 12, b of the AK- DNR /DOF, Cooperator Conditions of Hire, Chapter 7 of the Alaska Incident Business Management Handbook (AIBMH). Incident Command System - An emergency response management system defined by the National Interagency Incident Management System (NIMS), and endorsed by the Governor of Alaska via Administrative Order 170. Response Area - An area which includes the Cooperator Service Area and areas of mutual aid response, within which the Cooperator agrees, within its ability, to promptly respond and act to suppress any wildland fire. Discretionary Response — A response outside the Response Area within which the Cooperator may choose to respond, or assist the State, to suppress a wildland fire. Unified Command - A method for all agencies or individuals who have jurisdictional responsibility and in some cases those who have functional responsibility at an incident, to contribute to: • determining overall objectives for the incident • selection of a strategy to achieve the objectives 2011 City of Seward Agreement • command of the incident Wildland Fire - The uncontrolled burning of grass, brush, timber and other natural vegetative material. 3. Command of Incident There is a presumption of Unified Command, by mutual consent pursuant to this Agreement, for the management of wildland fire incidents. The first responder on -scene shall assume functional command of the incident until the arrival of the other responder, after which a Unified Command will normally be established. The Cooperator or State may, by mutual agreement, solely assume command of the incident, and shall be in command of personnel, fire apparatus and all other aspects of the fire suppression effort for the duration of the incident or until such resources are released. 4. Reimbursement and Status of Employees and Apparatus The Cooperator may be reimbursed for performance under this Cooperative Fire Protection Agreement. The methods of reimbursement are: Cooperator Reimbursement, where actual costs of personnel and apparatus are reimbursed to the Cooperator; and Direct Payment, where Cooperator personnel, as mutually agreed to by both the Cooperator and the State, are hired as Emergency Firefighters (EFF) by the State and paid directly, and apparatus is rented and paid directly to the Cooperator. In order to use the Cooperator Reimbursement method the Cooperator must meet the eligibility requirements as defined in Chapter 7 of the Alaska Incident Business Management Handbook and define the pay scale of each of their employees in their AOP. Billing addresses and contacts will be provided in the AOP. In the event an AOP has not been signed by the State, rates paid for apparatus will not exceed the latest version of the Cooperator Conditions of Hire for Wildland Fire Suppression Activities. State employees remain employees of the State whether they work under Cooperator or State command. State employees are paid by the State without reimbursement from the Cooperator. Cooperator employees may remain employees of the Cooperator, or may become employees of the State through the Emergency Firefighter program, with the attendant pay and benefits, depending on which payment method the Cooperator chooses. A. Cooperator Reimbursement. In order to use the Cooperator Reimbursement method, the Cooperator must meet the eligibility requirements as defined in the Cooperator Conditions of Hire and define the pay scale of each of their employees in their AOP. The Cooperator shall be responsible for payment of salary to Cooperator's personnel, including all lawful deductions, taxes, and insurance. The incident will post all equipment time on Emergency Equipment Use Invoices and personnel time on OF -288s that will be used as backup for the Cooperator invoice presented to the State for reimbursement. The Cooperator shall be responsible for payment of all expenses related to operation of the apparatus. Upon receipt of an itemized bill the State shall reimburse the Cooperator, within 30 days, for actual costs of personnel, apparatus, and other reasonable and necessary expenses as allowed that are directly related to wildland fire suppression. Rates of 2011 City of Seward Agreement reimbursement for personnel shall be documented in the AOP. Cooperator apparatus reimbursement rates shall not exceed the rates listed in the most recent Cooperator Conditions of Hire. Forestry will not pay administrative fees in excess of 13.5 %, nor pay for backfill positions unless required by municipal ordinance or union contract. B. Direct Payment. The State shall be responsible for payment of salary directly to Cooperator's personnel hired as EFF, including all lawful deduction, taxes, and insurance. Rates of pay and levels of classification shall be documented in the AOP. The State shall be responsible for payment to the Cooperator for apparatus rental. Cooperator apparatus rental rates shall not exceed the rates listed in the most recent Cooperator Conditions of Hire. Notice of employment as EFF, and hiring of apparatus, will be affected by completion of appropriate hiring documents, or, if the emergency situation demands, notification to the responsible State Dispatch office that Cooperator employment and /or hiring has occurred. In the latter case, official documentation will be completed as soon as practical. The State's direct payment of Cooperator personnel or apparatus does not effect the presumption of Unified Command necessary under this Agreement. C. Travel, Meals, and Lodging. Travel time between the duty station, or fire station, and the incident is also reimbursable. Meals and lodging will be provided by the State for employees on assignment away from their duty station. No other travel costs will be reimbursed. 5. Worker's Compensation The Cooperator and the State are responsible for their own employee's Worker's Compensation. EFF are considered State employees. 6. Liability Insurance The State is responsible for its own liability insurance and coverage. The Cooperator is responsible for its own liability insurance and coverage, for work performed under this Agreement, and for work performed when no reimbursement or payment by the State under this Agreement is applicable. State apparatus, including FEPP, loaned to a Contractor is covered by State liability insurance and coverage, regardless of whether or not the operator is a State employee, provided the apparatus is utilized in the scope of permissive use. Permissive use is described as response to and operation on a wildland fire. Liability is not covered for non - wildland fire use. 7. Fire Equipment Use Upon assignment outside the Response Area, the State will issue to the Cooperator fire stores as needed to complete the required minimum equipment inventory as specified in Section 12 of the Cooperator Conditions of Hire. The Cooperator will maintain the fire equipment issued under this Agreement in an operable condition. Issued equipment will be returned to the issuing Forestry Office upon completion of the assignment. The State will not hold the Cooperator accountable for consumable fire supplies. If non - consumable fire stores become broken, or otherwise unusable, the Cooperator will return the damaged item, along with a statement of how the item was damaged, to the State 2011 City of Seward Agreement for repair or replacement. If an item becomes lost or damaged as a result of negligence by the Cooperator, the Cooperator will be liable for replacement. 8. Training and Prevention The intention of the State is all responders to wildfires are certified at a minimum of a National Wildfire Coordinating Group (NWCG) Wildland Firefighter 2. The State will make wildland fire training available to the Cooperator on an annual basis based on the priorities established in the AOP. The Cooperator may utilize any combination of the following for the training of their personnel: • on -line (1 -100, 1 -200, S -130, S -190, IS700, IS800) • crosswalk (provided they have an accrediting training program through the Alaska Fire Standards Council) • DOF sponsored wildland fire training courses • Cooperator personnel who are operating apparatus are encouraged to complete the ENOP Task Book. All Cooperator employees and members will be NWCG certified at a minimum of Wildland Firefighter 2, which includes an annual Fireline Refresher Training and Work Capacity Test, when responding outside the Response Area. All personnel hired as EFF by Forestry must meet established NWCG physical fitness and training standards for the position hired. The State will provide wildfire training and prevention material to the Cooperator upon request. 9. Investigation All wildland fires are subject to investigation and reporting. Cooperators unable to meet or accomplish these standards are to advise the State as soon as possible. The State may assign or order fire investigators as necessary. Protection of the origin and incendiary evidence will be the responsibility of the first, on -scene responders. 10. Annual Operating Plan As soon as practical after this Agreement is executed and annually thereafter prior to March 15 of each year, the Cooperator and the State Forester or designee shall meet to negotiate an AOP. The subject matter of the AOP shall include: A. Cooperator Conditions of Hire (Chapter 7 of the AIBMH). B. Personnel pay rates and classifications. C. Designation of Response Area on a 1:63,360 scale USGS topographic map, or equivalent. D. A current inventory of each party's local fire fighting resources and provisions for one party to notify the other when significant changes occur. E. Coordination of prevention, investigation and public education efforts. 2011 City of Seward Agreement F. Operational Procedures for Cooperator response within the Response Area covering as applicable: (i). Fire Reporting. (ii). Fire Response and Notification Procedures. (iii). Fire Reports and other document exchange procedure. (iv). Equipment Familiarization. (v). Open burning closures or suspensions. G. Provisions, conditions, and methods for Cooperator reimbursement. H. Mobilization procedures for Cooperator discretionary responses. I. Personnel qualification requirements. J. Training. K. Fire stores /equipment guidelines. L. Radio frequencies. 11. Notification The Cooperator shall immediately report all wildland fires to the State according to the procedures set forth in the AOP. The State shall immediately notify the Cooperator of any fires it responds to within the Cooperator's Service Area. 12. Parties Responsible for their own Acts Each party agrees that it will be responsible for its own acts and the results thereof and each party shall not be responsible for the acts of the other party; and each party agrees it will assume to itself risk and liability resulting from their own acts under this Agreement. 13. Permits and Laws The parties shall acquire and maintain in good standing all permits, licenses and other entitlement necessary to the performance under this Agreement. All actions taken by the parties under this Agreement shall comply with all applicable laws, statutes, ordinances, rules and regulations. 14. Non Waiver The Failure of the Cooperator or the State at any time to enforce a provision of this Agreement shall in no way constitute a waiver of the provisions, nor in any way affect the validity of this Agreement or any part thereof to enforce each and every protection hereof. 15. Review and Modifications The parties agree to review this Agreement every 5 years maximum. From time to time, the parties may agree to modifications in the scope of services to be performed under this Agreement. All modifications to the Agreement shall be incorporated by written amendments to this Agreement and approved by all signatories prior to effect. 2011 City of Seward Agreement l g 16. Fair Intent This Agreement has been jointly drafted by the parties following negotiations between them. It shall be construed according to the fair intent of the language as a whole, not for or against any party. 17. Agreement Effective Date and Termination This Agreement supersedes all other versions of this document and is effective as of the date of last signature of the parties and remains in effect indefinitely unless terminated. Either party may terminate this Agreement at any time by giving written notice to the other party of such termination and specifying the effective date, thereof, at least thirty (30) days before the effective date of such termination. For The State For the Cooperator Area Forester City Manager Date Date State Forester Fire Chief Date Date DNR Procurement Officer Date Date 2011 City of Seward Agreement Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2011 -053 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING A ONE YEAR CONTRACT FOR $533,210.00 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 WHEREAS, the City of Seward has received a proposed one year contract from the State of Alaska for the operation of the Seward community Jail; and WHEREAS, the contract amount for the City of Seward is $533,210.00, this amount has increased by $83,738.00 from the 2010 contract, to operate the Seward Community Jail in accordance with the attached contract from July 1, 2011 through June 30, 2012. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The Seward City Council hereby authorizes the city manager to enter into a one year contract for $533,210.00 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. Section 2. The City Council herby instructs the administration to continue lobbying for additional state funding of the Seward Community Jail such that the local tax payers are not asked to subsidize the cost of operating the jail for state - related offenses. 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 27`" of June 2011. ( b Council Agenda Statement Meeting Date: June 27 2011 4 of ssy' 99 To: Phillip Oates, City Manager ;a o = From: Tom Clemons Chief of Police l �A511- Agenda Item: Renewal of Jail Contract between the Department of Corrections and the City of Seward BACKGROUND & JUSTIFICATION: The City of Seward has entered into contracts with the Department of Corrections for many years and this renewal is being presented for adoption. The State of Alaska will pay the City of Seward $533,210.00 to operate the Seward community Jail in accordance with the conditions set forth in the attached contact. This contract will be in force from July 1, 2011 through June 30, 2012. INTENT: To authorize the City Manager to renew the Jail Contract between the City of Seward and the Department of Corrections. 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 or Other Plans or Policies: FISCAL NOTE: The City of Seward will receive the sum of $533,210.00 from the State of Alaska for this contract. This is an increase in the amount of $: 8.00 from the previous years. Approved by Finance Department: & u em.ial,./A . . %- ATTORNEY REVIEW: Yes No_ RECOMMENDATION: Recommend approval of Resolution 2011 ., authoring a contact between the City of Seward and the State of Alaska, Department of Corrections that provides for the City of Seward to operate the Seward Community jail, and house prisoners charged and /or sentenced under Alaska Statutes. The State will pay the City $533,210.00 to provide the service. 2 \ STANDARD AGREEMENT FORM FOR PROFESSIONAL SERVICES 1. Agency Contract Number 2. ASPS Number 3. Financial Coding 4. Agency Assigned Encumbrance 2021010 20665500- 15905- 76900011 -73076 2021010 5. Vendor Number 6. Project/Case Number 7. Alaska Business License Number COS84266 Community Jail: Seward not applicable This contract is between the State of Alaska, 8. Department of Division Corrections Institutions hereafter the State, and 9. Contractor City of Seward, Police Department hereafter the Contractor Mailing Address Street or P.O. Box City State ZIP +4 PO Box 167 410 Adams St. Seward AK 99664 10. ARTICLE 1. Appendices: Appendices referred to in thls contract and attached to it are considered part of it. ARTICLE 2. Performance of Service: 2.1 Appendix A (General Provisions), Articles 1 through 14, governs the performance of services under this contract, 2.2 Appendix -&- set &4orth- the.Jiability- ane- iasara ast- See Appendix C for indemnity and insurance related language. 2.3 Appendix C sets forth the services to be performed by the contractor, ARTICLE 3. Period of Performance: The period of performance for this contract begins JUIN 1, 2011 , and ends June 30,2012 ARTICLE 4. Considerations: 4.1 In full consideration of the contractor's performance under this contract, the State shall pay the contractor a sum not to exceed $ 533, 210.00 in accordance with the provisions of Appendix D. 4.2 Wher billing the State, the contractor shall refer to the Authority Number or the Agency Contract Number and send the billing to: 11. Department of Attention: Division of Corrections Administrative Services, Accounting Mailing Address Attention: PO Box 112000, Juneau, AK 99811 -2000 Devra Hayes (ph. 907- 465 -3478) 12. CONTRACTOR 14. CERTIFICATION: I certify that the facts herein and on supporting Name of Firm documents are correct, that this voucher constitutes a legal charge against funds and appropriations cited, that sufficient funds are City of Seward encumbered to pay this obligation, or that there is a sufficient balance Signature of Authorized Representative Date in the appropriation cited to cover this obligation. I am aware that to knowingly make or allow false entries or alterations on a public record, or knowingly destroy, mutilate, suppress, conceal, remove or Typed or Printed Name of Authorized Representative otherwise impair the verity, legibility or availability of a public record constitutes tampering with public records punishable under AS Phillip E. Oates 11.56.815 -.820. Other disciplinary action may be taken up to and Title including dismissal. City Manager (ph. 907 - 224 -3338; fax 907- 224 -8480) 13. CONTRACTING AGENCY Signature of Head of Contracting Agency or Designee Date Department/Division Date Corrections / Institutions Signature of Project Director Typed or Printed Name John Schauweker CPPB, C.P.M Typed or Printed Name of Project Director Title Bryan Brandenburg Procurement Manager Title Dept. of Corrections Director, Division of Institutions (ph. 907 - 269 - 7409) Juneau Procurement Section NOTICE: This contract has no effect until signed by the head of contracting agency or designee. 02-093 (12/03/02) SAF.DOC APPENDIX A Article I. Definitions. GENERAL PROVISIONS 1.1 In t contract and appendices, "Project Director" or "Agency Head" or "Procurement Officer" means the person who signs this contract on behalf of the Requesting Agency and includes a successor or authorized representative. 1.2 "Slate Contracting Agency" means the department for which this contract is to he performed and for which the Commissioner or Authorized Designee acted in signing this contract. Article 2. Inspections and Reports. 21 the department may inspect, in the tnanner and at reasonable times t considers appropriate, all the contractor's facilities and activities under this contract. 2.2 The contractor shall make progress and other reports in the manner and at the times the department reasonably requires. Article 1 Disputes. n Any dispute concerning a question of fact arising under this contract which is not disposed of by mutual agreement shall be decided in accordance with AS 36.30.620 -632. Article 4. Equal Employment Opportunity. 4 1 The contractor inay not discriminate against any employee or applicant for employment because of race, religion, color, national origin, or because of age. disability, sex, marital status, changes in marital status, pregnancy cr parenthood when the reasonable demands of the position(s) do not require distinction on the basis of age, disability, sex, marital status, changes in marital status, pregnancy, or parenthood. The contractor shall take affirmative action to insure that the applicants are considered for employment and that employees are treated during employment without unlawful regard to their ince, color, religion, national origin, ancestry, disability, age, sex, marital status, changes in marital status, changes in marital status, pregnancy or parenthood. This act:on must include, but need not be limited to, the following: employment, upgrading, demotion, infester, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms orcompensatiou. and selection for training including apprenticeship. The contractor shall post in conspicuous places, available to employees and applicants for employment, notices setting out the provisions of this paragraph. 4.2 The contractor shall state, in all solicitations or advertisements for employees to work on State of Alaska contract jobs, that it is nn equal opportunity employer and that all qualified applicants will receive consideration for employment without regard to race, religion, color. national origin, age, disability, sex, marital status. changes in marital status, pregnancy or parenthood, 4.3 The contractor shall send to each labor union or representative of workers with which the contractor has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' compensation representative of the contractor's commitments under this article and post copies of the notice in conspicuous places available to all employees and applicants for employment. 44 The contractor shall include the provisions of this article in every contract, and shall require the inclusion of these provisions in every contract entered into by any of its subcontractors, so that those provisions will be binding upon each subcontractor. For the purpose of including those provisions in an contract or subcontract. as required by this contract. "contractor" and "subcontractor" may be changed to reflect appropriately the name or designation of the parties of the contract or subcontract. 4.5 The contractor shall cooperate fully with State efforts which seek to deal with the problem of unlawful discrimination, and with all other State efforts to guarantee fair employment practices under this contract, and promptly comply with all requests and directions from the State Commission for tiuman Rights or any of its officers or agents relating to prevention of discriminatory employment practices. 4.6 Full cooperation in paragraph 4.5 includes, but is not limited ta, being a witness in any proceeding involving questions of unlawful discrimination if that is requested by any official or agency of the State of Alaska: permitting employees of the contractor to be witnesses or complainants in any proceeding involving questions of unlawful discrimination, if that is requested by any official or agency of the State of Alaska: participating in meetings: submitting periodic reports on the equal employment aspects of present and future employment: assisting inspection of the contractor's facilities: and promptly complying with all State directives considered essential by any office or agency of the State of Alaska to insure compliance with all federal and State laws, regulations, one policies pertaining to the prevention of discriminatory employment practices. 4.7 Failure to perform under this article constitutes a material breach almanacs. Article 5. Termination. The Project Director, by wrinen notice, may terminate this contract, in whole or in part, when i1 is in the hest interest of the State. The State is liable only for payment in accordance with the payment provisions of this contract for services rendered before the effective date of termination. Article 6. No Assignment or Delegation. The contractor may not assign or delegate this contract, or any part of it. or any right to any of the money to be paid tinder it. except with the written consent of the Project Director and the Agency Head. Article 7. No Additional Work or Material. No claim for additional services, not specifically provided in this contract, performed or furnished by the contractor, will be allowed, nor may the contractor do any work or furnish any material not covered by the contract unless the work or material is ordered in writing by the Project Director and approved by the Agency Head. Article a. Independent Contractor. The contractor and any agents and employees of the contractor act in an independent capacity and are not offiats or employees or agents of the State in the performance of this contract. Article 9. Payment of Taxes. As a condition of performance of this contract. the connacuar shall pay all federal. State, and local taxes incurred by the contractor and shall require their payment by any Suhcattractor or any other persons in the performance of this contract. Satisfactory performance of this paragraph is a condition precedent to payment by the State under this contract. Article 10, Ownership of Documents. All designs. drawings, specifications, toms, artwork, arid other work developed in the performance of this agreement are produced for hire avid remain the sole property of the State of Alaska and may be used by the State for any other purpose without additional compensation to the contractor. The contractor agrees not to assert any rights and not to establish any claim under the design patent or copyright laws. The contractor, for a period of three years after final payment under this contract. agrees to furnish and provide access to all retained materials au the request of the Project Director. Unless odterwtse directed by the Project Director. the contractor may retain copies mall the materials. Article 11. Governing Law. This contract is governed by the laws of rte Stare of Alaska. All actions concerning this contract shall be brought in the Superior Court of the State of Alaska. Article 12. Conflicting Provisions. Unless specifically amended and approved by the Department of Law the General Provisions Maas contract supersede any provisions in other appendices. The contractor specifically acknowledges and agrees that provisions in any form contracts it appends hereto that purport to (1) waive the State ofAlaska's sdvereikn immunity. (2) impose indemnification obligations on the State of Alaska that are not conditioned on legislative appropriation, or (3) seek to limit liability of the contractor for acts of contractor negligence, are expressly' superseded by this contract and are void. Article 13. Officials Not to Benefit. Contractor must comply with all applicable federal or State laws regulating ethical conduct of public officers and employees. Article 14. Covenant Against Contingent Fees. The contractor warrants that no person or agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee except employees or agencies maintained by the contractor for the purpose or securing business. For the breach or violation of this warranty, the State may terminate this contract without liability or in its discretion deduce from the contract price or consideration the full amount of the commission, percentage, brokerage or contingent fee. BACK 92.093 (12/29/08) ALASKA DEPARTMENT OF CORRECTJONS CONTRACT FOR COMMUNITY JAILS SERVICES July i,2D1Y through June 3Q,3812 Appendix C General Terms Parties The parties to this contract are the Alaska Department of Corrections, and the Borough/City of Smward, herein referred to as the "Borough/City". 1. Services Provide short-term community jail confinement of persons held under State law. This is a contract for the Borough/City to operate a jail facility and hold prisoners in accordance with this contract and The Standards for Jail Operations adopted by the Governor's Task Force on Community Jails (November 18, 1994 edition), hereafter referred to as "The Standards". The Standards and the final report of the Governors Task Force are attached as Appendix E to this contract. As adopted by the Governor's Task Force, and as explained in the Document, Chapter 13, sec. 13.05 of Appendix E, these standards were not, and are not, intended to be used in any legal proceeding to establish a "duty of care", or evidence of a legal duty to any person or entity. Rather, these standards were and are intended: a. as a statement of profossionat goals to be achieved; b. to promote recognition of needed improvements, both as to facilities and operations; c. to promote efficiency; and d. to ericourage professionatism in the operations of Ataska jaits. As used in this contract, "community jail administrator" has the meaning given in Chapter 13 of The Standards. As used in this contract, "prisoner" has the meaning given in AS 33.30.901(12), and specifically excludes persons detairred under authority of AS 47. This contract aliows the Borough/City to hold persons detained under AS 47 in its jail facility, however the Department is authonzed to, and will nmt, compensate the Borough/City for any direct ar iadirect costs related as AS 47 detainees, nctud'rg medical or transportation costs. 2. Sole Agreement This contract is the sole agreement between the parties relating to jail services. There are noother ugreemenis, expressed or implied. 3. Effective Date/Termination/Amendments This contract is effective Juty 1, 2011 and continues in force through June 30, 2012 except that it may be terminated by either party upon ninety (90) days written notice from the terminating party. Contract amendments can be incorporated through appendices or attachments mutually agreed upon and signed by both parties. 2021010 3 Seward Community Jail � |[ 4. Responsibitities of the parties General ResponsthUities of the Borough/Cty The Borough/City ShaU a. Operate a facility for the care and confinement of prisoners in accordance with this contract and with goals set out in The Standards, including any additions or deletions to The Standards by the Commissioner of Corrections foliowing notice to all communityjail admiriistrators and an opportunity to comment. b. Comply with the U.G. Civil Rights Act of 1964, as amended (P.L. 88-35-42 USC secs. 2000e-2 and 2000e-3) and Federal regulations implementing the act in the hiring and treatment of its employees and will not subject any prisoner to discrimination on the grounds of race, creed, color, religion, national origin, sex. c. Permit reasoriabte visitation for prisoners as set out in The Standards, A record or log of all prisoner visitors will be kept indicating dghe, time and identity of each visitor. d. Protect prisoner property by taking proper precautions and providing the necessary policies and procedures to protect the property from toss or destruction. e. Not accept a prisoner into the facility under this contract if the person is unconscious or in immediate need of medical attention, and shall not be entitled to reimbursement for immediate medicat services provided to such a person. The Borough/City shalt provide necessary medical care for prisoners accepted into the facility under this contract, and shall be entitled to reimbursement by the Department for the cost of such care, per Section CO of this contract. f. lmmediately notify the Department of Corrections, the nearest post of the Alaska State Trooperm, and any police agencies in the general vicinity of the jail facility ifo prisoner escapes or leaves the premises of the facility without authority. The Borough/City shati make every reasonabte effort to return the prisoner to the facility without cost to the Department of Corrections, as long as there are reasonable grounds to believe the prisoner is within the BoroughXCity|inm|ts. g. Adopt and enforce rutes concerning smoking by prisoners and staff consistent with State statutes and nagu|ations, keeping in mind the health and welfare of all prisoners and staif personnel. h. Maintain prisoner records showing the prisoner's time served, the date and time the prisoner was booked in, the date and time of changes to custody, notations about the prisoner's institutional adjustment, and records of medical and dental treatment. These prisoner records must be in a prisoner's file when they are transferred from the community jail facility to another state correctionat facility. |mnnediate|y, but, in no event more than 24 hours following receipt of notice, report to the Department of Corrections all claims concerning the jail facility that could foreseeabty affect the legal liabitity of either party to this contract and cooperate with the Department of Corrections in the defense and/or settlement of the claim. j. Purchase and maintain in force at all times during the performance of services under this agreement the poticies of insurance listed in the contract. Where specific limits are shown, it is understood that they shall be the minimum acceptable limits. If the Borough's/City's policy contains higher limits, the State shall be entitled to coverage 2021010 4 Seward Community Jail �� �� l�~ to the extent of such higher Iimts, k. Provde current certificates ot insurance to the Department of Corrections prior to the performance of services under this contract and shall provide for a 30-day prior notice of cancellation, non-renewal or material change to any insurance policy. material breach and grounds for termination of the Borough/City's services. Provide and maintain Workers Compensation Insurance as required by AS23.3O.045 for all employees engaged in work under this contract. The Borough/City shafl be responsible for insuring that any subcontractor who directty or indirectly provides services under this contract will maintain Worker's Compensation Insurance. Coverage must include all states in which employees are engaging iri work arid must include employer's Iiability protection of not Iess than $1OO.00O.00per person and $1OD.00O.O0 per occurrence. m. Provide and maintain comprehensive general liability insurance, with a combined single limit per occurrence of not less than $1,000,000.00 covering activities associated with or arising out of this contract, to include jail keeper's legal liability coverage. The State shaU be added as an additional insured under such policies. The Borough/City shall be solely responsible for the payment of claims or losses to the extont they fati within the deducttble amount of such insurance. This insurance shall be primary to any other insurance or self insurance carried by the State. n. Provide and maintain comprehensive automobile liability insurance, covering all owned, hired and non-owned vehicles used during the provision of services under this contract with coverage limits not less than $100,000.00 per person, $300,000.00 per occurrence bodity injury jury and $50,000.00 property damage. o. The community jail must use an accounting system that records all expenditures on an ongoing basis and must provide a record of these expenditures to the oversight agency on a quarterly basis in a format prescribed by the oversight agency, p. The cornmunityjail must prepare and present an annual budget request that reflects the necessary resources required for faciJity operations. Budget requests wHI be prepared in the manner and detail prescribed by the oversight agency. The annual budget request will include a staffing plan showing in detail staff assignments and the number of fuJi and part-time positioris. q. Annuai budget request for fiscai year 2012 is due to the Department's state communityjail administratoron October 15, 2011. r. Annual budget request for fiscal year 2013 is due to the state community jail administrator on October 1, 2011 for inclusion in the annual Department of Corrections' fiscal year 2013 operating appropriations request. s. By October 1, 2011, the cornmunity jail administrator must provide their request for the fiscal year 2013 capitai project ject request. Faiture to meet this deadline may result in no capital project requestforfiscai year 2013. t. Quarterly financial reports are due to the state community jail administrator on the following dates: July — September 2011 —quadedy and year-to-date financial statement due on October 31, 2011 2021010 5 Seward Community Jail (co �co October — December 2011 — quarterly and year -to -date financial statement due on January 31, 2012 January — March 2012 — quarterly and year -to -date financial statement due on April 30, 2012 April — June 2012 — quarterly financial and year -to -date financial statement due on July 31, 2012 u. Provide a monthly accounting of prisoner statistics by the 15` day of the month following the monthly period covered on forms provided by the Department of Corrections. The forms shall include specific information on each prisoner housed during the reporting period to include the prisoner's name, the number of man -days, the charge or reason for incarceration, the dates of incarceration, the arresting agency and other information as requested on the forms. "Man -day" indicates a prisoner was confined for more than four (4) hours in one twenty -four hour calendar day. If a prisoner had been confined for less than or equal to (4) hours in one calendar day, the accounting shall indicate one -half man -day. v. Not operate furlough or release programs for pre - sentenced prisoners held, unless ordered by a court. The Borough /City shall not permit a furlough or release for any sentenced prisoners without the consent of the Department of Corrections, w. Community Jails accessing the Agency's Alaska Corrections Offender Management System ( ACOMS) will require all jail personnel using the ACOMS System to undergo a DOC security check. The Community Jail Administrator will submit the following information for each person accessing the ACOMS System for security review by DOC: (1) Full name (2) Residence address (3) Telephone (4) Date of birth (5) Valid drivers license and state of issue, or other photo identification (6) Social Security number The Jail Administrator, with assistance from the Community Jail Coordinator, will develop Policy and Procedures for monitoring jail staff to ensure system security, confidentiality and the use of the ACOMS System only for Community Jail business. The Jail Administrator will immediately notify the Community Jail Coordinator if jail staff with access to the ACOMS System leave their employment. Community Jails will be responsible for ongoing telecommunications costs such as line charges, connection fees and internet service provider fees, etc. 5. General Responsibilities of the Department of Corrections The Department of Corrections shall: 2021010 6 Seward Community Jail � `l a. Reimburse the Borough /City for necessary medical care under section C6 of this Contract. b. Not be responsible for the management of local jail facility prisoner population. It is the policy of the Department of Corrections to detain and confine only prisoners from the normally serviced region of the respective facilities. However, in the case of an emergency or for necessary population or security management purposes, prisoners may be transferred from other areas of the State. Conversely, for the same purposes, prisoners may be transferred from the respective facilities to other areas of the State. c. Through the Division of Risk Management, provide excess legal liability coverage from claims directly resulting from the Borough/City's services under this contract, that are covered by the primary jail keeper's legal liability policy carried by the Borough /City, excluding any damages awarded as a result of intentional or malicious misconduct, criminal conduct, or outrageous conduct on the part of the Borough /City or its employees or agents. The state will provide coverage of $4,000,000.00 excess of $1,000,000.00 per occurrence and annual aggregate as an excess insurer. All conditions of the primary jail keeper's legal liability policy are considered a part of this excess liability protection. As an additional condition precedent to this excess liability coverage, the Borough /City agrees to immediately report to the State all claims that could foreseeably penetrate to this excess policy level and cooperate with the State in the defense and /or settlement of the claim. d. Be permitted to inspect, at all reasonable times, any facility used by the Borough /City to house prisoners that are confined, in order to determine if that facility is complying with The Standards and with this agreement. e. Provide on -going technical assistance and training for community jails requesting access to ACOMS. The Department of Corrections will conduct security checks, with information provided by the Jail Administrator, for all jail staff requesting access to ACOMS. All related telecommunications charges (such as telephone company lines fees or tolls and internet service provider fees, or special charges for initial line installation) will be the responsibility of the community jail. 6. Medical and Dental Care and Reimbursement The Borough /City shall: a. Provide necessary medical care to prisoners accepted into the community jail facility under this contract. Prisoners who require medical attention are to be provided treatment as soon as possible, taking into consideration the nature of the illness or injury. If medical care is provided outside of the jail facility, the community jail administrator shall provide necessary security as required by paragraph 7a of this contract. As used in this contract, "necessary medical care" has the meaning given in Chapter 13 of The Standards. If requirements of this definition are otherwise met, the following are included within the term "necessary medical care" and subject to reimbursement: (1) psychological or psychiatric care; and (2) dental care to: control bleeding; 2021010 7 Seward Community Jail relieve pain; � eliminate acute infection; x/ prevent pulp decay and imminent lose of teeth through operative procedures; and v. treat i juhaahm teeth or repair supporting dental structures, caused by accident or i 'ury. b Maintain cortrol of and dispense medicines to prisoners in compliance with The Standards and directions specified by a physician or other qualified health care provider, and take reasonable steps to guard against misuse or overdose of medicines by prisoners. c. Adopt emergency medical procedures and make available telephone numbers for medical, psychiatric, or other health services, so that staff will have ready access to such information. d. Obtain approval from the Department before incurring Ilability for medical care which reimbursement is sought, except in the case of emergency care that must be provided to the prisoner before approval from the Department of Corrections can be obtained. The Borough/City shall make a reasonable effort to obtain approval from the Department of Corrections and shail promptly, but in no event later than the next working business day. notify the Department of Corrections of any emergency for which medical care was provided before such approval could be obtained. Approval from the Department of Corrections wiH not be unreasonably withheld. To obtain approval Borough/City staff should contact the Department of Corrections Central Office during normal working hours Monday through Friday 8:OOonn to 4:3Opnn at (907) 283-7300. after hours, weekends and holidays contact the Anchorage Correctional Complex Medical Unit at(QU7) 269'4233. e. Be entitled to reimbursement from the Department of Corrections for expenses of necessary medical care provided under paragraph 6a and approved under paragraph 6d. In applying for reimbursement, the Borough/Cit must the procedure set out in paragraph 6f. The Borough/City will not ' entitled to reimbursement for the hiring of emergency guards or other medically related security costs, or for medical care for persons (1) held under the authority of AS 47, (2) accepted into the facility while unconscious or in immediate need of medical attention, ( receiving medical services for elective, cosmetic or other medical services that are not necessary medical care, or (4) not approved by the Department under paragraph 7d. Medical services provided to prisoners who have been properly accepted into the Borough/City jail facilities under this contract shall not, however, be challenged by the Department merely because they were rendered immediately or shortly after the prisoner was accepted. f. Request reimbursement by submitting to the Department of Corrections a properly certified accounting containing: 2021010 8 Seward Community Jail �� �� (1) a copy of the medical bill with the prisoner's name and a description of the services rendered, (2) a copy of the monthly booking form showing the prisoner's date and time of booking, and (3) a copy of the medical payment request form. The community jail administrator will make reasonable effort and take appropriate steps to assure that the Department of Corrections is billed only for necessary and required medical services beyond the payment limits of the prisoner or any insurance carrier or other third -party payer. 7. Transfers and Transportation of Prisoners The parties agree that: a. The Borough /City shall provide transportation and supervision of prisoners within local boundaries when the prisoners are outside of the jail facility, other than pursuant to court- ordered release. Supervision must be adequate to prevent escapes, prevent inappropriate contact with others, prevent possession of contraband and provide security for the prisoner and the public. b. The Borough /City shall immediately notify the Department of Corrections to request that a prisoner be transferred from the facility to one outside of local boundaries because; (1) a court has ordered the transportation; (2) the prisoner has been incarcerated in the facility for 30 consecutive days, unless a court has ordered that the prisoner remain in the facility or the prisoner has signed a written waiver requesting to remain in the facility; or (3) the community jail administrator believes a transfer is necessary for security or population management reasons. c. The Borough /City shall continue to hold prisoners, notwithstanding the existence of grounds for a transfer, until the Department of Corrections arranges transportation for the prisoner. d. The Department of Corrections (1) may contact the Department of Public Safety to make arrangements for the transportation of prisoners requested under paragraphs 7b(1) or (2), or may request the community jail administrator to directly contact the Department of Public Safety to make transportation arrangements; and (2) will contact the Department of Public Safety to make arrangements for the transportation of prisoners requested under paragraph 7b(3) when the Department finds that it can reasonably accommodate the request and the community jail administrator clearly demonstrates to the satisfaction of the Department that the transportation is necessary and that it will not interfere with the prisoner's attendance at legal proceedings or create any undue hardship on the prisoner. The Department will not unreasonably deny a request for transfer under this subsection. 2021010 9 Seward Community Jail xl6 e. The Borough/City shall, when the prisoner leaves the facility, furnish the transporting officer with the prisoner's file described in paragraph 4h of this agreement. 2021010 10 Seward Community Jail ALASKA DEPARTMENT OF CORRECTIONS CONTRACT FOR COMMUNITY JAIL SERVICES July 1, 2011 through June 30, 2012 Appendix D Payment Provisions 1. The total contract amount for the Borough /City of Seward is $533,210.00 for the period from July 1, 2011 through June 30, 2012 and represents the total payment due, 14 Beds 2. The Department of Corrections will pay the Borough /City one quarter of the amount specified above, Appendix D paragraph 1, on the first day of each quarter of the fiscal year. 3. It is specifically agreed by the parties that the Department of Corrections is not funded for and will not provide annual in- service training as set out in Section 10.01 of The Standards, unless funding is provided by the Alaska Legislature or the Borough/City. 4. The Borough /City shall be prohibited from utilizing funds received under this contract for any purpose other than operation of community jail facility. Any funds received by the Borough /City under this contract that are utilized for purposes other than those authorized by this contract shall be reimbursed to the State and deposited to the general fund. G:\Contracts \FY12\Community Jaiis\fy12 contracts\Seward -n.doc 2021010 11 Seward Community Jail Appendix List: A General Provisions B Indemnity ondInsurance See Appendix C for indemnity and insurance related language General Terms D Payment Provisions • D2 breakdown of funding E State of Alaska, Community Jails Program: Standards for JaU Operation As produced and adopted by the Governor's Task Force on Community Jails November 1994 ' 2021010 12 Seward Community Jail C�~� �_� ALASKA DEPARTMENT OF CORRECTtONS CONTRACT FOR COMMUNITY JAIL SERVICES July 1, 2011 through June 30, 2012 Bo/ough/Cityof Seward Appendix D2 The following is a breakdown of the total contract amount for FY2012 for the indicated taci|ity. The contract requires that the funthng be used only for the operation of the jail any ny other purpose. |ta|soregu/reuonaccounUngtospecifioUneitomnmwit ~inth��ai/hacUitybud0e�� These are the areas intended to be funded by the total contract mrnour` for each �sca|year, unless otherwise amended: ' Pensonma/ Position Annual Salary 96 12 Month Cost Jail Supervisor 5547GOO 100 ' � 55.47600 CJ{} 44 100 44.47500 CJO 47.053.00 100 47.05300 CJO 44,475.00 100 44.4750n CJO 3G.O13.00� 1 O0 38,O13OO 4��82OO 100 � � CJO ` � 45/482.00 272.Q54�U _ � 0 -------- Non-Personnel /tom / 12 Month Cost Utilities 6.486.74 Telephone 945.06 Insurance 2.361.95 . Vehicle 2.400.00 Publications 180.97 Supplies 8.600.00 Food 25.360.00 ,Unallocated 8.000.00 � 54,314.72 Summary ummary 12 Month Contract Amount Personnel Costs 272854.00 Non-Personnel 54.314.72 Costs - 1 Subtotal 327.258.72` Admin Overhead 44.195.95 Total (FY2005) $ 371.464.67' Note: +10% for FY2006 37140.47 F'( 2006 Contract Total $ 408,611.14 + 1096 increase for FYO7 40.860.86 FY2007 Contract Total: $448.472.00 FY2012 Increase: $83.738.00 FY2012 Contract Total: $533.210'00 2021010 — -- 13 Seward Community Jail ~\ pL Sponsored by: Mayor /Council CITY OF SEWARD, ALASKA RESOLUTION 2011 -054 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ACCEPTING THE RESIGNATION OF CITY MANAGER PHILLIP OATES AND SETTING THE TERMS FOR HIS DEPARTURE FROM CITY EMPLOYMENT WHEREAS, the City of Seward and Philip Oates entered into an employment agreement effective the 1 S` day of May, 2007; and WHEREAS, City Manager Phillip Oates has tendered his resignation to the city council on June 13, 2011; and WHEREAS, Oates has stated that his last day of employment with the City of Seward will be September 30, 2011; and WHEREAS, the city council will accept Phillip Oates' wishes and allow for termination on the above date. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The employment agreement between the City of Seward and City Manager Phillip Oates shall terminate on September 30, 2011. Section 2. Upon conveyance to the City of all city files and property in his possession, Oates shall be paid all sums due him for time worked and any accumulated vacation leave as required by city code, Charter and the employment agreement. Section 3. This resolution shall take affect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 27 day of June, 2011. City of Seward, Alaska y o f Sett. City of Seward 1963 1965 2005 C7 4 ; 9 0 P.O. Box 167 Seward, Alaska 99664 -0167 All- America City q Main Office (907) 224 -4050 hietd Facsimile (907) 224 -4038 t June 13, 2011, City Council JUN 1 2011 F �r Y� City of Seward Os°H @sue ; a �° 410 Adams Street CITY C K Seward, AK 99664 Dear members of the Council, Please accept this letter as formal notification that I will resign from my position on September 30, 2011. I am giving more than the two months of notice required in my contract to allow sufficient time for a thorough and productive search for my replacement. It has been an honor to serve as your city manager. I am proud of our accomplishments over the past four years. Sincerely, Phillip . Oates City Manager EMPLOYMENT AGREEMENT City Manager Services for Phillip Oates This agreement approved by the City Council of the City of Seward, effective the 1 day of May, 2007, is between the City of Seward, Alaska, whose address is P.O. Box 167, Seward, Alaska 99664 ( "City ") and Phillip Oates, whose address is PSC 1280, Box R, APO AE 09880 ( "Oates "). The City agrees to employ Oates as City Manager on an at- will basis. This agreement shall continue for three (3) years until May 1, 2010 unless sooner terminated as provided below. 1. Oates agrees to devote full time on behalf of the City and not engage in any other business. 2. Oates shall be paid at the rate of $7,500.00 per month. The City Council agrees to review Oates annually prior to adoption of the City's fiscal budget. In the first year after his six (6) month review, Oates shall be entitled to a three (3) percent increase in base salary upon a favorable review by the Council members as entered on the standard City Manager Evaluation Form. 3. Oates shall accrue annual leave and holidays in accordance with Chapters 3.45 and 3.50 of the Seward City Code. Oates shall be covered by the standard City health insurance and retirement plans. He shall receive credit for annual leave accrued at the rate of 13.5 hours per month. 4. A City vehicle is provided for Oates' use while traveling on City business. Alternatively, for those periods Oates uses his personal vehicle while traveling on City business, Oates shall be reimbursed by the City at the same rate as all other employees of the City. Reimbursement is subject to standard City policy procedures and Code Section 3.60.025. 5. Oates shall receive $5,000.00 from the City for relocation and moving expenses. Since he is required to relocate within the city limits, reasonable moving expenses for that move will be allowed. 6. Because of the peculiar nature of the City Manager position, it is agreed that the City's business can only succeed if the City Manager and the City Council enjoy a working relationship based on mutual respect, trust and positive attitudes. It may, therefore, be impossible to quantify "poor performance" or "just cause" for termination given these complexities which often involve personality factors as opposed to legal or contractual factors. It is therefore the intent of both the City and Oates, to provide for termination by either the City or Oates without resort to any determination of cause or any necessary explanation by the City. Accordingly, this agreement may be terminated as follows: (a) By Oates for any reason or no stated reason upon giving sixty (60) days written notice to the City. Upon receipt of notice, the City may immediately 91 terminate the relationship or require Oates to continue for a period not to exceed sixty (60) days at his regular rate of pay from the date of receipt of the notice. The City shall make the election promptly and within twenty -five (25) days of the receipt of notice, and the City's failure to make an election shall be deemed an election to terminate the relationship thirty (30) days from the date of receipt of the notice. If the relationship is so terminated, the City shall not be responsible for any severance or termination pay. Oates shall be entitled to his annual leave balance to the date of termination. (b) By the City for any reason or no stated reason upon giving written notice to Oates the City may at its option, terminate the relationship immediately. The City shall pay Oates two (2) months severance pay for each year of service upon his termination under this paragraph, up to a maximum of three (3) months severance pay, prorated from the date of this agreement. 7. This agreement is the entire agreement and wherever approval of the City is required it is understood that such approval will be by the City Council of the City of Seward. This agreement supersedes any previous agreement and may be modified only in writing signed by each of the parties. This agreement will be interpreted and enforced in Alaska in accordance with the laws of the State of Alaska and is subject to all applicable Charter and ordinance provisions of the City of Seward; provided that no provisions of Title 3 of the Seward City Code shall apply except those provisions expressly identifying the city manager and except for the following enumerated provisions: 3.15.085 longevity, 3.15.090 retirement, 3.15.095 insurance and medical benefits, 3.45 annual leave, 3.50 holidays, 3.60 special provisions, except as set forth in Paragraph 5 above, 3.70 drug and alcohol policy, 3.75 sexual harassment policy, and 3.80 workers' compensation. DATED this 27 day of March, 2007. CITY OF SEWARD, ALASKA 1:01/vidt 0d7gEt- Vanta Shafer, May r Phillip Oates Jea' Lewis, City der ...vmeo 3 S Nt ryR•'1 (City Seal) S'a IL /r. 4 %. q ° F 0 91 31 kid M f Lol'..... : • 0 d a pa a •.a �yM L y ; l�uC }ti is nt yY Ste• Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2011 -055 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, ADOPTING THE CLIMATIC DESIGN CRITERIA FOR THE ELECTRIC UTILITY OF ALL DISTRIBUTION UTILITY POLES SOUTH OF NASH ROAD FOR THE PURPOSE OF CONSTRUCTION AND ATTACHMENT WHEREAS, the climatic design criteria have a direct impact on the safety and reliability of the electrical system; and WHEREAS, the reliability of the electrical system has a direct impact on the health and welfare of the community of Seward; and WHEREAS, the recommended engineered climatic design criteria from Dryden and LaRue engineering firm is an extreme wind load of 100mph with the associated NESC 250C factors for an extreme wind and the NESC 250B heavy loading; and WHEREAS, this climatic design criteria shall dictate the design, construction and attachments for all distribution utility poles in the downtown Seward area South of Nash Road; and WHEREAS, the NESC states in section 1.012.0 "For all particulars not specified in these rules, construction and maintenance should be done in accordance with accepted good practice for the given local conditions known at the time by those responsible for the construction or maintenance of the communication or supply lines and equipment "; and WHEREAS, the known standards for the two closest utilities to Seward (Homer Electric Association and Chugach Electric Association) have more stringent attachment conditions than the NESC 250B heavy conditions for some distribution poles; and WHEREAS, all communication carriers joint use agreements in Article III.a. state, "Minimum requirements for jointly used poles covered by this agreement together with all attachments on such poles shall be at all times placed and maintained in conformity with the National Electric Safety Code, current edition, except where modified by authority of the State of Alaska and such other specifications as may be mutually agreed upon and approved in writing: except where the lawful requirements of the public authorities may be more stringent, in which case the latter shall govern"; and WHEREAS, the current city standard established by the electric department for all distribution poles south of Nash Road is set at NESC heavy (40 mph with ` /z" ice), 70 mph with %z" of ice at 30 degrees Fahrenheit, and 115 mph with no ice. CITY OF SEWARD, ALASKA RESOLUTION 2011 -055 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City of Seward adopts an extreme wind load of 100mph with the associated NESC 250C factors and the NESC 250B heavy loading. Section 2. This resolution shall take affect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 27`" day of June, 2011. THE CITY OF SEWARD, ALASKA Willard E. Dunham, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney City Clerk (City Seal) Agenda Statement Meeting Date: Monday, June 27, 2011 t jof sE, 9 To: City Council u� , Through: Phillip Oates, City Manager q P From: John Foutz, Electric Utility Manager Agenda Item: To Enact the Climatic Design Criteria for Construction and Attachment on the Electric Utility Poles in Downtown Seward, South of Nash Road. BACKGROUND & JUSTIFICATION: The Climatic Design Criteria are determined by the City of Seward for construction of the electric utility system to keep the people, businesses and community of Seward safe and energized during the projected life of the individual poles. These Criteria are based on sound engineering practices, local weather conditions, and conservative assumptions. The wind loading criteria are meant to reduce the risk to life, limb and property in the community of Seward while still allowing safe and practical additions of conductor (wire). The wind loading criteria are the basic design standards the electric department shall use to construct the system that supplies power to the businesses and residents of Seward. These criteria are also used for additional attachments by, not only the electric department, but communication companies. Dryden and LaRue recommend the climatic design criteria to be extreme wind load of 100mph with the associated NESC 250C factors and the NESC 250B heavy loading for the downtown electric utility system. The electric department recommends the city council adopt this as the standard for the downtown Seward, south of Nash Road, for construction and attachment purposes. The electric department is of the opinion that adopting anything less than the recommended engineering minimum would make it more likely that the City of Seward will suffer failure of one or more utility poles during periods of extreme wind conditions. INTENT: To adopt the recommended extreme wind load of 100mph with the associated NESC 250C factors and the NESC 250B heavy loading of all distribution poles south of Nash Road for the purpose of construction and attachment. 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 or Other Plans or Policies. FISCAL NOTE: This fiscal note relies on calculations performed by Dryden & LaRue as presented to Council in a recent work session, utilizing actual wind load calculations from a subset of existing City poles. The overall cost of replacing poles will depend in large part on the specific wind load criteria adopted by the City, as well as on the final engineering calculations for the 34 poles in question. For example, utilizing a wind loading standard of 115 mph results in the necessity to replace twenty percent (or eight poles) of the 34 poles which GCI is requesting to attach to. The estimated cost of replacing eight poles is approximately $160,000. This cost would be borne by the electric utility. Utilizing a wind loading standard of 100 mph results in the necessity to replace ten percent of the poles (or four of the 34 poles), at an estimated cost of $80,000. These figures are estimated, and the actual number ► ON of poles required to be replaced will be determined once final engineering calculations are available, indicating the specific poles to be replaced. It is not possible to estimate the financial risk associated with poles which might pass initial wind load requirements but subsequently fail after adding attachments. We would expect to bill GCI to recover the costs associated with pole failures subsequent to the placement of attachments. Approved by Finance Department: ATTORNEY REVIEW: Yes X No It should be noted that Seward City Code, Section 14.15.610(a) provides that the City could be liable for an interruption of electric utility service if any "injury, loss or damage results from the sole negligence of the city." RECOMMENDATION: Approve Council Resolution 2011 -055, adopting the climatic design criteria for the electric utility of all distribution utility poles south of Nash Road for the purpose of construction and attachment, as recommended by Dryden & LaRue. ,d'3\ I nr4 ,t June 21, 2011 John Foutz Electric Utility Manager City of Seward Reference: City of Seward Design Criteria for Distribution in Seward Per your request, we have reviewed the Design Criteria for the distribution system in Seward and developed some suggested changes. The latest revision of the City Design Criteria is dated 11/19/09 and is the starting point for our review. Those loads are: NESC Heavy (40mph wind on '/" ice), extreme wind (115mph), and extreme wind and ice (70mph on'/" ice). Also, a meeting with GCI on 6/2/11 revealed a desire to reconsider NESC loadings. A sample of existing poles, provided by your staff, allowed us to calculate the moment capacity and utilization of nine poles which are part of the GCI requested area for additional cables. Our analysis showed that some of the existing poles exceeded their moment capacity with the existing wires and the City Design Criteria. It is our understanding the existing poles have been capable of supporting the climatic conditions without failures. Since these poles represent a long period of time, at least 50 years, it may be the City Design Criteria is conservative. This is not to say the present criterion is wrong, only that the calculations do not appear to support this. It is our recommendation that the City consider a revised Design Criteria for the distribution system south of Nash Road. The National Electrical Safety Code (NESC) provides the basis for climatological loadings and sets a minimum requirement. Therefore, we recommend the City adopt the NESC heavy loading district along with the associated factors as a minimum. In addition we believe a wind load slightly in excess of the NESC Heavy is also appropriate. There have been significant wind storms in Seward's history and they are expected to repeat. The NESC uses wind data prepared by the American Society of Civil Engineers (ASCE) for their suggested wind speeds. The ASCE wind maps from 2005, for the Gulf Coast area of Alaska, show 130mph gusts. This data is intended to be used for buildings and structures and NESC requires wind speeds from this document be used for tall structures. Since the distribution poles are not considered tall structures by the NESC and our calculations of the sample existing poles do not support this extreme wind, we believe a lesser wind speed is appropriate. The boundaries of the proposed wind speed that we believe are reasonable are that it be less than a speed that would break existing poles (no history over 50 years of major damage) and give consideration to the history of high winds in Seward. Therefore, we recommend the City 3305 Arctic Blvd., Suite 201 • Phone (907) 349 -6653 • Fax (907) 522 -2534 • Email: office @drydenlarue.com City of Seward June 21, 2011 Design Criteria for Distribution in Seward Page 2 consider an extreme wind load of 100mph with the associated NESC 250C factors for an extreme wind and the NESC 250B heavy loading. We appreciate the work of your staff that allowed us to perform this review and please let me know if you need any additional information. Dryden & LaRue, Inc. Delbert S. LaRue, P.E. ��1 e. No joint pole tenant may permit a third party user to have joint usage of a City pole, irrespective of any agreement between the joint pole tenant and the third party. ARTICLE III JOINT USE SPECIFICATIONS a. Minimum requirements for jointly used poles covered by this Agreement together with all attachments on such poles shall be at all times placed and maintained in conformity with the National Electrical Safety Code, current edition, except where modified by authority of the State of Alaska and such other specifications as may be mutually agreed upon and approved in writing: except where the lawful requirements of public authorities may be more stringent, in which case the latter shall govern. Any jointly used poles including their attachments which are not in conformity with this article, shall be brought into conformity at the time of their normal replacement, rearrangement, rebuilding, or reconstruction, and whenever practicable, except if existing condition presents a hazard to life or property, or is likely to cause failure of continuous electrical service. Such hazardous conditions will be corrected at the expense of the responsible party within thirty (30) days of written notice by either party to the other. If the Manager of the Seward electric utility determines an unsafe condition exists that requires immediate repair to protect life and property or maintain electrical service, he will notify the responsible party by telephone or radio. Should that party not be able to respond in a timely manner emergency repairs will be accomplished by the City and charged to the responsible party. b. On joint -use poles, each party shall be responsible for placing, transferring, and rearranging its own attachments, including any tree trimmings or cutting incidental thereto, and obtaining the necessary right for such, and all work shall be done promptly upon request and in such a manner as not to interfere with the service of the other party or parties. 250 Part 2: Safety Rules for Overhead Lines 250C Section 25. Loadings for Grades B and C 250. General loading requirements and maps A. General 1. It is necessary to assume the wind and ice loads that may occur on a line. Three weather load- ings are specified in Rules 250B, 250C, and 250D. Where all three rules apply, the required loading shall be the one that has the greatest effect. 2. Where construction or maintenance loads exceed those imposed by Rule 250A1, the assumed loadings shall be increased accordingly. When temporary loads, such as lifting of equipment, stringing operations, or a worker on a structure or its component, are to be imposed on a structure or component, the strength of the structure or component should be taken into account or other provisions should be made to limit the likelihood of adverse effects of structure or component failure. NOTE: Other provisions could include cranes that can support the equipment loads, guard poles and spot- ters with radios, and stringing equipment capable of promptly halting stringing operations. 3. It is recognized that loadings actually experienced in certain areas in each of the loading dis- tricts may be greater, or in some cases, may be less than those specified in these rules. In the absence of a detailed loading analysis, using the same respective statistical methodologies used to develop the maps in Rule 250C or 250D, no reduction in the loadings specified therein shall be made without the approval of the administrative authority. 4. The structural capacity provided by meeting the loading and strength requirements of Sections 25 and 26 provides sufficient capability to resist earthquake ground motions. B. Combined ice and wind district loading Three general degrees of district loading due to weather conditions are recognized and are designated as heavy, medium, and light loading. Figure 250 -1 shows the districts where these loadings apply. NOTE: The localities are classified in the different loading districts according to the relative simultaneous prevalence of the wind velocity and thickness of ice that accumulates on wires. Light loading is for places where little, if any, ice accumulates on wires. Table 250 -1 shows the radial thickness of ice and the wind pressures to be used in calculating loads. Ice is assumed to weigh 913 kg/m (57 lb /ft C. Extreme wind loading If no portion of a structure or its supported facilities exceeds 18 m (60 ft) above ground or water level, the provisions of this rule are not required, except as specified in Rule 261A1c, 261A2e, or 261A3d. Where a structure or its supported facilities exceeds 18 m (60 ft) above ground or water level the structure and its supported facilities shall be designed to withstand the extreme wind load associated with the Basic Wind Speed, as specified by Figure 250 -2. The wind pressures calculated shall be applied to the entire structure and supported facilities without ice. The following formula shall be used to calculate wind load. Load in newtons = 0.613 • (V X8 ) 2 • k • G • I • Cf • A(m Load in pounds = 0.00256 • (Vmin,) • k • GRF • I • Cf A(ft Copyright © 2006 IEEE. All rights reserved. 177 bb w 243 Part 2: Safety Rules for Overhead Lines 243C5 243. Grades of construction for line supports A. Structures The grade of construction shall be that required for the highest grade of conductors supported except as modified by the following: 1. The grade of construction of jointly used structures, or structures used only by communication lines, need not be increased merely because the communication wires carried on such structures cross over trolley- contact conductors of 0 to 750 V to ground. IP 2. Structures carrying supply service drops of 0 to 750 V to ground shall have a grade of construe - tion not less than that required for supply line conductors of the same voltage. 3. Where the communication lines cross over supply conductors and a railroad in the same span and Grade B is required by Rule 241C3b for the communication conductors, due to the pres- ence of railroad tracks, the grade of the structures shall be B. 4. The grade of construction required for a conflicting structure (first circuit) shall be determined Id from the requirements of Rule 242 for crossings. The conflicting structure's conductors (first circuit) shall be assumed to cross the other circuit's conductors (second circuit) for the pur- poses of determining the grade of construction required for the conflicting structure. 10 NOTE: The resulting structure grade requirement could result in a higher grade of construction for the structure than for the conductors carried thereon. B. Crossarms and support arms The grade of construction shall be that required for the highest grade of conductors carried by the arm concerned except as modified by the following: ft 1. The grade of construction of arms carrying only communication conductors need not be increased merely because the conductors cross over trolley- contact conductors of 0 to 750 V to ground. 2. Arms carrying supply service drops of 0 to 750 V to ground shall have a grade of construction 1 not less than that required for supply line conductors of the same voltage. 3. Where communication lines cross over supply conductors and a railroad in the same span and flO Grade B is required by Rule 241C3b for the communication conductors due to the presence of railroad tracks, the grade of the arm shall be B. C. Pins, armless construction brackets, insulators, and conductor fastenings • The grade of construction for pins, armless construction brackets, insulators, and conductor fastenings shall be that required for the conductor concerned except as modified by the following: 1. The grade of construction need not be increased merely because the supported conductors cross over trolley contact conductors of 0 to 750 V to ground. 1 2. Supply service drops of 0 to 750 V to ground require only the same grade of construction as supply line conductors of the same voltage. 3. When Grade B construction is required by Rule 241C3b for the communication conductors due to the presence of railroad tracks, Grade B construction shall be used when supporting commu- nication lines that cross over supply conductors and a railroad in the same span. 4. When communication conductors are required to meet Grade B or C, only the requirements for mechanical strength for these grades are required. 5. Insulators for use on open conductor supply lines shall meet the requirements of Section 27 for all grades of construction. 1 1 176 Copyright © 2006 IEEE. All rights reserved. 01 ` T -253 -2 Part 2: Safety Rules for Overhead Lines T -253 -2 Table 253-2--Alternate Toad factors for wood and reinforced (not prestressed) concrete structures o o to be used with the strength factors of Table 261 -1 B The alternate method, including alternate Toad factors of Table 253 -2 and strength factors of Table 261 -1 B, shall not be used after July 31, 2010 I Load Factors ' Grade B Grade C When At When At Installed Replacement ©® Installed Replacement O 03 I Rule 250B loads Vertical loads ® 2.20 1.50 2.20 1.50 Transverse loads Wind (at crossings) 4.00 2.67 2.67 1.33 Wind (elsewhere) 4.00 2.67 2.00 1.33 Wire tension 2.00 1.33 1.33 1.00 Longitudinal loads In general 1.33 1.00 No requirement No requirement At deadends 2.00 © 1.3 m 1.33 1.00 I Rule 250C loads 1.33 1.00 1.00 0.87 I Rule 250D loads 1.33 1.00 1.33 1.00 ()Includes poles. OO Where a wood structure is built for temporary service, the load factors at replacement may be used provided the des - ignated fiber stress is not exceeded during the life of the structure. Where a reinforced concrete (not prestressed) structure is built for temporary service, the load factors at replacement may be used. ()When structure strength deteriorates to the level of the loads multiplied by the Toad factors required at replacement, the structure shall be replaced or rehabilitated. If a structure or component is replaced, it shall meet the "when installed" load factors at replacement. Rehabilitated portions of structures shall have load factors at the time of rehabilitation greater than of those required "at replacement." ®Where vertical loads significantly reduce the stress in a structural member, a vertical load factor of 1.0 should be used for the design of such member. Such members shall be designed for the worst -case loading. @Metal portions of a structure may be designed using the load factors in Table 253 -1. For unguyed wood poles supporting communication conductors and cables only, this factor may be reduced to 1.33. For unguyed wood poles supporting communication conductors and cables only, this factor may be reduced to 1.0. I ®For wind velocities above 100 mph (except Alaska) a factor of 0.75 may be used. 198 Copyright © 2006 IEEE. All rights reserved. � 0Z T -253 -1 Part 2: Safety Rules for Overhead Lines T -253 -1 I Table 253 -1 —Load factors for structures, m crossarms, support hardware, guys, foundations, and anchors to be used with the strength factors of Table 261 -1A Load Factors Grade C Grade B - At crossings © Elsewhere I Rule 250B loads Vertical loads () 1.50 1.90 © 1.90 I Transverse loads Wind 2.50 2.20 1.75 Wire tension 1.65 1.30 1.30 Longitudinal loads In general 1.10 No require ent No requirement At deadends 1.65 1.30 1.30 I Rule 250C loads 1.00 0.87 0.87 I Rule 250D loads 1.00 1.00 1.00 ()Includes pole. ®For guys and anchors associated with structures supporting communication conductors and cables only, this factor may be reduced to 1.33. I ®Where vertical loads significantly reduce the stress in a structure member, a vertical load factor of 1.0 should be used for the design of such member. Such member shall be designed for the worst case loading. ®For metal or prestressed concrete, portions of structures, crossarms, guys, foundations, and anchors, use a value of 1.10. ®For metal prestressed concrete, or fiber- reinforced polymer portions of structures and crossarms, guys, foundations, and anchors, use a value of 1.50. ©This applies only where a line crosses another supply or communication line (see Rule 241C and Table 242 -1). ()For wind velocities above 100 mph (except Alaska), a factor of 0.75 may be used. Copyright © 2006 IEEE. All rights reserved. 197 \0I Seward Pole Line Loading Criteria 11/19/09 - NESC Heavy loading applies to all areas (0 °, %" ice 4 # /ft wind) - Analysis for Communication attachments will use 75% of pole ultimate fiber stress Other Loadings - Single Primary Circuit Distribution Lines South of Mile 8 to Nash Rd. & Seward Hwy • 120 MPH (37 #) Wind, No Ice • 40MPH (4 #) Wind, 1" Ice, 30° • 70MPH (12.5 #) Wind, 1/2 Ice, 30° - Single Primary Circuit Distribution Lines South of Nash Rd. & Seward Hwy • 115 MPH (34 #) Wind, No Ice • 70MPH (12.5 #) Wind, 1/2 Ice, 30° - Single Primary Circuit Distribution Lines North of Mile 8 Seward Hwy • 110 MPH (31 #) Wind, No Ice • 40MPH (4 #) Wind, 11/2" Ice, 20° • 70MPH (12.5 #) Wind, 1/2 Ice, 30° - Double Primary Circuit Distribution Lines (is grade B construction except Poles south of Monroe are grade C construction) • 130 MPH (43.3 #) Wind. No Ice • 40 MPH (4 #) Wind, 1" Ice • 0 MPH Wind, 1" Ice - Transmission Lines — Nash Road and South of Nash Road • 130 MPH (43.3 #) Wind No Ice • 40 MPH (4 #) Wind, 1" Ice • 0 MPH Wind, 2.1" Ice - Transmission Lines — North of Nash Road to Mile 8 Seward Highway • 125 MPH (40 #) Wind. No Ice • 40 MPH (4 #) Wind, 1" Ice • 0 MPH Wind, 2.1" Ice - Transmission Lines —Mile 8 Seward Highway to Daves Creek Substation • 110 MPH (31 #) Wind. No Ice • 40 MPH Wind, 1" Ice • 0 MPH Wind, 2.1" Ice CITY OF SEWARD DISTRIBUTION DESIGN LOADINGS Representative Pole Capacity Usage Comparison: Potential Extreme Wind Load Criteria Pole NESC Heavy Extreme Wind Extreme Wind Extreme Wind Extreme Wind 40mph wind & Pole # Size /Class 1/2" ice 100 mph wind, bare 105mph wind, bare 110 mph wind, bare 115 mph wind, bare C7 -25 45/2 36.8% 40.1% 42.6% 45.2% 48.0% C6-22 50/2? 59.9% 79.8% 87.2% 95.0% 103.1% C6 -18 40/2 32.3% 39.2% 43.2% 47.3% 51.7% C5-42 40/3 53.4% 60.6% 65.2% 70.2% 75.4% C5 -8 50/2? 34.7% 52.2% 57.1% 62.1% 67.5% C5 -6 50/2 30.9% 50.8% 55.5% 60.4% 65.7% D5 -5 50/2? 30.8% 49.6% 54.2% 59.2% 64.4% D4 -19 40/2 54.7% 57.2% 61.3% 65.6% 70.1% C5 -18 45/4 73.6% 105.1% 110.6% 116.6% 123.1% City of Seward Alaska City Council Minutes June 13, 2011 Volume 38, Page CALL TO ORDER The June 13, 2011 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Willard E. Dunham. OPENING CEREMONY Police Chief Clemons led the pledge of allegiance to the flag. Mayor Dunham called for a moment of silence for B 1. Noll, former Mayor of Seward. Noll passed away earlier today. ROLL CALL There were present: Willard E. Dunham, presiding; and Marianna Keil Jean Bardarson Vanta Shafer Bob Valdatta Ristine Casagranda Tom Smith comprising a quorum of the Council; and Phillip Oates, City Manager Cheryl Brooking, City Attorney Johanna Kinney, City Clerk Absent — None CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC. HEARING Mary Hart spoke on behalf of GCI and said that the recent Fiber Optic proposal was in alignment with the national standards set for the State of Alaska, and that Dryden and Larue "s recommendations mirrored those same standards. She suggested the additional safety requirements were added by the City of Seward. She said if GCI did not receive the permits required from the City of Seward by the end of June, GCI would have to rededicate their construction resources elsewhere. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson /Shafer) Approval of Agenda and Consent Agenda Councilmember Valdatta removed Resolution 2011 -043 from the consent agenda. Councilmember Keil added a discussion item under Other New Business for the GCI Fiber Optic Cable Project. f'; City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page Motion Passed Unanimous The clerk read the following approved consent agenda items: The May 23, 2011 City Council Regular Meeting Minutes Were Approved and The May 23, 2011 City Council Special Meeting Minutes Were Approved. Council appointed Ryan Reynolds and John French to the Historic Preservation Commission with terms expiring 2014. Council appointed Tim McDonald to the City of Seward seat on the Cook Inlet Aquaculture Association Board of Directors. Council scheduled a joint work session with Planning and Zoning Commission to meet with the Alaska Railroad regarding a land exchange for Monday, July 25, 2011 at 5:30 p.m. Resolution 2011 -042, Adopting The Port And Commerce Advisory Board (PACAB) Priorities From May 2011 To April 2012. Resolution 2011 -044, 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). Resolution 2011 -045, Authorizing The Discharge Of Fireworks By The Chamber Of Commerce During The 2011 Independence Day Celebration. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Proclamations and Awards A welcome proclamation was read for The Alaska Academy of Family Physicians. A proclamation was read honoring Katy Turnbull as a recipient of the BP's Teachers of Excellence award and named the Seward's 2011 Teacher of the Year. Borough Assembly Report. Assembly Representative Sue McClure stated they had two big meetings in the last month. The May 17, 2011 meeting passed an Ordinance raising the Borough Mayor's salary to $99,000 by a 5 -3 vote. At last Tuesday's meeting the budget passed, including the non - departmental items such as the Kenai Peninsula Tourism and Marketing Council and the Small Business development Center got funded. There was an attempt to get more money to the school district, but it failed by a 7 -2 vote, with McClure voting on the failing side. Administration requested borough landfills and transfer stations be closed on Sundays during the winter months (October 1 — April 30) to save $128,000 per year. It was going to be a trial run this year. The mil rate for property City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page tax was set as the same — 4.50 mils. The road construction project out in Camelot was done by Metco. The next meeting was June 21, 2011 and then July 5, 2011. Coming up for public hearing was an ordinance to increase borough's sales tax from 3.0 to 3.1. If the ordinance passed, it would go on the October 2011 ballot. Another possible ballot item was an increase in term limits for Assembly Members from 2 terms to 3 terms. There would be a Reapportionment Committee meeting on Wednesday, June 15, 2011 at 7:00 p.m. at the K.M. Rae Building. In response to Valdatta, McClure stated she did not have any information on the status of Seward's redistricting issue. McClure added that she had done some additional research since the last Council meeting and had received some information in response to Mayor Dunham's previous inquiry regarding state funding for AVTEC students. McClure noted that the University of Alaska received funds through a mandate, and that she had met with Dr. Atwater, Superintendent of Schools, and they discussed possible alternatives for obtaining scholarships for AVTEC students. City Manager's Report, City Manager Phillip Oates stated that effective September 30, 2011 he would be resigning as City Manager; he read h resignation letter to the Council and public. He thanked Sue McClure for her assistance with getting the Small Business Development Center position funded and he was ready to move forward with seeking a small business advisor in Seward; he stated that there were already individuals who expressed interest in the position. On June 10, 2011 the Fire Department dispatched to the railroad dock to assist a person who had fallen and injured; the patient was taken to the hospital for care. Regarding the camera surveillance issue, Oates said he was willing to provide the locations of ll cameras to Councilmembers, with the consent of the Mayor, if they wanted to ,sAee them ". Finance Department was preparing the comprehensive annual financial report and would distribute it to Council by June 20, 2011 in preparation for the Audit work session scheduled for June 27, 2011. The North Forest Acres Levee road project was nearing completion; the project was on time and on budget. The City received a request from the Providence Hospital for a cash infusion to the health care system as a result of the reduction in reimbursement from Medicaid, as well as implementation costs associated with their new electronic medical records system; the City had earmarked $500,000 in the 2011 budget, but that fell $250,000 short of the hospital's request and the City would have to make up the difference from General Funds. Community Development received appraisal information on the city parcels identified for possible sale by the Ad Hoc Land Committee; the information would be provided to Council so they could provide direction to the Committee. The Lowell Creek Bridge Repair Project had been completed on schedule. The removal of the underground storage tank at the new Library Museum site was completed. Dunham asked if the Department of Natural Resources would possibly funnel some funding into improving the Lowell Point Road; Oates added that the Commissioner of the Department of Transportation suggested that he and Mayor Dunham approach the Federal Parks System. Dunham stated he and Oates met with the State Parks System today who said they would support the City's initiative to improve the access to the State Park. Administration's plan was to work toward making this a legislative priority for 2012 with the hope that it would be appropriated to the Parks \1Lk City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page Department and they would give the money to the City and Borough to make the necessary road repairs. City Attorney's Report, Cheryl Brooking stated the city's firm continued to work on various leases for the City, she had responded to department head legal questions, and she had devoted time to the City's pending litigation issues. Regarding the litigation involving the Resurrection Bay Conservation Alliance (RBCA), Brooking stated she had requested rehearing. Regarding the Gillespie Tract B litigation, the City had possession of the property and was continuing with the project, although the issue of valuation was still to be decided by a special master. A hearing date had not been set; both parties were engaging in discovery. Mayoral Report, Mayor Willard E. Dunham's he did not have a written report to provide. He apologized to the people from Lowell Point and their Community Union for not being able to attend the community and business meeting last week and he appreciated being invited to it. Mayor Dunham had the opportunity to meet the British Ambassador last week in Anchorage; Dunham suggested the Ambassador visit Seward soon. Both he and Vice Mayor Bardarson had been invited to attend a reception and dinner for foreign ambassadors in Anchorage on June 21, 2011 by the U.S. Protocol Office; the foreign visitors would also be in Seward for a Kenai Fjords charter on June 24, 2011. Lastly, he had a request from the U.S. Mayor's Climate Protection Agreement asking if we would be interested in participating in a program they were sponsoring; Councilmember Shafer noted she had participated in this program in the past and it had been focused on the impact of climate change; she attended encouraged Mayor Dunham to participate. Other Reports, Announcements and Presentations A report was given by Ron Long, President, Chamber of Commerce. Chamber President Long stated they were on the haunt for an Executive Director once again, since they decided not to renew the contract for Chuck Bowman, the recent past director's, probationary period; the Chamber had brought on staff to help get through the heavy summer season. The Chamber completed their comprehensive financial audit and were found to be in full compliance with minor clean -up details. The Chamber had informational booths at many sports and recreation shows in the past several months, including Fairbanks and Anchorage. They had met every cruise ship upon their arrival; they were preparing to meet the upcoming Navy ship; they were working with AVTEC to promote new maritime courses, specifically those focused on ocean ranger programs. The Chamber provided support to British film crews in town that were filming extreme fish fights, had a new booth designed for the fish expos and other travelling shows, expanded their radio and television coverage for the Silver Salmon Derby, and were working on the smolt program to find the best revitalization for fish. They were implementing a consistent print advertising campaign in the print media with national and foreign media. Finally, the halibut derby was well underway, ticket sales were up and fish were cooperating; and Long said the Chamber hoped to beat last year's revenue. Councilmember Shafer hoped the smolt included king salmon in addition to silvers. Mayor Dunham said the Bob and Mark Show from an Anchorage radio station said they would like to push the halibut tournament on Anchorage radio if someone would contact them from the Chamber. City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page PUBLIC HEARINGS Resolution 2011 -041, Authorizing The City Manager To Enter Into A Lease Agreement With The United States Of America For Lot 4 -A2, Block 2, Marina Subdivision, Seward Small Boat Harbor For The Purpose Of Relocating The United States Coast Guard (USCG) Shore Support Building. Motion (Bardarson /Shafer) Approve Resolution 2011 -041 Oates gave a brief synopsis of the resolution and recommended approval. The railroad was going to end their lease to the coast guard, which would eliminate the coast guard in Seward and thus create a need to find a new location for the coast guard in Seward,'approving this lease would result in securing a coast guard presence in Seward. Notice of the public hearing being posted and publishedas required by law was noted and the public hearing was opened. No one appeared to address the Council and the public hearing was closed In response to Councilmember Casagranda, Mayor Dunham replied that all the land in the harbor was owned by the city except an, 800 -foot portion owned by the Alaska Railroad. Councilmember Smith said the AlaskiRailroad had been eyeballing the Coast Guard to leave for years, but had no real plan. Oates stated the upcoming work session on July 25, 2011 should address this topic. Vice Mayor Bardarson noted a correction that should be made in the lease to state that payments should be made on a quarterly basis, not monthly. Motion (Bardarson /Keil) Amend Resolution 2011 -041, changing the lease language on Exhibit B to read "quarterly" payments instead of "monthly" payments. Motion Passed Unanimous Consent Main Motion Passed Unanimous UNFINISHED BUSINESS Resolution 2011 -036, Amending The Surveillance Camera Policy. Motion (Bardarson/Keil) Approve Resolution 2011 -036 (from the May 9, 2011 meeting) Oates gave a brief history of the surveillance camera policy. Councilmember Shafer's intent was to require the policy to have council approval of all locations, require no cameras be placed on Fourth Avenue, south of the boat harbor, and to have the camera at the Fire Department placed inside the building. Oates stated this change would potentially challenge the cost of the grant and he read the Finance Director's fiscal review. All cameras were currently up and running. Some members of Its Cay of Seward, Alaska City Council Minutes June l3, 201l Volume 38, Page council had a chance to see the placement locations of the cameras. Oates' stated administration did not support this resolution. City Attorney Brooking stated that she had been asked to not alter any of the proposed language changes of the resolution, and instead gave a lengthy attorney review in the agenda statement. One risk she noted was the likelihood the state could demand the repayment of the $350,000 grant. A second risk she saw was in breaking the confidentiality of the State's Vulnerability Assessment Report. There was a specific act that required this information to remain confidential and those laws were the basis of the city receiving this grant. The city could be in violation of the privacy of this information and penalties could involve fines and imprisonment for revealing information. She stated that it was difficult to quantify the exact level of risk. Oates added that the list of cameras was not a public document, but he was willing to share that information with council at a recess during this meeting at any time Brooking further added the city had installed the cameras and were bound by state and federal privacy requirements and these cameras were not currently located in any areas where they were not legally allowed to be, nor were they violating anyone's privacy rights. Councilmember Valdatta said he would follow the recommendation of the City Manager; he was concerned that the city could face potential lawsuits. Shafer said some of the places where cameras were located were very clearly noticeable already; she noted the attorney said they "may" be liable to pay back the money for the grant. Shafer stated she was bothered by the work session that reassured the public where the cameras were not going to be She felt she owed it to the public to look into this and this was, in her opinion, the epitome of wasteful government spending. Police Chief Tom Clemons said they could not use the cameras for anything but what the grant was for, and Homeland Security clearly stated to him that he could not make public the Vulnerability Assessment Report. Councilmember Casagranda asked if the city could add to the system. Clemons said he only had one additional camera, and it would either have to be placed on critical infrastructure or have council approval. Keil asked about the signs posted to notify the public of each camera's location. Chief Clemons said as soon as the signs went up when the cameras were working, Keil thought that divulged the location. Recessed at 8:25 p.m. to view camera locations in City Manager's office. City Clerk Johanna Kinney reminded council their discussions were to be held in the public, and to not discuss anything until the meeting resumed. Meeting resumed at 8:35 p.m. Councilmember Casagranda recalled what Keil had said in a past meeting that before the city accepted a grant they should weigh their decision against whether they would be willing to pay for City ofSeward, Alaska City Council Minutes June 13, 2011 Volume 38, Page the project themselves if they there was no grant; she added that she didn't feel comfortable with the technology of these cameras for the sake of her children. Councilmember Keil found the agenda statement conflicting, since erecting signs was acceptable but they couldn't share the actual locations. Councilmember Shafer said the public did not want cameras on Fourth Avenue and the camera on the Fire Department building should be moved inside the building. She questioned why the citizens should be watched. Councilmember Smith asked Chief Clemons to clarify the use of a camera for covert surveillance; Clemons said as long it was in plain view no warrant was necessary. Cameras could not be used to look into houses without a warrant, but pla n'view was allowable by state and federal standards under the Plain View Doctrine. Motion To Amend (Keil /Bardarson) Amend Resolution 2011 -036, by reinstating the strike -out language in Section 11: "City Council approval is required of all surveillance camera locations by resolution in areas other than the critical infrastructure identified in the latest Vulnerability Assessment for the City of Seward from Alaska Homeland Security." Motion Passed As Amended Yes: Casagranda, Shafer, Bardarson, Keil No Valdatta, Smith, Dunham Deputy Chief Eddie Athey said moving the cameras inside was not recommended; in order for the camera to do its job, it would have to capture outside the facility. Motion To Postpone (Casagranda /Keil) Postpone Resolution 2011 -036 to the June 27, 2011 meeting. Motion To Postpone Passsed Unanimous NEW BUSINESS Resolution 2011 -043, Authorizing The City Manager To Reclassify The Utility Office Assistant From A Range 6 -8 To A Range 11 -13 And Change The Title To Electric Executive Assistant. Motion (Bardarson /Keil) Approve Resolution 2011 -043 Oates stated when the Electric Department Office Assistant retired earlier this year, the department wanted to reclassify the position to expand the duties and needed knowledge for the 1�� City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page department. Historically, the Electric Department's biggest criticism was in providing timely public service. Electric Utility Manager John Foutz thanked Kathy Shipe who was the Office Assistant with the city for over 20 years for her time. This position was originally a part-time position and the range was challenging to find a quality person. The upgraded position was also required because the Electric Department needed a higher degree of computer skills and a background in bookkeeping, billing and digitizing records. Motion Passed Unanimous Resolution 2011 -046, Authorizing The City Manager To Enter Into A Change Order For An Amount Not -To- Exceed $47,600 Funded By The Cruise Ship Head Tax To Complete The Interior Slab Work Necessary To Relocate The USCG Structure. Motion (Shafer /Bardarson) Approve Resolution 2011 -046 Oates gave reasoning behind the proposed change order and recommended council approval. Councilmember Casagranda didn't understand why the city should help pay the government to move their own building; Oates said he believed the USCG would leave if they didn't have a building to operate from., and the Coast Guard was spending a considerable amount of money to move their building already. It was beneficial for both parties. Mayor Dunham asked about the road thatwas torn up during the process to restore access to the boat launch and if that was contemplated within this funding. Oates said the intention was to make all repairs. Vice Mayor Bardarson asked why the slab wasn't included in the initial project plan; Oates said this was a complex project and couldn't answer as to why the USCG didn't include it Motion Passed Unanimous Resolution 2011-047, Amending Resolution 2010 -129 Which Authorizes The Issuance And Sale Of General Obligation Bonds To Pay Costs Of Library /Museum Capital Improvements. Motion (Keil/Shafer) Approve Resolution 2011 -047 Oates said the original resolution was set at $3,730,000 and was before the council tonight at $3,700,000 to give council flexibility to amend to a lower amount. He deferred to a funding update handout to phase the project because at this point the city did not have enough money to pay for the project. The general obligation bond approval had not yet occurred, a referendum petition application for the funding source of the alcohol and tobacco sales tax was recently approved by the clerk and that ordinance could potentially be repealed by a vote of the people. The impact this would have on I, City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page the project was the final completion date would not be until February 15, 2013. Oates didn't see a prudent way around phasing the project and noted the proposed phasing: • Phase 1: Three million dollars, leaving about $400,000 in the bank for flexibility; council should give consideration in keeping the bond amount at the $3,700,000 level. • Phase 2: Commit the remaining $4,400,000 of the project, which consisted of the $3,700,000 bond and various state grants, but left other expenses. Assistant City Manager /Community Development Director Michelle Weston said the The Rasmuson Grant would not be allowed to be spent until January 2012 and the NEH Grant would be given to the city in "chunks" over time Both grants were reimbursable, which meant the city would have to spend the money and then apply for reimbursement. Rise Alaska Project Manager Kent Crandall and Contractor Scott Ivany of PCL came under the budgeted amount and the architects supported the bid. Oates thanked both of them for their work to put this project back together. Oates responded to Vice Mayor Bardarson's inquiry as to why the cost went up by $200,000 to $7,400,000 by explaining that it was due to the size expansion of the full basement; he further clarified that Phase 1 would include ordering the steel plus the concrete foundation would be installed and heated throughout the winter. Oates said the Finance Department was currently working on the bond application and would have it ready for the bond bank's next meeting in July 2011. Keil said she wasn't sure that, it made sense to start the project until next spring; Oates countered that this was a viable way to accomplish the project. Keil was concerned that phasing the project would add to the negative criticism from the public. City Attorney Brooking clarified that the bond bank was meeting at the end of July and the bonds could be issued as early as the last week of August. The rules were suspended by' unanimous consent to allow Kent Crandall from Rise Alaska and Scott Iverly from PCL to speak to the original proposal. Considering the current situation, a shutdown for the winter was cons to allow the funding to catch up with the project. Iverly said they would have to evaluate the plan to allow for the best savings, and to consider other options and scenarios to get the best use of the money. Crandall added that the best option was to allow them to move ahead. In response to Keil's inquiry, Oates stated that Kris Erchinger would present the application to the bond bank and that Brooking was the city's bond attorney. Keil said it was the public's right to go out to petition a referendum; she suggested that the city prepare budget cuts if the referendum was voted in and overturned the ordinance. Mayor Dunham expressed his frustration that the bond application process was not moving forward quicker and with more determination. Vice Mayor Bardarson was concerned about starting the project before the bond was secured. Motion Passed Yes: Smith, Casagranda, Keil, Valdatta, Shafer, Dunham No: Bardarson Io City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page Resolution 2011 -048, Designating $100,000 Of General Fund Undesignated Fund Balance To Cover Costs Associated With The Kenai Peninsula Borough's Implementation Of The City Of Seward's Increase In Sales Tax On Alcohol Beverages And Tobacco Products. Motion (Shafer /Keil) Approve Resolution 2011 -048 Oates defined the intent of this resolution. Since council approved the Ordinance 2011-003 on May 23, 2011 to raise the sales tax rate on alcohol and tobacco products, the Borough would collect this tax and place a burden on the Borough's software and programming capabilities. This resolution was to identify an amount for the accommodation, and if council would appropriate it, the official amount would go back to council for final approval,Te funds would come from the general fund. Motion To Postpone (Keil /Bardarson) Postpone Resolution 2011 -048 to the June 27, 2011 meeting. Motion Passed Unanimous Resolution 2011 -049, Appropriating Funds In An Amount Up To $1,500,000 For Purposes Of Paying Costs Associated With The Proposed Seward Community Library Museum. Motion (Smith / Bardarson) Approve Resolution 2011 -049 Oates said this would take funds from the general fund reserves. Motion to Postpone (Dunham/Valdatta) Postpone Resolution 2011 -049 to the June 27, 2011 meeting. OTHER NEW BUSINESS Council discussion on putting the Library Museum Project out to bid as a request for proposal. After this evening's discussions, council decided this discussion item was not needed. Council discussion on the GCI Fiber Optic Project. Oates gave an update on the project; it was not hearsay from Dryden and Larue saying they were in an awkward position because they were in business with GCI, but they would not change the limits on the restrictions on the poles. Dryden and Larue were the city's engineers in regards to the city's electric poles; the department was in the process of collecting pole data to develop recommended wind load criteria. They anticipated the results no later than the next meeting. Electric Utility Manager John Foutz added that his staff was currently working on pole data to send to Dryden and Larue. They did not give an indication of when this would be accomplished, but were making it their highest priority. Oates restated administration's goal was not to limit fiber optic capabilities in Seward, but to increase fiber optic capabilities in Seward without jeopardizing the city's power supply. The City wanted to move ahead, and they were doing everything they could do 1?■k City of Seward, Alaska City Council Minutes June 13, 2011 Volume 38, Page to get this information to council as soon as possible. Valdatta wanted to know why they city was not pursuing putting the cables underground; Oates said it was a function of cost to the customers, although it was an option. Keil didn't understand why they couldn't just use NESC standards and why they were paying people to re- evaluate this over and over again. NESC said the standards allowed areas like Seward to allow for more restrictions to allow for safety. Shafer wanted to know if this higher standard was approved by council; Oates said the standards state to use the NESC standards, as modified by local conditions. Shafer felt policy was being made without the council. Looking at the council handbook, she noted it stated council made the policies of the city, Oates contested the city was consistent with the policies established by the council that approved this agreement. Bardarson didn't want to be left out of this opportunity because our city's standards were too stringent. Casagranda said the city already had fiber optics. Keil said the bigger issue was the policy making of this process. Smith said they need to realize and know the strength of the city's poles; some were below standard and he felt they needed to know more about the engineering. Councilmember Keil suggested council hold a special meeting to discuss with administration; council agreed. INFORMATIONAL ITEMS AND REPORTS (No action required) COUNCILS' COMMENTS CITIZENS' COMMENTS Mary Hart from GCI said the poles had been thoroughly engineered contracted through a third -party private firm. The information provided to the city listed specific instances about the poles. The Electric Department said GCI had not provided information requested, specifically pole criteria based on the higher standards that the city was requiring; GCI did not provide that information because GCI felt that request was outside of their contract with the city. GCI was currently building to the NESC standards; safety factors were built -in for sustained wind speeds up to 98 miles per hour with one quarter inch of ice. She said Seward got wind gusts, but not sustainable winds of those speeds. She thanked council for their time. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS Councilmember Shafer said noted for the community Dr. Hermiston passed away this past weekend, a former doctor in Seward for five years; there would be a ceremony for her in July. City Manager Oates said it would be important to receive guidance from council on the search process for the next city manager. l Ciry of Seward, Alaska CityCouncil Minuses Jun 1 2011 Volume 38, P age ADJOURNMENT The meeting was adjourned at 10:28 p.m. Johanna Kinney, CMC Willard E. Dunham City Clerk Mayor (City Seal) Johanna Kinney From: Cindy Ecklund < ecklundc @gmail.com> Sent: Tuesday, June 14, 2011 3:30 PM To: Johanna Kinney Subject: Kenai Peninsula Borough Planning Commission Honorable Mayor Dunham and Honorable Council Members, It has been my pleasure to serve the City of Seward as a City Planning and Zoning Commissioner and the City's representative to the Kenai Peninsula Borough (KPB) Planning Commission. I was reappointed to the City's commission this spring. My KPB commission term expires on July 31, 2011. I would be happy to continue to serve the City of Seward on the KPB commission for another term. Thank you for your consideration, Cindy L. Ecklund PO Box 1837 806 2nd Ave. Seward, AK 99664 ecklundc @gmail.com 907 - 362 -2276 mobile NOTE: This message was trained as non -spam. If this is wrong, please correct the training as soon as possible. Spam Not spam Forget previous vote Sponsored by: Board CITY OF SEWARD, ALASKA PORT AND COMMERCE ADVISORY BOARD RESOLUTION 2011 -03 A RESOLUTION OF THE PORT AND COMMERCE ADVISORY BOARD, TO RECOMMEND THE CITY OF SEWARD INVESTIGATE FUNDING OPPORTUNITIES INCLUDING GRANTS FOR CONSTRUCTING AND INSTALLING THE SLIPS CONNECTED TO Z FLOAT IN THE SEWARD HARBOR WHEREAS, the Seward Harbor staff maintains a waitlist for slips, demonstrating a demand for additional moorage in the harbor; and WHEREAS, the Seward Harbor will begin to utilize Z float for additional moorage upon its completion during the Summer of 2011; and WHEREAS, the proposed design for the slips connected to Z float would provide moorage for an additional 61 vessels and space for additional transient vessels and provisions for landing craft access north and west of Y float; and WHEREAS, the benefits for this project include additional moorage for larger vessels (40 -150 feet LOA), additional power and potable water services, and economic opportunity for additional business within Seward; and WHEREAS, the layout, waitlist, and estimated revenue for these slips was discussed during several PACAB meetings in 2011; and WHEREAS, this project is recommended in the Seward Small Boat Harbor Planning and Development Guide as adopted by City Council Resolution 2003 -32. NOW THEREFORE, BE IT RESOLVED by the Port & Commerce Advisory Board that: Section 1. The Board recommends the City of Seward investigate funding opportunities including grants for installing the slips connected to Z float in the Seward Harbor. Section 2. The Board recommends that borrowed funds for installation of the floats be exclusively supported by fees from the slips connected to Z float. Section 3. The Board does not recommend tariff, rate or harbor -wide fee increases to support the construction or operation of slips connected to Z float. l�� Port and Commerce Advisory Board Resolution 2011 -03 PASSED AND APPROVED by PACAB of the City of Seward, Alaska this 18 day of May, 2011. THE CITY OF SEWARD, ALASKA Ron Long, Chair AYES: Jaffa, Schaefermeyer, Altermatt, Long NOES: None ABSENT: Linville, Oliver ABSTAIN: None ATTEST: 4a J hanna Kinney, CMC -City Clerk (City Seal) r f i Q r 3 a� 6 +0 4;' OF iktk `'v l)b City of Seward, Alaska Port and Commerce Advisory Board Minutes May 18, 2011 Volume Page CALL TO ORDER The May 18, 2011 rescheduled regular meeting of the Port and Commerce Advisory Board was called to order at 12:0 p.m. by Ron Long, Chair. OPENING CEREMONY Chair Long led the pledge of allegiance to the flag. ROLL CALL There were present: Ron Long, presiding, and Bruce Jaffa Deborah Altermatt Darryl Schaefermeyer Comprising a quorum of the Council; and Michelle Weston, Assistant City Manager Kari Anderson, Harbor Master Suzi Towsley excused — Daniel Oliver, Bob Linville SPECIAL ORDERS, PRESENTATIONS AND REPORTS 1. Alaska Railroad Representat Louis Bencardino Bencardino reported that the Alaska Railroad personnel had visited Seward the day before and pre.sented their new strategic outlook for 2011 -2015. He noted that this meeting had gone well and the presentation seemed to have been well received by attendees. Cooperation between the Railroad and the City was encouraging. First cruise ship was expected Friday the 19 to kick off the busy summer season. 2. Harbor Master Report — Kari Anderson The weekend of the 19 was Harbor opening day weekend including a military appreciation bar - - blessing of the fleet and dance party planned. Volunteers were being solicited. Z float installation was running in time, with electric pedestals and water and sewer lines being installed. A work session with City Council would take place on Monday June 6 to review the Harbor Tariffs. Coast Guard building relocation was being negotiated. Harbor staff was installing upgraded power pedestals at SMIC, increasing to meet needs. tai City of Seward, Alaska Port and Commerce Advisory Board Minutes May 18, 2011 Volume , Page City Administration had joined City Attorney Cheryl Brookings in court for oral arguments to the 9 circuit court of appeals on the case with RBCA and Alaska Community on Toxics. Appeals regarding attorney fees were ongoing. The mayor was set speak at the chamber luncheon on Friday to give a presentation on the Coastal Villages Region Fund. Chair Long asked what the changes to the Harbor and Tariff rates might. Anderson remarked that she was nor sure. The schedule for work sessions on the enterprise funds was discussed. There was as some concern about the process and whether or not PACAB would get another chance to be involved. The harbormaster stated that she believed that the board input would take place at the council work session. Long pointed out that they (PACAB) could only act as a board in a board setting and wanted to be sure that they were afforded time to formally make their recommendations to council. ; ,Anderson then said that since the work session was over the board would have a chance to review the information covered by the council, ad make their recommendations. The budget process was set to begin in the fall as usual. Ideas were discussed about scheduling PACAB meetings in June. Weston remarked that she believed there was a comparison planned for the work session on June 6th and no recommendations were being planned for or formulated right away, The board generally discussed when the tariff was to come up for board review again. It was decided that the board would like to review the tariff and make recommendations prior to the budget process formally beginning in September 2011. Harbormaster requested clarification for the PACAB meeting schedule for June. Chair Long replied that the schedule should be left as it was originally planned, meeting on June 1 and works session June15, 2011. Administration Report — Michelle Weston Phillip and Jean Bardarson were in Seattle meeting with the Coastal Villages Region Fund staff and doing a needs assessment. There had been a lot of interest from film and production crews in the Seward Area. Aesthetic banners were to be installed soon as part of a beatification program. The Seward Shuttle was scheduled to start on Friday May 19, now route signs and maps were being installed. CITIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING There were none. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Altermatt /Schaefermeyer) Approval of Agenda Added "Set the work session topic for June 15" to Agenda Unanimous Consent Motion Passed 1�� City of Seward, Alaska Port and Commerce Advisory Board Minutes May 18, 2011 Volume , Page Motion (Schaefermeyer /Jaffa) Approve Resolution 2011 -03 of the Seward Port and Commerce Advisory Board of the City of Seward, Alaska, to recommend the City of Seward investigate funding opportunities including grants for constructing and installing the slips connected to Z float in the Seward Harbor Amendment (Schaefermeyer /Jaffa) Adding to the third Whereas to read as follows "Whereas, the proposed design for the slips connected to Z float would provide moorage for an additional 61 vessels, and space for additional transient vessels and provisions for landinji craft access north and west of Y float; and" Amendment passed unanimously Amendment (Schaefermeyer /Jaffa) Adding: Section 2) The Board recommends that borrowed funds for installation of the floats be exclusively supported by fees from the slips connected to Z float. Secondary Amendment (Jaffa /Altermatt) Section 3) The Board does not recommend tariff, rate or harbor wide fee increases to support the construction or operation of slips connected to Z float. Amendment and secondary amendment Passed Unanimously Vote on the Motion Resolution 2011 -03 passed unanimously as amended. Amendment (Schaefermeyer /Jaffa) Resolution 2011 -04 of the Seward Port and Commerce Advisory Board of the City of Seward, Alaska, recommending Council approval of PACAB priorities from May 2011 to April 2012 Technical Corrections Made to errors in the resolution. Amendment (Jaffa /Schaefermeyer) Adding priority 10. Review the Small Boat 1 D1z:\ City of Seward, Alaska Port and Commerce Advisory Board Minutes May 18, 2011 Volume , Page Harbor development plan. Section 1) The following list of priorities through April 2012 as discussed in the April 5, 2011 joint work session is hereby approved by the board and recommended for council approval. Amendment Passed via unanimous consent Vote on the Motion Resolution 2011 -04 passed unanimously as amended, The board specifically requested that administration keep them informed of and updated on Coastal Villages Region Fund project progress. Motion (Jaffa /Schaefermeyer) Set the June PACAB Work session topic as begin review of the Harbor Tarriff Motion passed via unanimous consent Motion (Jaffa /Schaefermeyer) Approve April 6, 2011Minutes Minutes Approved via Unanimous Consent BOARD COMMENTS Schaefermeyer relayed that the SeaLife Center had just gotten a new clean sea water intake line and dramatic video would be forth coming. Altermatt reminded everyone of the Blessing of the Fleet and Harbor Opening Weekend. CITIZENS' COMMENTS BOARD AND ADMINISTRATIVE RESPONSE TO CITIZENS' COMMENTS ADJOURNMENT The meeting was adjourned at 1:49 p.m. Suzi Towsley Ron Long Executive Liaison Chair (City Seal) j 3c� June 2011 June 2011 July 2011 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 1 2 3 4 1 2 5 6 7 8 9 10 11 3 4 5 6 7 8 9 12 13 14 15 16 17 18 10 11 12 13 14 15 16 19 20 21 22 23 24 25 17 18 19 20 21 22 23 26 27 28 29 30 24 25 26 27 28 29 30 31 Monday Tuesday J Wednesday Thursday 30 31 Y Friday Jun 2 3 7:OOpm CC WS; Chamk m c 0 m 2 6 7 8 9 10 7:OOpm City Council W 6:30pm P &Z Work Ses 11:30am Seward Comm 0 c 13 14 15 16 17 7:OOpm City Council M 12:OOpm PACAB Meetin 9:OOam Social Security 6:30pm Historic Preser M 20 21 22 23 24 6:OOpm Special City Cc 6:30pm P &Z Work Ses O C 7 27 28 29 30 Jul 1 5:00pm CC WS; 2010 P 7:00pm City Council M Nanci Richey 1 6/22/2011 3:58 PM '3' July 20 1 1 July 2011 August 2011 SuMo TuWe Th Fr Sa SuMo TuWe Th Fr Sa 3 4 5 6 7 8 9 7 8 9 10 11 12 13 10 11 12 13 14 15 16 14 15 16 17 18 19 20 17 18 19 20 21 22 23 21 22 23 24 25 26 27 24 25 26 27 28 29 30 28 29 30 31 31 Monday Tuesday Wednesday Thursday Jun 27 28 Friday 29 130 I Jul l N 7 4 5 6 7 8 Independence Day; Of C E) 11 12 13 14 15 5:45pm City Council W 11:30am Seward Comm 7:00pm City Council M vi 19 20 21 22 7 :00pm CC WS; Wat 6:30pm P &Z Work Ses 12:OOpm PACAB Work 5 9:OOam Social Security 6:30pm Historic Preser N N CO rl 25 26 27 28 29 7:OOpm City Council M 5: 36 CC 1.05 w /Pty re . WKIZ d Witant Nanci Richey 1 6/22/2011 3:58 PM 1 3a