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Home My WebLink About1988-05-25 Council Packet - Work SessionKenai City Council Work Session May 25, 1988 Salaries Exempt Employees Dock Facility Development Airpor Bicentennial Softball / Baseball Park Greenbelt Park CITY OF KENAI %0d eap4W 4 4"„ a:OF:OALoO KENNo AL49KA 99611 TELEPNONE2e3•T6 5 NOTICE OF WORK SESSION The Kenai City Council will be holding a work session on Wednesday, May 25, 1988 at 7:00 PM in the Council chambers. To be discussed: 1. Ordinance 1260-88 - Amending Kenai Municipal Code, Title 23 - Allowing Council Discretion of Setting Salaries of Exempt Employees 2. Comprehensive Plan 3. Five Year Plan: a. Dock Facility Development- b. P-3 Orion & Military Projects - Runway Overlay - Runway Extension c. Kenai Bicentennial Project d. Softball\Baseball Park Completion e. Total Greenbelt Park Development The public is invited to attend and participate. /LV&" Janet Ruotsala City Clerk DATED: May 23, 1988 I ATi E' CITY OF KENAI May 23, 1988 T0: Council FROM: John J. Williams ""0' Mayor RE: Work Session, May 25, 1988 Our principal topic of discussion will be Ord. 1260-88. Time permitting I would like to have discussion on the development of the five year operating plan for the City as outlined in my April 27, 1988 memo. Some topics that may be considered for discussion are listed. JJW:jr III i i r �r c . t: K, L i Suggested By: Administration CITY OF RENAL ORDINANCE 1260-68 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING THE KENAI MUNICIPAL CODE, CHAPTER 23.55.010, ENTITLED EXEMPT SALARIES, SO AS TO ALLOW THE KENAI CITY COUNCIL HAVE THE DISCRETION TO ESTABLISH SALARIES OF EXEMPT EMPLOYEES. WHEREAS, KMC 23.55.010 provides that salaries for exempt salaries be negotiated between those employebs and the Council; and, WHEREAS, KMC 23.55.010 provides that these salaries may be set by motion of the Council; and, WHEREAS, the present KMC 23.55.010 restricts the City Council in establishing minimum and maximum salaries for exempt employees; and, WHEREAS, KMC 23.55.010 conflicts with Council's desire relevant to salaries anticipated to be set for exempt employees. NOW THEREFORE BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, KMC 23.55.010 is amended as follows: 23.55.010 Exempt Salaries: Salaries of City Manager-,- _ City_ Attorney, and City Clerk shall be negotiated by -the Council (or by a committee and approved by the --- Council) and may be set by motion of -Council. (THE SALARIES OF THESE INDIVIDUALS SHALL BE WITHIN THE FOLLOWING RANGES: 1 CITY MANAGER $55,000 TO $75,000 CITY ATTORNEY $50,000 TO $70,000 CITY CLERK $35,000 TO $45,000 THESE SALARIES SHALL BE IN ADDITION TO THE CUSTOMARY BENEFITS PROVIDED FOR THE POSITIONS. THESE SALARIES SHALL BE APPLICABLE FOR FISCAL YEARS FOR WHICH EMPLOYMENT CONTRACTS ARE NOT IN EFFECT AT THE EFFECTIVE DATE OF THIS ORDINANCE.) -1- -i PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this first day of June, 1988. JOHN J. WILLIAMS, MAYOR ATTEST: Janet Ruotsala, City Clerk First Reading: May 18, 1988 Second Reading: June 1, 1988 Effective Date: July 1, 1988 (S/9/88) ;F sJ . J. LI _ .. i CITY OF KENAI Vid eap" • 61O RDALOO KENA1, ALA6KA 69611 TELEPHONE20-7635 April 10, 1987 TO: Council FROM: John J. Williams Mayor v it has come to my attention that the Comprehensive Plan for the City of Kenai remains incomplete even after several years of review. it is also my understanding that the principle reason for this is the necessary work needed to be done at the Borough level. in any good organization the mandatory need for a five year operating plan is well recognized. With this in mind I would ask the Council: a) We refresh ourselves by reviewing already completed work -----WiMociated with the Comprehensive Plan. b) We complete according to our standards our own Kenai City Comprehensive ...Plan. c) We set aside some time in the very near future to accomplish this matter. d) After completing this matter, begin work on a five year operating plan for the City, remembering that a five year operating plan is one in which we will establish goals and objectives, set priorities and create a track on which the City will run. I propose that this five year plan, once completed, would then be reviewed annually and the five year plan be rolled forward one year at a time on an annual basis; so that we always have before us these much needed goals and objectives with development times more realistic to government. I would request from members of Council their feelings on this matter and open discussion, and a time frame for instituting work on this project. 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'v i-j. lJ-,` `'.� ./1� w A / 131 I' Ia0 i. •f"1 �hM`;i,`11t1 '...:, • •�I� iti f 1 �•f. .•.'i� ' .'t .-•�. ,lid `' + 6f � 1r .� 1 t'(I'�1 / '•� I IH� t �• 1• •\ �, •.l r - �,^T+- �` •If' s ,t 'Ale A_ l 1, 11 ►' '�..; B ,, , It I� '.y� `tl. . .'.I. �;,i, �'t,ti„1.. 1 .:,r ` '• • r', 6 �`• 1 aTRACT s r L!,1 �!!� (��i '�t.,�..c-'T �`Y �., ,•1.` •r,' �'��rr it �� .;qlt '.1, 1�;:�3^.h,l, Ji:iy; .'_�;�1 a.. ,. �� - t �r� xi. ,v ��: '� �'.a:yi'�.1�'--}r'-�1`R, � •'.�►,�:Sr'r \ .,ti�S, c��r�� , • �.' °'ii:.i'tA�',�+•T�: r.'H''•R'�` , Y! I i CITY OF KENAI Oil eapi l 4 4" I MORfDALGO KENAI.ALASKA Mi TELEPHONE M. Ml MEMORANDUM TO: Council Members City of Kenai FR l mothy J. Rogers, City Attorney City of Kenai DATE: May 25, 1988 RE: Marvin Dragseth/Royal Pacific Fisheries Attached for your information and edification, please find the following documents: 1. 5/24/88 TJR memo to WJS commenting on proposed changes requested by Dragseth's counsel to the utility permit. 2. Draft "City of Kenai Utility Permit" 3. 5/24/88 T. Petumenos letter outlining requested changes in permit. 4. 5/18/88 J. Lowenfels letter to M. Dragseth which was distributed to the Council during May 18, 1988 Council Meeting. 5. 5/25/88 K. Olson, Walters & Olson, Insurance, letter to TJR regarding general liability coverage. 6. 5/18/88 Council Meeting Partial Verbatim regarding Royal Pacific Fisheries. 7. 5/24/88 Peninsula Clarion newspaper article entitled, "Fish Processor Slapped with Fine," and regarding proposed pipeline. TJR/clf Attachments I r.1a CITY OF KENAI (7il G� - 4 �4� 210 FIRALOO KENAI, ALASKA 99611 TELEPHONE 282 - MB E�! MORAND_ Ub TO: Wm. J. Brighton, City Manager fty of Kenai FR Timothy J. Rogers, City Attorney City of Kenai •J DATE. May 24, 1988 RE: Royal Pacific Fisheries/Marvin Dragseth At the May 18, 1988 Council Meeting, Council directed this office to draft a permit allowing Mr. Dragseth's pipeline on Pirate Lane. On May 19, 1988, we drafted the document and faxed (the next day) the draft agreement to Tim Petumenos, Mr. Dragseth's counsel in Anchorage. On May 24, 1988 (the day this memorandum was dictated), at 10:35 a.m., Mr. Petumenos telephoned this office to discuss and object to some of the clauses in the permit. Mr. Petumenos had with him in his office during our (speaker phone) conversation the representative from Royal Pacific Fisheries, who addressed the Council at the May 18, 1988 Council Meeting. Their objections and comments are as follows: S. Fee - They indicated that no fee was discussed at the Council Meeting and they object to any fee other than a nominal consideration for the document, such as one dollar ($1.00). C. Renewal - They object to the total term as indicated by this paragraph as ten years and asked for successive five-year periods for an indefinite period of time, i.e. in perpetuity. G. Reservation of Rights - They object to this clause and ask that it be stricken. - M. - Abandonment_- They request that the last paragraph be changed so that abandonment would require non-use for a period of five (5) years, rather than one (1) year and would read as follows: i `5 r t, t t 'IN. ABANDONMBNT: Upon abandonment of the pipeline, PERMITTEE agrees to remove pipeline from the CITY right-of-way, in a manner conforming to the applicable sections of this permit. PERMITTEE, i.e. Royal Pacific Fisheries and Marvin Dragseth in his individual capacity, shall be solely liable of the financial cost of removing the abandoned pipeline. Abandonment shall be deemed conclusively established in the event PERMITTEE's facility, Royal Pacific Fisheries, located on Kalifornsky Beach Road, fails to discharge seafood processing waste through the pipeline for a period of dive _45�_Years [ONE YEAR, OR UPON SALE BY ASSIGNMENT OR TRANSFER UNLESS PREVIOUSLY CONSENTED TO IN WRITING BY THE CITY]." J. Waiver - They want to add the Council or the Council's delegate as the determining body or person as to whether or not there was a waiver. in reviewing the document and my notes, immediately subsequent to the telephone conversation it appears to me that Paragraph "K" immediately below takes care of their request as does Paragraph "J." 0. Insurance - They object to the requirement of the City being named as an additional named insured and maintain that it would create an absolute nightmare with their insurance company to comply with this provision. They have a general Uability policy and feel it should suffice. P. Termination of Permit - They object that a breach does not have to be material. R. Previous Easements and Utility Permits - Anchorage counsel objects to this provision and asks that it be deleted or in the alternative, that it be changed so that certificated utilities are required to use the easement consistent, with and presumptively subservient to, the use by Royal Pacific Fisheries. Y. Attorney's Pass - Royal Pacific's attorney asks that this provision be changed so that either Alaska Rules of Court, No. 82, Attorney's Fees be made applicable, or that attorney's fees be awarded to be prevailing party, rather than the City being the only party awarded fees. While that was the end of the comments, suggestions and criticisms made by Royal Pacific Fisheries' Anchorage counsel, I informed him that if he had any other materials, they could be -a- I r- faxeA to us and I would attempt to review them this evening and circulate them in a timely manner through the administration, and to the extent possible, the Council. Anchorage counsel stated that he would be telephoning me tomorrow morning regarding this matter. The City's legal concerns regarding the suggested changes to the document are set forth below. The City Legal Department has no problem with nominal consideration in "Paragraph B" or with "Paragraph V involving the City Council or its delegate determining whether or not a waiver existed. We may be able to work around the requirement of "Paragraph O" so that the City is not a named insured, but would reserve judgment until consultation with our insurance broker. We agree that "Paragraph P" should require that -a -breach be material but the Council should not be the determining body as to the materiality of a breach. The "Paragraph Y" provision that would provide for prevailing attorney's fees, or make this provision one incorporating Alaska Rules of Court, No. 82 is acceptable. I would recommend against a document incorporating changes in other provisions. The reasons for not accommodating Anchorage counsel for Royal Pacific Fisheries' requests, as to the remainder of the objections to the document as prepared by the City, are as follows: C, Renewal - The Council specifically directed that the term be for five (5) years, with an option to renew. There was no discussion of successive renewals or renewals in perpetuity. I believe that granting a right of renewal past a term of ten years would be contrary to Council's wishes and an ultra vices act. v G. Reservation of Rights - This clause is virtually identical to one used by the State when they granted Mr. Dragseth's permit for the pipeline. I see no reason why the City should have any less rights than the State. Furthermore, it has been the City's consistent policy to require even certificated _ utilities to relocate their facilities when the City requires. To allow an non -certificated utility to get around standard policy sets a very dangerous precedent. We are involved in ' complex litigation over the issue with several utilities and I see no reason to add another potential plaintiff. _1 J t H. Abandonment - I would recommend a compromise of two (a) years of non-use. It is possible that the cannery might miss a season and want to operate the next year. Five years could be a long time to put up with a potential problem in the right of way. R. Previous Basements and Utility Permits - Dragseth's own engineer assured the Council that there is plenty of room in f the right of way for its' pipeline and all the utilitieu that now {) or may in the future exist. I fail to see why they are objecting h to this provision. Further, the utilities are already litigating ! _. the necessity of relocations and any further obstacle to relocation is undesirable. Remember, Dragseth's pipeline is a ---�_. non -certificated and has no rights under Title 42 of the Alaska 4. Statutes. To voluntarily place him in as good a position as the utilities would be unwise. Please inform this office at your earliest convenience which provisions, if any, you would like changed in the permit. I anticipate Mr. Petumenos will be calling soon and Mr. Dragseth is anxious to get started with installation of the pipeline. TJR/clf -4 - t .. s. t �f. J O f c. i, CITY OF KENAI UTILITY PERMIT •��%fir . , / 1 The City of Kenai, acting by and through its Acting Manager, hereinafter referred to as the CITY, and pursuant to the City of Kenai's home -rule powers, its Charter and provisions of the Kenai '. Municipal Code, hereby grants a utility permit to Royal Pacific Fisheries and Marvin Dragseth, individually, hereinafter referred to as PERMITTEE, permission to construct, install, and thereafter perform routine maintenance, use and operate a discharge pipe, carrying seafood processing wastes, hereinafter called PIPELINE, as follows: - Across, along, or under property of the CITY, within the utility corridor right-of-way located on Pirate Lane and crossing Watergate Way, at the intersection of Pirate Lane and Watergate Way within the City of Kenai, Kenai, Alaska, in strict performance with the plans, specifications, and special provisions attached hereto and made a part hereof, and not otherwise. f A. JERMt. The term of this permit shall be for a period of five (5) years, commencing June 1, 1988 and ending May 31, 1993. B. X!Et PERMITTEE agrees to pay to the CITY -the -,amount of $ per year, payable on or before July l'PON every year this permit is in effect for the right to install the pipeline in the City of Kenai's right-of-way. Reimbursement shall be paid by check, cash, or money order, made payable to the City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska,-99611. C. RENEWALo- PERMITTEE shall be entitled to renew this permit for a period of five (5) additional years commencing June 1, 1993 and ending May 31, 1998, under the following terms and conditions: 1. PERMITTEE shall notify the CITY in writing of its intention to renew the permit not less than ninety (90) days prior to May 31, 1993. Notice to the CITY shall be in writing and delivered to the City of Kenai at 210 Fidalgo Avenue, Kenai, Alaska, 99611. 2. PERMITTEE shall only be eligible for renewal of the permit upon a showing that PERMITTE,, or his facility located on Kalifornsky Beach Road, ;ot = Kenai 1 1 I Peninsula Borough, has not, during the time the pipeline has been installed, been in violation of any gpderal, state, or local ordinance, law or regulation now or ;nafter existing, concerning the disposal of was1is. D. INSTALLATION: By accepting this permit, PERMITTEE agrees, prior to construction, to obtain and comply with all permits which may be required by the City of Kenai Municipal Code. PERMITTEE further agrees to install pipeline at a minimum depth of four (4) feet and in such a manner as to not conflict with other utilities within the right-of-way which are either in place or may be placed in the future. PERMITTEE agrees that the CITY is in no way liable or in any way required to contribute to engineering or feasibility studies or work which may be required for installation, maintenance, removal or relocation, of the pipeline. PERMITTEE agrees to comply with any Alaska Statutes and/or Administrative Code provisions for the installation of pipelines. The entire cost of maintenance operations of the pipeline are to be paid for by the PERMITTEE, and the said pipeline shall comply with all applicable codes, regulations, statutes, and ordinance. F. tUBLIC USE: The PERMITTEE's construction, installation, maintenance, and operations of the facility shall be accomplished with minimum interference, interruption of the use, operation and maintenance of the CITY's right-of-way and/or public facility and shall not endanger the general public in its use of the public property. G. RESER-VATION OF RZL;HTS: The CITY in granting this utility permit, reserves the right to use, occupy, improve, and enjoy its property for all permissible purposes and in such manner and at such times as it deems necessary, the same as if this instrument had not been executed by the CITY. If any such use by the CITY shall at any time on or manner -of use of the uch change, alteration, or a i ,„ r- relocation, shall be made by the PERMITTEE at the PERMITTEE's sole cost. Such change, alteratio relocation shall be made within thirty (30) days of written'w*IIp on made by the CITY to PERMITTEE. . H. AB Upon abandonment of the pipeline, PERMITTEE agrees to remove pipeline from the CITY right-of-way, in a manner conforming to the applicable sections of this permit. PERMITTEE, i.e. Royal Pacific Fisheries and Marvin Dragseth in his individual capacity, shall be solely liable for the financial cost of removing the abandoned pipeline. Abandonment shall be deemed conclusively established in the event PERMITTEE's facility, Royal Pacific Fisheries, located on Kalifornsky Beach Road, fails to discharge seafood processing waste through the pipeline for a period of one year, or upon sale by assignment or transfer unless previously consented to in writing by the CITY. I. EXPENSES:_ The PERMITTEE, by these presents, accepts notice and agrees that any expenses or damages incurred by"the PERMITTEE through the abandonment, removal, reconstruction ,.,oi.ialteration of any public facility, or incurred by said PERMITTEE'aa*a result of this disclaimer, shall be borne by said PERMITTEE at no expense whatsoever to the CITY. J. The waiver or breach of any terms or conditions of this utility permit or provisions of the Kenai Municipal Code by the CITY shall be limited to the act or acts constituting such breach and shall never be construed as being a continuing or permanent waiver of any such term or condition, unless expressly agreed to in writing by the parties hereto, all of which shall retain in full force and effect as to future acts or happenings, notwithstanding any such individual waiver or any breach thereof. K. WAVER AUTHORITY: 41 Only the City Manager of the City of Kenai, or his delegate, shall have the authority to waive any term of condition contained ` herein. 3 ■, L I tY.MM��k(if r i v L. ASSIdNMENT• The PERMITTEE shall not assign or trans any of the rights authorized by this utility permit excep�aax fication to and approval by the City of Kenai, which ap'pr �ha 1 not unreasonably be withheld. ' M. RYs t PERMITTEE shall give the CITY not less than ten (10) days prior written notice, unless otherwise agreed to by the parties hereto, of the PERMITTEE's intention to enter upon the CITY's property for the purpose of maintenance, reconstruction, altering or -- removal of the pipeline, and provided further,- that any instance e of sudden emergency requiring prompt and immediate action to protect the public safety, or to mitigate damage to private or public property, no prior notification to the CITY will be required by the PERMITTEE. The PERMITTEE shall notify the City of Kenai and the City of Kenai Police partment of the location of the emergency and the extent work �re�,.�tX the most expeditious means of communication as a W4p reasonably possible to do so, and the PERMITTEE shall take such'measures as are required to protect the health and safety of the public adjacent to the pipeline or users of the right-of-way for the duration of such emergency operations. - N. MEMNIBICATIONS The PERMITTEE agrees to forever indemnify the City of Kenai including its agents and contractors, against, and save them harmless from, all liability for damage to property, or injury to or death of persons, including all costs and expenses incident thereto arising wholly or in part from or in connection with the ` existence, construction, alteration, maintenance, repair, renewal, reconstruction, operation, use or removal of the said pipeline. O. NI SURANCE: J PERMITTEE, at the expense of PERMITTEE, shall keep in force during the term of this permit, insurance issued by responsible insurance companies authorized to do business ir+ Maska, in forms, kinds, and amounts as determined and dir6cted hereinafter for the protection of CITY and/or PERMITTEE, including, but not limited to, such provisions. Insurance required hereunder shall be subject to the sole determination of the CITY as may require N that CITY be named an additional insured or loss payee and waiver of subrogation against the CITY. 4 +ti � Y 1 Upon obtaining all insurance required, in the forms, kinds and i amounts directed to be procured, PERMITTEE shall deliver all ' policy originals or duplicate originals and endorsements thereto r to the CITY for incorporation within this agreement as attachment' thereto. In any event, PERMITTEE is nce to exercise any of the rights and privileges grant Tis agreement f until such time as all insurance directed and required to be -„ furnished by PERMITTEE is in full force and effect. PERMITTEE expressly understands and agrees that any insurance -- ----- ? protection furnished by PERMITTEE hereunder shall in no way limit --- its responsibility to indemnify and save harmless the CITY under the provisions of this agreement. No policy of insurance shall be cancelled or amended with respect . I to the CITY without thirty (30) days written notice by registered °s or certified mail to CITY of the insurance company. Until otherwise directed in writing by the City Manager, - PERMITTEE shall provide certificates of insurance within thirty - (30) days of the date hereof as follows: } Comprehensive General Liability Combined Single Limit SoOtly,rtnjury and Property Damage) Cv Both - - Pipeline and Fishery Facliiy S P. TERMINATION 08 PERMIT: - Upon a showing of any violation of federal, state, or local regulation law, ordinance or statute, concerning the disposal of waste products, through the pipeline or at the Royal Pacific Fisheries facility, or upon breach of any term of this permit, the CITY may, at its sole discretion, terminate this permit and require PERMITTEE to remove said pipeline from the CITY's right- of-way. In the event the CITY desires to terminate this permit, it shall notify PERMITTEE in writing of its intention to do so, setting forth the allegations and reasons why it desires termination of the permit. Upon receipt of such CITY's notification, PERMITTEE shall have ten (10,) days in which to '. respond to CITY's allegations. Upon submission of PERMITTEE's response, the City Manager, shall within ten.(.20), days, consider the response and make a final decision thereon. Upon final decision, the CITY shall notify PERMITTEE in writing of the City Manager's decision. If PERMITTEE is required to remove the pipeline, he shall do so within sixty (60) days of notification. I � 5 r i. i� 6 ,1 y c c Q. RIGHT OF ENTRY: PERMITTEE agrees by entering onto the CITY's property, within the right-of-way, to indemnify the CITY and o tractors of all costs, tangible or intangible that would ult of any delay in a construction project caused by oche under this permit. R. PREVIOUS EASEMENTS AM MZZLITY $ERMITO: This permit is subject to all previous easements and utility permits within the right-of-way and any damage to any other utility facility, shall be the PERMITTEE's sole responsibility. The PERMITTEE further agrees to subordinate any interests he may have in the right-of=way to any certificated utility which may desire to place a utility facility within the CITY's right-of-way corridor and as part of such subordination to relocate the pipeline to accommodate the utility if required. S. AS-BUtLTSs PERMITTEE may be required, in the CITY's sole discretion, within thirty (30) days of completion of any i,�rovement placed upon or within the right-of-way described hereihf�-oj8la�var to the CITY as -built drawings showing the location iW.�co,struction of specifications of the improvement. T. Pb$3". Slue -line drawings developed by Mike Tauriainen, P.E., dated February, 1988 and drawn by H.S., entitled "Project No. 87142" are attached hereto and are specifically incorporated within this permit as if set forth herein. PERMITTEE agrees to construct the pipeline in conformance to these plans attached hereto. U. TRAFFIC -CONTROL: PERMITTEE shall provide, during the duration of the construction, adequate signing, barricades, and traffic control devices conforming to the latest revision of the Alaska Traffic Manual. PERMITTEE shall maintain two-way traffic.4t,"Al'times when feasible. PERMITTEE shall have no parked equipment left upon the road surface at any time. V. RE-8EE9ING AM TOP SOILS PERMITTEE shall replace any topsoil lost as a result of construction under this permit. Re -seeding of all slopes 6 C disturbed by excavation shall be done at th''� TP,E's expense. PERMITTEE shall re -seed as per the "Re-vege�dt�j�nide for Alaska" printed by the State of Alaska Cooperative 9xtensive Service. W. CLEAN--W RESPONSIBI PERMITTEE or his contractor shall be responsible for winter and spring maintenance of the road shoulders, ditch lines, back slope and road surfaces that have not been left in a neat and clean condition and satisfactory to the City of Kenai City Engineer. Upon completion of the work within the CITY right-of-way, PERMITTEE shall remove all equipment, dispose of all waste material and shall leave the premises in a neat and clean condition, satisfactory to the City of Ke City Engineer. PERMITTEE shall replace all driveways, stI i atersections, in kind. All signs damaged or removed shall be Oliced in kind by the PERMITTEE or his contractors to the CITY's standards. X. FO In the event either party to this permit shall file an action (lawsuit) arising out of any dispute concerning this permit, venue for the lawsuit shall be within the Third Judicial District at Kenai, Alaska. Y. AMTO-RNEi['_"EEO In the event of any civil action (lawsuit) arising out of this permit, PERMITTEE agrees to pay the CITY's full attorney's fees in the event the CITY is adjudged the prevailing party in the action, Z. IN8PECTIQN: PERMITTEE agrees to reimburse the CITY for ;,eccbual:costs of inspection and testing as required by performance of the work proposed by the PERMITTEE. The scope of inspection testing shall be determined by the City Engineer of the City of Kenai. Costs f.41, oa *., D@OMTTTL!O et,.,, t+s 4-%e actual CITY costs incurred while J• 7 - L J i IN WITNESS WHEREOF, the parties herd have hereunto set their hands, the day and year stated in vidual acknowledgments below. CITY OF KENAI INDIVIDUALLY: By: Marvin Dragseth STATE OF ALASKA By: Wm. J. Brighton City Manager PERMITTEE: ROYAL PACIFIC FISHERIES By:.;, , , vin Dragseth oa Pacific Fisheries 1 s8. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of May, 1988, MARVIN DRAGSETH, individually and in his representative capacity, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument. STATE OF ALASKA ) - THIRD JUDICIAL DISTRICT ) Notary Public for Alaska. My Commission Expires: this day of May, 1988, it of the City of Kenai, Alaska, 8 J 0 - 71" '1 .. ` . a r r-- being personally known to me ,�,,s g produced satisfactory evidence of identification,fore me and acknowledged the voluntary and authorized eR4 itJoq;'of the foregoing instrument on behalf of said City. Notary Public for Alaska. My Commission Expires: Approved as to form by City Attorney Approved by Acting City ManaAr')j 9 1� t 1 . LAW OFFICES BIRCH. HORTON, BITTNER. PESTINGER AND ANDERSON A PROFESSIONAL CORPORATION 1187 WEST SEVENTH AVENUE • ANCHORAGE, ALASKA 09501 • TELEPHONE 19071 a76-I680 • TCLCCOPIER 19071 876-86aa • TELEX 38.3S6 ,I. RVAN J. AND[RSON RIM OONN STANL[Y T L[WIS SHERIDAN STRICKLAND#* FIRST NATIONAL BANK 9UILDINO LLOYD LI ANO[RSONI0 [RIC A el0[NI/ JCFFREY P. LOW[N/[LSLI JONATHAN 11. TILLINOHAST 100 CUSHMAN BTREET. SUITC 311 . " LUANN C. WL[T JOSCPH W [YANG-• JEFFREY ,. MILL". CAN191, VA WESTCR.uRO ►MRIiANKt, ALABKA 00701 IIONALO Q. B1RCN-* WILLIAM W GARNER' MICNACL J. PARIS[ T. M[NRV WILSON 19071 *a8-fees WILLIAM M. i1TTN[114t JOHN W OR100S•- SUSANNC C. PEBTINOCRtt TC LCCOPIER ISO?) *Ca -BOOB MTHRYN A BLACK RICHARD O. HAGOART60 TIMOTHY J. PCTUMENOS _ CORY R. BORO[SON NAL R. NORTON0. MARCY M. 0[1111[111090- ROONCY B. CARMAN69 MARC W JUN[ MICKACL V R[uSINO ONE SEALASIIA PLAZA, SUITE 301 I,.,. JOSCPM M. CHOMSRI9# PAM[LA R. K[LL[Y ICUSABCTM H. ROSS" .D.C. RAR ONL► JUNEAU. AL.ASKA 89001 10071 BNB-SCIDO PATRICK 0. COLE MINDY A. KORNS[R0.• G 8000 SIMPSON w PAR O C. AND ANLASK ' TCL PAUI L OILLON OARY R. L[TCMER OT[PHEN F.SOR[NBCN All OTHER{ AlA{PA GAS ONLY CCOPIER 10071 SBB-OBI* "SO CONNECTICUT AV[.. N.W. SUITE uoo WABMINOTON. O. C. ZOOOO Writer's Direct Dial No. IEORISao-aeOD (907) 263-7219 T91.eeoP1ER 11201111 6e0-1087 May 24, 1988 ,. Timothy J. Rogers, Esq. VIA TELECOPIER City Attorney City of Kenai 210 Fidalgo Avenue .� Kenai, AK 99611 ' Re: Marvin Dragseth - Proposed Pipeline Permit Dear Tim: I have redrafted the paragraphs that we discussed on the I phone today with the modifications that we would propose on behalf of Royal Pacific Fisheries, Inc. Thank you for your prompt attention to this matter. As discussed on the telephone, i time is of the essence in this matter since construction of this system is necessary to begin operations in Kenai consistent with the coming fishing season. It was our understanding that the construction was to proceed while we worked out this agreement according to the the City Assembly. members of I have only included those paragraphs for which we have some modifications to propose. First, we would request that the ° agreement be between the corporate entity and the City. We would -- request that the first paragraph be amended accordingly. There- after, our changes are as follows: B. FEE: PERMITTEE agrees to pay to the CITY the amount of ONE DOLLAR ($1.00) per year, - - -- _"- - - payable -on or before July 1 for every year this permit is in effect for the right to - - — ----� install -the pipeline in the City of Kenai's , right-of-way. Reimbursement shall be paid by Icheck, cash, or money order, made payable to 11 r- BIRCH. HORTON, BITTNER. PESTINGER AND ANDERSON 1 A PRO►COSIONAL CORPORATION V Timothy J. Rogers, Esq. May 24, 1988 Page 2 the City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska, 99611. C. RENEWAL: PERMITTEE shall be entitled to renew this permit for a period of -five _(S) additional years commencing June 1, 1993, under the following terms and conditions: 1. PERMITTEE shall notify the CITY in writing of its intention to renew the permit not less than ninety (90) days prior to May 31, 1993. Notice - - to the CITY shall be in writing and delivered to the City of Kenai at 210 Fidalgo Avenue, Kenai, Alaska, 99611. 2. PERMITTEE shall only be eligible for renewal of the permit upon a showing that PERMITTEE and/or his facility located on Kalifornsky Beach Road, within the Kenai Peninsula Borough, has not, during the time the - pipeline has been installed, materially been in violation of any federal, state, ' or local ordinance, law or regulation now or hereinafter existing, concerning i the disposal of waste materials. G. RESERVATION OF RIGHTS: [stricken] �j H. ABANDONMENT: ---- Upon abandonment of the pipeline, PERMITTEE agrees to remove pipeline from the CITY right-of-way, in a manner conforming to the applicable sections of this permit. ., PERMITTEE, i.e. Royal Pacific Fisheries, Inc., shall be solely liable for the financial cost of removing the abandoned -- - -- ---- pipeline:- Abandonment shall be deemed -� conclusively established in the event -.----�=, PERMITTEE's facility, Royal - Pacific Fisheries, located on Kalifornsky Beach Road, I' fails to discharge seafood processing waste r"- 1 BIRCH, HORTON. BITTNER. PESTINCER AND ANDERSON A PRO/913tONAL COOPOROi*" Timothy J. Rogers, Esq. May 24, 1988 Page 3 through the pipeline for a period of five (5) years. K. WAIVER AUTHORITY: Either the City Assembly or the City Manager, or his delegate, shall have the authority to waive any term or condition contained herein. Royal Pacific Fisheries, Inc. shall have the right to request such a waiver from the City Assembly. O. INSURANCE: PERMITTEE shall keep in force during the term of this permit a general liability policy which shall include coverage for appurtenant structures and pipelines offsite. P. TERMINATION OF PERMIT: Upon a showing of a material violation of federal, state, or local regulation law, ordinance or statute, concerning the disposal of waste products, through the pipeline, or upon breach of any term of this permit, the CITY, at its sole discretion, may terminate the permit and require PERMITTEE to remove said pipeline from the CITY's right-of-way. In the event the CITY decides to terminate this permit, it shall notify PERMITTEE in writing of its intention to do so, setting forth the allegations and reason why it desires termination of the permit. Upon receipt of the CITY's notification, PERMITTEE shall have ten (10) days with which to respond to the CITY's allegation. Upon submission of PERMITTEE's response, the City Council shall, within ten (10) days, consider the response and make it a final decision upon whether -there was -a -breach- and -whether the breach was so material as to require the dismantling of the pipeline. Upon final decision, the CITY shall notify the PERMITTEE in writing of the City Council's decision. This decision shall not be arbitrary or V BIRCH. HORTON. BITTNER. PESTINGER AND ANDERSON h A PROP90610NA1, CORPORATION ` Timothy J. Rogers, Esq. May 24, 1988 Page 4 capricious. If PERMITTEE is required to C remove the pipeline, he shall do so within sixty (60) days of notification, assuming weather conditions and access permit. i Q. RIGHT OF ENTRY: (stricken) R. PREVIOUS EASEMENTS AND UTILITY PERMITS• j This permit is subject to all previous easements and utility permits within the right-of-way, and any damage to any other -. . utility facility caused by the PERMITTER shall be the PERMITTEE's sole responsibility. The PERMITTEE further agrees to subordinate any interest he may have in the right-of-way t to any certificated utility which may desire to place a utility facility within the CITY's i - right-of-way, only to the extent that it is unreasonable for any such certificated i utility to use the right-of-way consistent with PFRMITTEE's current use. In such event, - PERMITTEE shall have the right to relocate the pipeline to accommodate the utility. Y. ATTORNEY'S FEES: In the event of any civil action (lawsuit) arising out of this permit, the parties agree to pay full attorney's fees to the prevailing party in the action. Thank you for your attention to this matter. I will call you tomorrow to determine where we stand. Very truly yours, BIRCH, HORTON, BITTNER, CHEROT AWANDSON Timothy Petumenos Im J _ DISTRIBUTED TO COUNCIL AT ' - 5/18/88 COUNCIL MEETING BY ROYAL PACIFIC FISHERIES LAW OFFICES REPRESENTATIVE. TJR BIRCH. HORTON, BITTNER. PESTINGER AND ANDERSON A PROFESSIONAL CORPORATION j f, .127 WEST SEVCNTN AVENUE • ANCNORAOE. ALASKA 99001 • TELEPHONE 49071 816-1650 • TCLECOPICR 19071 876.2882 • TEL.Ex 86•366 I�! t ACNN J. ANOtASON LtOTO vI RIN OVNN CHIC A to sTANLtY S Laws Jtpr"ty S LOW[Np[L{•• SN901104N STRICKLANO•• JONATNAN IL TILLIN4NA{T /IRBT NATIONAL SANK SUILOINO SNLK{ON•� LVANN L BA1L[Y JO{[.N W [VAN{•• CVAO JippAtY M. "ILLCK• OAMCL TA WL{TCssUllO 100 CUSHMAN {TRC[7. SUIT[ 711 ►AINNANKS. AWRA OB701 NONALO 0. site"./ WNWAII It, tITTN[we "LUAU KL OANN[AT JOHN 10 OAIOos" NIC"A[L J. PARI{i SURANNt C. Pt{TIN490-4 R HCAAT 111LSON loops 468•0606 WATNAVN A BLACK PIC"AND O. "AOOAItt•T TIMOTHY J. ICTU"iN0{ ►[L[COPItR 1007) 4bS-BOB{ COLA 11. SONOCSON MAL A. "OxT011•0 NAACT 14. NCNgLROCA• ROONCT S. CAR"ANIll 1W.O TL JUNL NIC"A[L [ ACU{INO ONC {tALASKA PLAZA. SUITS 201 7 .,1 .IO{LINI N. CN010011•• VANCLA II. RCLLCY CUSAS[TN N. 1IM540 .O.C. {AA ONLY JUN[AU. ALASRA B111M H gTA1C11 S. COK KINDY t. KOANs[AOII i sUDO {IHP{ON ••O.C. Ar0 NVu {M IS071 NB•sg00 PAVL L. 01"0" OART II, U=H9N STCPNCN R tORCN{tN ALL 01NCAs ALA{.& CAA ON►T TCLCCOPIER 10071 {11S•SN14 Ilse CONNtCTICLIT AVRn N.W. skill[ IBOO Writer's Direct �'B WA'"� uti ae0. Dial Number i400 (907) 263-7220 T[L[COPICII 41021 BNN•lOs7 . % I, May 18, 1988 Mr. Marvin Dragseth Royal Pacific Fisheries P. O. Box 4609 Kenai, Alaska 99611 Re: Request for Use of Right of Way for Pipeline/City Attorney Opinion Dear Mr. Dragseth: I have reviewed the opinion of Timothy J. Rogers, City Attorney for the City of Kenai, dated May 12, 1988 with regard to your request for use of a public right of way for the effluent pipeline which is a prerequisite to your operation this season as per the directive of the Department of Environmental Conservation. We are of the opinion that the City of Kenai does have the authority to allow you to use the city right of way for your pipeline. We note Mr. Timothy's concerns and believe that all of them can be taken care of contractually or by ordinance. First, it is true that a municipal corporation does hold the streets and public ways in trust for public use. However, as Mr. Roger correctly points out, the state of the law is such that there are no statutes specifically authorizing private use of municipal right of ways nor are there are prohibitions against the municipality granting a private use of a public right of way. As Mr. Rogers concludes, the city assembly can enact an ordinance allowing the use you contemplate. See Boyden 71 N.W. 1099. A -1 l r BIP.CH.'HORTON. BITTNER. PE :ER AND ANDERSON A 0 7 1e""IONAL Col.. 4NAT10N Mr, Marvin Dragseth May 14, 1988 . Page 2 Our review of the available case law indicates that there are a number of distinctions which are made by courts and city councils with regard to private use of a public right of way. First, most of the case law presents situations where the private use of the public right of way actually infringes upon the public use of the right of way. Therefore, in the case cited by Mr. Rogers, Armbruster v. Wildwood, 41 F.2d 623, the construction _of a broadwalk along a portion of a city street which prevented access to a public beach was not allowed. These cases seem to indicate that some private uses of a public right of way amount to public nuisances. Such would clearly not be the case in your instance as the pipeline in question would be buried and would not obstruct ingress and egress to lands owned by the City of Kenai by the public nor any other public use of the right of way in question. In short, a great distinction seems to be made between private uses of public right of ways which present obstructions and private uses of public right of ways which do not present obstructions. In those cases, the question becomes "are the uses unreasonable, and do they make the streets unsafe for public use" 3 McQuillan, Municipal_ Corporations, S 30.74 citingl Pickrell V. Carlisle, 135 Ky. 128, 121 S.W. 1029. McQuillan also notes, at The same section Another point to be considered is whether the encroachment is on the surface of the street or is above or below the surface. Much greater latitude is generally allowed in regard to encroachments above [meaning extremely high) or below the surface of the street ... j Ibid, S 34.74 at 776. Finally, with regard to the authority cited by A McQuillin, it is also clear that a private use of a public right of way is often permitted so long as the appropriate public authority retains the right to use the right of way despite the encroachment by the private user. See Hatfield v. Straus, 189 Ny 206, 214, 82 N.E. 1721 McMillan v. Klaw and Erlanger Co., 107 App. Div. 407, 411, 95 N.Y.S. 365, Kellog V. Cincinatti Trash and Co., 60 Ohio S.T. 331, 350, 88 N.E. 882. As to the individual problems which Mr. Rogers raises, I believe all of them can be satisfactorily answered. First, Jim Cross, who helped engineer and plan the pipeline route, is _ certain that there is enough room within the right of way for the 1 I� r j AIRCH. HORTON. BITTNER. PE: :ER AND ANDERSON A ►nOV95p10PAL COPPOPATION ' Mr. Marvin Dragseth May 141, 1988 Page 2 pipeline despite the language of KMC 18.27 which provides for a specific location for each public utility assigned within a right of way. Second,•you have the ability to indemnify and protect the City of Kenai from any damages or claims resulting from the placement of the affluent pipeline into a public right of way. Third, the use -of the right of way need not be a permanent (i.e. forever) thus enabling the City of Kenai to reserve to itself the right to _use the area should a higher and greater public need arise. in fact, leasing the right of way to you would enable the city to protect itself by way of indemnification, receipt of a nominal payment for the benefit of the public and enableing twenty retain the right t use the right of way at a later date. Marvin, in short, we do believe that the City of Kenai does have the right to authorize you to use the public right of way for a private use. Given the impact of the closure of your operations on the City of Kenai, we believe much public good will derive from the construction of the pipeline. The fact that your pipeline is underground and can actually fit in the existing right of way as well as the fact that a properly prepared document will indemnify the city and allow it to retain the right to use the public lands should remove the concerns of Mr. Rogers with regard to construction of the affluent pipeline which is necessary for you to continue to run your facility in the City of Kenai. Sincerely, BITTNER, ANDERSON els _u 7�� May 25, 2988 Mr. Tim Rogers City Attorney City of Kenai 210 Fidalgo Dr. Kenai, Alaska 99611 Walters & Olson, Inc. insurance 130 S. WIIIoW St. Box 70 Kenai, Ak. 99611 Telex 25.249 907-283.5116 P ,* , fN1A.- ,Icry F pFO, �kFNA► Ref: Royal Pacific Fisheries, Inc. Dear Tim: The usage of City of Kenai right of ways by Royal Pacific Fisheries presents an exposure that cannot readily be addressed by insurance. Although the City can require Royal Pacific to add the City of Kenai to their general liability policy (it already has due to their airport usage) that coverage specifically excludes any type of pollution (sudden and accidental, and gradual). Pollution coverage has not been available for several years due to liberal court interpretations of "sudden and accidental" coverage and what constitutes an occurrence. We suggest that you consider addressing this exposure in a different manner. in the contract, you may wish to include the following items: 1. Conformance with DOT requirements. 2. Conformance with DEC requirements. 3. Daily inspection by Royal Pacific employees of the pipeline route and outfall in the Kenai River and a log kept. 4. A bond or TCD in favor of the City to cover cleanup and/or repairs. This is what the State of Alaska does on the North Slope. If the route is inspected daily during the operating season of 6/25 - 8/30 the clean-up amount wou14 probably be minimal, in the $5,000 to $7,500 range. Please let me know if we may be of further assistance. Sincerely, Kurt E. Olson S dl fir �_1 4} f i. r, PARTIAL VERBATIM KENAI CITY COUNCIL. MEETING MAY 18, 1988 ITEM e. SCHEDULED PUBLIC COMMENT 8-2 Marvin Dregseth/Royal Pacific Fisheries MEASLES: Marvin Dregseth? DRAGSETH: Good evening ladies and gentlemen. I'm Marvin Dregseth of Box 224, Kenai. and tonight you have before you a pipeline that we need to put in. And, ah. what I want to do, I have my city engineer, or engineer here, and I also have my superintendent of construction and also I have Mr. Jim Kross with me from Environmental Services. And at any time that you people would like to ask a question, please feel free to ask these people. they're experts. The thing that I want to say is that we employ at that plant through the summer, 600 people. We have between twelve and fourteen year-round employees and we buy a lot of stuff from this community. And what I'd like to do now is I'd like to turn this over to Mr. Jim Kross so that he can explain exactly what we're doing, the permits we have in place, and so on. Jim... KROSS: Good evening. What Marvin has been talking about is a pipeline that will allow him to discharge the waste water from his plant to the Kenai River. To go in a little bit to the background of this, in previous years he has had a waste water system which allowed him to discharge his liquid waste. ,lust the water that runs on the floor in the plant, to a subsurface disposal system. Unfortunately, the plant has grown to the point where it has outlived the usefulness of that type of disposal system. They have become a little bit too large and a little bit too successful. We are preparing for the 1988 season and attempting to construct a high -density pipeline which would follow the hitahways and the city streets directly to the Kenai River. I have an engineer's 1 - -- - - -- --- r drawings here which I don't think You probably want to look at in detail, but if anybody has questions, I could pass this out. The protect has been approved by the State Department of Environmental Conservation and they have all the requisite permits to construct the pipeline. They have permits from the State Department of Transportation and Public Facilities to construct the pipe in the state's right-of-way. We have a permit In process with the Federal Environmental Protection Agency for the disposal of its water in the Kenai River. The only thing we are lackino at this point is approval from the City of Kenai to use the right-of-way to build a pipeline. It would be identical to the pipeline rioht-of-way that was granted by the State of Alaska and very similar to other rights-of-waY of this nature in other communities. As an example, I Just came back from Dutch Harbor. Virtually all the processors in that community have to transport their fish waste and liquid wastes quite some distance from their plants out to the open ocean and they all use essentially the some technology, plastic pipelines with a pumping system. And, all of these pipelines are buried in city rights-of-waY and State rights -of -way. It's about the only legal way that you can move material along corridors. It's, it's difficult to acquire rights-of-waY across private property. Not because people won't provide them, but it Just becomes so difficult to acquire them over four, five, six or ten different lots. It's not an uncommon system. I think it's very straight- forward. In my opinion it doesn't produce any potential adverse effects on the community. You'll never see it. It'll be buried Just like the gas lines, And water lines, and sewer lines. I think that you'll find that it will provide a benefit to everyone In the community. Can I answer any questions? MEASLES: Any questions from Council? Councilman Ackerly? ACKERLY: Just a couple... how deep are you going to bury it? KROSS: The average depth is probably over four feet. It will be used primarily in the summer time, obviously, and then drained in the winter. L f F. � k 1 4. a d �I ,d. i r- ACKERLY: Yeah, that was MY next question. KROSS: It's a tour -inch high -density polyethylene pipe. The wall thickness is about half an inch, so it's a real high -quality pipeline. ACKERLY: And I presume that you are aware of the corridors that we have set aside for various utilities... KROSS: Yes. ACKERLY: ...inside that corridor... KROSS: The engineers that have put the plan together have worked with the City Engineer and worked with the Department of Transportation and worked with Environmental Conservation to locate this pipeline so that it won't conflict with other existing utilities in those rights -of -way, so that it won't Interfere with any of the spacing for those utilities and should be within all the State and Federal guidelines for separation from potable water supply, both commercial and residential. A lot of effort has gone into this. Probably a period of three and one-half months and design and review and so forth. MEASLES: Councilwoman Monfor? MONFOR: Some questions, that's all. MEASLES: Councilwoman O'Reilly. M' dl O'REILLY: I had a question about "accidents haPPer," and if this materializes. is the City held harmless or would it be. KROSS: We certainly would be happy to do that. I have a letter here from the City, excuse me, from the Company's attorney. I don't necessarily have copies for everyone, but I think it responds to a memo written by the City Attorney that address those particular Issues. Ah, we feel that the line is designed very well and we're willing to stand behind it from that perspective. But it the City requests that we provide some form of 1e0151 assistance beyond what you would find in a right-of-way agreement, I think the company would be happy to do that. Certainly, it is not our Intention to in any way encumber the community or to adversely affect anything that the public would expect out of the use of its right-of-ways. Our interest in using the rioht-of-way is that it's the, virtually the only way we could acquire access to the River. We would have to oross a City street no matter what way we routed this pipe. And the some goes for the State highway. O'REILLY: Is there any cost involved on the City's part? KROSS: No. With the Paying a fee to apply for the permit and the cost of construction is borne entirely by the company. Any damage.. incurred during construction would be borne by the company. We hold the City harmless as a matter of course and the method of construction, so I'd say no. The attorney, the City Attorney might disagree with me in some of those, but... ROGERS: &I-- ..----A Y ._..,..,.a 1 41tp tr% ah.ato t.hwt this is the first time a Y �x l ,1 ROGERS: Ah, I do have in the packet, the Council will see under my report, under, Item 3. fourth item, is the memorandum dated the twelfth. And while I'm talking I would make two inquiries. What is the proposed duration of this pipeline? KROSS: It would be undetermined. We are proposing a permanent use of that right-of-way. Certainly we would be happy to limit that to a reasonable time frame. Ah, the reason for constructing the pipeline is that we have no access to the River otherwise. We have no access to a waste system. In other parts of the country, the wastes that we are disposing of here would easily go into any sanitary sewer system, but there are no sanitary sewers or no sewer treatment plant for us to access at this point. At some future date, if sanitary sewers were available in that area, I'm sure that it would be feasible to pretreat this material and dispose of it in the sewer Just like you would in any larger community. It's not typical for fisheries waste in Alaska to be treated. Ah, there are only two facilities that I'm aware of anywhere in Alaska that actually treat their waste. One is in Palmer and it happens to be a very, very small operation and he has no alternative but to dispose of to a city sewer system. The other one is in Seward and they have their own fish meal plant. But they still discharge the liquid waste as we're proposing to here. So the method of disposal is the standard method of disposal for this type of wastes approved by all the federal and state agencies. ROGERS: Okay. You had alternatives previously? We were allowed by the State of Alaska to utilize a ground disposal system, very much like your septic tank and leach field at home if you live in can area outside of sewers. Unfortunately, that option is very limited in terms of the volume of water that You can attempt to dispose of In that manner. We currently have a permit, we are entitled to use the facility that is in place, but it limits the operation of the plant, especially in the peak of the season. last year we ran into problems and the company got into hot water with the State over how it was handling its L 5 X 1 waste and that precipitated the need to build this pipeline. It's actually been a need for several years, but it's Just that it's been difficult to get through the permitting process and to get the thino constructed. ROGERS: Next, you are not a certificated facility? KROSS: No, we are not. ROGERS: And, how many lots or parcels would be required to buy easements from individuals in order to access your effluent outfali? KROSS: Actually, I don't think that's the issue because we would still have to cross a City street, irrespective of which way we were to po. ROGERS: Aside from a City street under which you would, I assume, ..inaudible.. Do you know how many parcels are involved? Are there three? KROSS: There are probably more than three —five. As far as I know, no more than five. Now we are crossing some private property where there are no other alternatives to rights -of -way. ROGERS: So you've purchased easements for those pieces? KROSS: ie purchased thrum. 5 u KROSS: One. ROGERS: You've acquired easements. KROSS: That's correct. ROGERS: Beyond the memorandum. if I might, beyond the memorandum I really don't have too much to add. I have not had an opportunity to view the memorandum dated the eighteenth from Mr. Dragseth's attorney. Ah, we have had, if you recall, other requests for use of public right-of-way. None have been granted to date that I can recall. The ah, I think Mr. Dolchok was proposing a high- pressure gas line in the public right-of-waY at one time, and was ah, I'm sure if he was goino to eventually be certificated es a public utility, which of course would require our allowing the use of the public right-of-way. Beyond my memorandum comments, the decision is Counoil's. MEASLES: Councilwoman Swarner? SWARNER: Have all the residents of Pirate Lune been notified of this Possibility. KROSS: I'll have to defer to another gentleman here. Mike, have you... MIKE: (from audience, hard to hear) Notified of.... SWARNER: Of a possible pipeline 7 1. L MIKE: For construction in the right-of-waY? SWARNER: Right. MIKE: Ah, not to my knowledge. There, ch. there would only be two detours short of ..inaudible.. I talked to the City about that. Ah, ..inaudible..on detouring on another part of the ..inaudible... that would be put -together with Brown Construction, a contractor ....inaudible... property.... inaudible... KROSS: I think that the direct answer to your question is no, probably all the owners have not been notified. In the course of constructing a facility like this. it is not common to notify the landowner that you're going to build something in the street. Ah, if it were a type of construction where You were to block access to their home or business for a given period of time over an hour or two, it would probably be more common to contact them. But, were talking about a construction technique that will probably no more, wouldn't block a driveway for more than an hour or so. It's a very quick proceaa. It's a shallow trench with a small pipe. So it goes pretty quickly. MEASLES: Councilman Ackerly? ACKERLY: Ummm, I presume that you come tonight asking for a decision from us tonight? KROSS: Yes. we have a particular set of circumstances. The fishing season is pretty much upon us. The construction equipment is staged, the pipe is here and we're ready to go. Ah, we have a limited period of time to construct the line, test it, and receive our final certification from the State of Alaska. If we have to delay for any significant period of time, it could - 8 L W seriously Jeopardize the company's operation this season. I think that although there are some legitimate issues to discuss In terms of the issues the City Attorney has raised, the more common place use of ensements and rights--of-way throughout the State, I think dictate that thto is a pretty normal use. It is A private company, ah, much like ENSTAR or Union Oil, it's Just that we're not certificated by the State. We are not providing status as a common carrier or we're not providing status as a Public utility, but we are still part of the public. ACKERLY: To Keith, I guess. Keith, from your standpoint, not the legal standpoint, but did you guys have any trouble with it at work. KORNELIS: No, the only thing we require is our excavation permit. —inaudible—to maintain the construction specification the City has which Your engineer, who has done a lot of work for the City and well aware of your compaction, backfill, and access to residents along the street as you do the construction. Other than that, as long as You follow our we don't have a problem. ACKERLY: Is it appropriate now to suggest a motion or .... MEASLES: Are there any other questions, Council? MC COMSEY: Could we get a hold harmless agreement in? ROGERS: I would certainly hope that number one, that you would have hold harmless; number 2, you would consider it durational limit on ah. as opposed to a perpetual easement... KROSS: I think... 9 I ROGERS: ....have not had, as you can see from the paperwork we have, we have not researched extensively. We have the memorandum raising the issues, ah. but that may be of concern, we may have some concerns later after further research. But at least, at least the indemnification and _ _ _._ some sort of duration on it or unilateral ability to revoke the permission grunted at that being understood as abeyance. Unilateral right to revoke by the City. KROSS: If I might offer a comment ... We would be happy to provide a hold harmless agreement and the document I passed out this evening fromt he company's attorney specifies that. In terms of the time frame, if we could be assured that these were renewable periods, ah, a reasonable ten or fifteen year initial permit with option to renew. subJect to continued proper utilization of the right- of-way I think would be very appropriate. AN we would be happy to enter into any stipulation you suggest that would make certain that we operate within the constraints of our permits from other federal and state agencies. And that would be typical of the type of supervision that would warrant continued use of this type of a pipeline. The same kind of stipulations are typically attached to common carriers which you see a lot of around here because of this is an oil and gas producing area. ROGERS: I understand your desire to be able to amortize over a period of time, however, I would come down on the other extreme and insist on unilateral revocation by the City of the right to be there for any or no reason. Ah, I don't know what our research is going to turn up. I don't know what the future holds. I don't know what bandwagon will be created with others attempting to be treated the same as to the utilities, and I don't know what problems will be encountered in other areas where we have designated specific locations for specific utilities. So, that would be my comment. I'm not sayino the City would if they had that condition, but they would have the unilateral ability to do so and that would be understood going in... 7 r ROGERS: It may very well be that you would have the amortization period that you want. but it would say be renewal or not at the sole discretion of the City an an annual basis. KROSS: Unfortunately, that would really put the company in a bind because the condition of its permit to operate the plant as a seafood processing plant is based on having access to that Pipeline. As this pipeline is being put into use, the State of Alaska will not callow us to discharge to a ground water absorption system any longer. Therefore, we'll be solely at the mercy of the pipeline for the ability to dispose of our waste water. Therefore, if that pipeline use is restricted or the rioht-of-way is restricted, and we're required to remove the pipeline, then the plant would have to shut down and it could not get a license to operate from the State. ROGERS: I can certainly appreciate your predicament, but I hope you can understand the City's... KROSS: Sure... ROGERS: Ah. getting into bed. so to speak, in a situation that it may not be able to get out of when it has a need to. KROSS: Under what circumstances would you think you'd... ROGERS: Those circumstances I'm not aware of this time... KROSS: l L J r i 11 ROGERS: Because of the time constraints we've had in the presentation of { this. I'm not sayin© that would be the case, but I think the City should reserve that option. ( .s t1 KROSS: If you could suggest language that might allow us to maintain the use, subject to continued ah operation of a system that was in compliance with the State and Federal permit, that would probably resolve part of Your problem... ROGERS: But not all of it... KROSS: Right... ROGERS: You understand what'I'm saying... KROSS: I'm struggling for the language that would accommodate you ROGERS: I understand... You're grasping for more than I am recommending to be given... KROSS: Sure... ROGERS: But it's up to the Council. KROSS: I think the limitation that the City Attorney is proposing would really be a hardship. It would almost preclude the State from offering us the use of that pipeline or continuing to authorize or issue a permit based on that... 1? i ROGERS: The permit would be there and would continue until such time as a revocation , but ah, be as it may, that is MY recommendation. KROSS: Thank You very much for the opportunity and eh, if there are any other auestiong.... MEASLES: Ron, do You have a comment? SUTCLIFFE: (from the audience) He said it was a plastic...should I? MEASLES: Yes, please. SUTCLIFFE: Ron Sutcliffe, 2710 VIP Drive in Kenai. He represented that it was plastic piping and the piping they've been welding on K-Beach Road sure doesn't look like plastic to me, it looks like rusty well casing, but I don't know if that's good or bad. KROSS: You're absolutely right. What he is referring to is a conductor which will be put under the driveways along the K-Beach Road. Because the water wells and some of those buildings are very close to road and the State law requires that any force main, sewer line, or pipeline such an the one we're building. be encased in a steel Jacket or some other type of Jacket where it is less than one hundred feet from a well. So that's the reason for the steel pipeline there. There's one other spot under the highway where we're also, we're boring under the road rather than cutting the road with a ditch. ROGERS: One other matter, Just for the record, and I can appreciate the number of Jobs involved insofar as precedent setting, you have an 13 f. t 4 cI .5 operation outside the city limits of the City of Kenai that will then be piping its effluent into and through the City and that distinction may be of no importance down the road at all, but it may also be, insofar as the precedents, involved. MEASLES: Any further questions of the Council? O'REILLY: I have one in the line with Mr. Rogers' last question. Is there another option for you? KROSS: About the only alternative that we have at this point, if the pipeline right-of-way isn't granted, Mr. Dragseth would have to truck his waste from that location, down to the Kenai River, adJacent to the Salamatoff plant and the cost and the Inconvenience, the difficulty with doing it, would probably limit our ability to function on a normal basis, and may even Jeopardize the permit we have with the State. They really don't like those types of operations because they lead to other continual problems and that was the basis for making certain that this pipeline were designed properly and operational. MEASLES: Further questions Council? Councilwoman Monfor? MONFOR: I just have to speak to this, because I know that this happens and I to me this would be the worst case scenario for the City, worse than anything with this pipeline, is that when you truck that waste water, having the truck have an accident. KROSS: Thank you all for your indulgence. I know you hate to talk about wastes. ACKERLY: Do you understand the motion?? I'm not sure that this includes everything, but I will try. L t� i I would move that the City of Kenai enter into a legal agreement with Royal Pacific Fisheries, to be drawn up by the City of Kenai concerninv the proper installation of a waste disposal system line to the Kenai River, for a period of five years, with renewal options, and to include proper right-of-way and placements, etc., etc., etc. MONFOR: There's a hold harmless... ACKERLY: Huh? And, well, that's one of the etcetera. A hold harmless — tryina to cover the bases. MEASLES: Is there a second? MC COMSEY: I'll second that. ACKERLY: That's rough. MEASLES: Discussion by Council? Councilwoman Monfor? MONFOR: For five years? Okay. I don't have a real be problem with the five years, but I lust want to make sure in my mind that that will not prevent them from getting the 5tate's okay. The five years is a renewable, every five years, like you would .Just come to the Council when your five years is up and gay it's time to renew. KROSS: I think it would depend on the stipulations that the City Attorney attaches to it. If it were the stipulation that we were In compliance with the discharge, we had accurate and 15 L t e satisfactory permits from the State of Alaska, sh, those types of stipulations, I think that they would find acceptable. If that's what you had in mind. ACKERLY= That's one of the etcetera too. It was kind of hidden in there... MEASLES: Councilwoman O'Reilly? O'REILLY: I maybe offering a friendly amendment or asking a question, I'm not sure, but, the resolution that Mr. Ackerly made, ah, was that to pet the City Attorney...I would like to see all of this down on paper instead of etc. Could we make it a resolution to have the Attorney put it in the proper language for us to pass. Is that reasonable... ROGERS: I would take my direction from the Council as to motion as made. As soon as I have it, I'll circulate it to Council prior to the next meeting. O'REILLY: I don't know if that's a different resolution or an amendment to your.... ROGERS: I don't think it need be an amendment, I'll do it... MEASLES: That could delay them starting the project, if they are able to come to an agreement between the City Administration and Mr.- Dragseth. If it has to come back to this Council for approval at the next meeting so I think it might suffice that the Council gives the Administration the direction tonight that it would like to see any pertinent information that the Council would like to see in that agreement and let the Administration go with it and if we don't like what they do with it, we'll ah..... 16 � a e � V T^ O'REILLY: I :agree with that. MEASLES: Ah, yes, Mr. Oragseth? ORAGSETH: The only thing that I have to any is that it's the lath day of May, and I have to be ready to process fish on the loth day of June and we have a pipeline to build, so pleases hurry. MEASLES: Any further discussion by Council or next meeting. Councilwoman Monfor? MONFOR: He can't wait until June lat. So we have to pass this tonight and tell him it's fine, contingent upon... ROGERS: We anticipate that we'll have it done first part of next week. MONFOR: So he can leave here tonight knowing that he can ... ROGERS: If that's direction of Council... MONFOR: permit... ROGERS: and we have administrative, and you're telling Administration to do it, we'll do it. MEASLES: Any further discussion? Clerk call the roll plense. 17 r' rt P I l lylth one ICISSO 0 DO Flsh'prjLlC ii"? .0 �" a *A UY&l 1pseft TWA" 60" w Olusaw"I "OOL , treataunt bu bM ffftd fto ley udl OM In am flaa all* IDSC.0- amlakwo4*00 Wo vaccord" dMON on am opmur DEC, ON go tlae eras firollnowtstunmw• feared ibe tromelldous re&wd bMuls Gi 0 in aftift to " fte. ft *ww raw' a, MWw" ps *0091; I I fish pvco"— am COW "Wo daelag lue6ho to am liver, WWI Oftca no VM toll mud &ad dd OvaWad by MWVW op KaUtor.00 sy"m MA to toc Adeth, 0ewe %pal Id tm, vote an 00 an 4im � .1. luver to ,DEC otficisis 51W " " Woo. No it The 91"Ups betwes§ $50M sod cost MAW ato im ccord" DOP"Mut Of En*v Me com wt Par ter Now" `serf nod :�6u .0*1810fx from a new that bff well was b" COW �l ? F7 A I -Tzj re� OOP gay Ad Le" (Av .141 ;All of iJ I IL - ' `' ;1 ((n/'�J{wI{ lM1 '' v►.�" �' +.M-/'w �if', i• r }}qq�� I is , � 11 t i� rG 1.s t4 0& ij S I, i., v ill I COUNCIL PACKETS I I m mt 6 4, i i 011111ma d go WN d KgrA-ftft ft 1101110ft 111110101 IS PW A" Raw "'Ids jm" WdW 00 *W ANW Wilk: 11.2211,1100 0111KIIIIIIIIIIIIIII0111- stelae Ila* 0*0 ardOef d 7:0 P.M. V"ftmA sued WW Oa etaterted at -we~ 0 me a Chtka efaou tMtrwrn 6.00 OLM. WA 6.00 MO ad aaMwtt AlffJor COWIS, We WArWIP11111 10 4Wd WA VW40421113o4iff. o in fill WWI a i mail, of wp.p A w- 00.000. How" to ems. I two we Vick In go P0. POW WW, Ink"I AGM4 001 CITY 4OLAHVIL - ileQUILAR UUM0 Avg I. me - 7:00 m S. aC"WULED PUBLIC COMMENT (10 Min.) 1. " pacift FWW"W"tmW - PIPIWNIS Contract C. PUBLIC HeAPJN00 - 1. Ord nW" 11260,88 - AIT40ft ke" munlew Code T* 23. Exempt EnV*m Skobstitute Ord, 1260-8e .2, Ordnwoee Jeei-se • wom"Ino Rov/AWA knw -* Can DWAVM - $92a 3. OWlilmfte 1282-85 - Inm4imming WAppro • Barft CRON Doniffiona - $3,021 4.. CWk*m 1283-08, Rvoalng Tables in Para" Hourly Rm" - - a. Ordwor.6 1204-88. AOoWoo AmW &*M e Fy lose -so -falstsi, -m-cre-8-8- ROVIAMS - Run - &:SW $�0'000 7. a 4)f La" 01 Paiparty Tax for FY I NS-89 - 2'7 Male B., Reath Wn 88-42 - Tm ' Mier of Funds - Parloa Doot, Personnd - $8.000 9. RescUlan 88,43 - Tiamfor of Furls tionsrisy - Coro a 6otpa - si 2.s2p 10; R*SOAM 68-44 - Award Old - Cmatructim, Dromp, WOW A 8~ - Coral III Ck*om - Zubeck Me. - $9413,904-21% It. "W%uM 88-45 - Award Slidy Cup * Skftw$k Repairs - vaili Concrete - $15,071.06 12. PASallullon 88-46 - Auftdft Pvtlicllp#ton - Grant 13. "Vqw Apskslkm for Pkillauranillat4t0 Phim A= puldlem The public Is Invited to 44and and poftlinte, imm Rom". CMC I '.s s. e •. AGENDA KENAI CITY COUNCIL - REGULAR MEETING JUNE 1, 1988 - 7:00 PM A. CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call a. Resignation of Councilman Ackerly b. Discussion - Selection of Councilmember 3. Agenda Approval 4. Consent Agenda *All items listed with an asterisk M are considered to be routine and non -controversial by the Council and will be approved by one motion. There will be no separate discussion of these items unless a Council member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. B. SCHEDULED PUBLIC COMMENT (10 Min.) 1. Royal Pacific Representatives - Pipeline Contract C. PUBLIC HEARINGS 1. Ordinance 1260-88 - Amending Kenai Municipal Code, Title 23 - Exempt Employees a. Substitute Ord. 1260-88 2. Ordinance 1261-88 - Increasing Rev/Appns - Senior Day Care Donations - $926 3. Ordinance 1262-88 - Increasing Rev/Appns - Senior Citizens Donations - $3,821 4. Ordinance 1263-88 - Replacing Tables in Personnel Regulations, Title 23 - New Salary Structures and Hourly Rates --5. Ordinance 1264-88 - Adopting Annual Budget - FY 1988-89 6. Ordinance 1265-88 - Increasing Rev/Appns - Runway/Taxiway Overlay - $66,000 7. Resolution 88-41 - Rate of Levy of Property Tax for FY 1988-89 - 2.7 Mills 7 � �h� �rev'wus doeame�tCs) l have been reImeA �e �, insure luj�bili4y awd lon4inuity. t, I I t7 AGENDA KENAI CITY COUNCIL - REGULAR MEETING JUNE 1, 1988 - 7:00 PM I ;' A. CALL TO ORDER 4 1. Pledge of Allegiance 2. Roll Call a. Resignation of Councilman Ackerly b. Discussion - Selection of Councilmember -A 3. Agenda Approval � - - 4. Consent Agenda *All items listed with an asterisk (*) are considered to be routine and non -controversial by the Council and will be approved by one motion. There will be no separate discussion of these - -•t items unless a Council member so requests, in - which case the item will be removed from the F Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. 4 B. SCHEDULED PUBLIC COMMENT (10 Min.) s�T 1. Royal Pacific Representatives - Pipeline Contract C. PUBLIC HEARINGS 1. Ordinance 1260-88 - Amending Kenai Municipal Code, r Title 23 - Exempt Employees a. Substitute Ord. 1260-88 2. Ordinance 1261-88 - Increasing Rev/Appns -Senior "f 3. Day Care Donations - $926 Ordinance 1262-88 - Increasing Rev/Appns - Senior Citizens Donations - $3,821 4. Ordinance 1263-88 - Replacing Tables in Personnel =t Regulations, Title 23 - New Salary Structures and + _ 5. Hourly Rates Ordinance 1264-88 - Adopting Annual Budget - FY 1988-89 6. Ordinance 1265-88 - Increasing Rev/Appns Runway/Taxiway Overlay - $66,000 7. Resolution 88-41 - Rate of Levy of Property Tax _ ' for FY 1988-89 - 2.7 Mills r 8. Resolution 88-42 - Transfer of Funds - Parks Dept. Personnel - $8,000 9. Resolution 88-43 - Transfer of Funds - Inspection/survey - Coral & Cohoe - $12,320 10. Resolution 88-44 - Award Bid - Construction, Drainage, Water & Sewer - Coral & Cohoe - Zubeck Inc. - $243,904.25 11. Resolution 88-45 - Award Bid - Curb & Sidewalk Repairs - Valley Concrete - $15,871.95 12. Resolution 88-46 - Authorizing Participation - Grant Application - Developing Seafood Industrial Park 13. *Liquor Application for Restaurant/Eating Place - Pizza Paridisos D. COMMISSION/COMMITTEE REPORTS 1. Council on Aging 2. Airport Commission 3. Economic Development commission 4. Harbor Commission 5. Kenai Bicentennial Commission 6. Library Commission 7. Recreation Commission S. Planning & Zoning Commission 9. Misc. Comm/Comm E. MINUTES 1. *Regular Meeting, May 18, 1988 F. CORRESPONDENCE 1. *Barbara Crane, Tundra Times - Thanks to Mayor Williams 2. *Alaska C&RA - State Revenue Sharing Entitlement d. OLD BUSINESS H. NEW BUSINESS 1. Bills to be Paid, Bills to be Ratified --2. R quisitions Exceeding $1,000 3. 7rdinance 1266-88 - Increasing Rev/Appns - Swires, Lawton - $823,000 11 L I � LAN 4. Ordinance 1267-88 - Amending Kenai Municipal Code Title 17 - New Date of Application of Penalty and Interest, Delinquent Water & Sewer Bills 5. *Dames of Chance & Skill - Peninsula Learning Resources 6. Approval - Inspection, Surveying, Testing - Coral & Cohoe - Wm. Nelson & Assoc. 7. Discussion - Dena'Ina Pt. Estates Addition #1 S. Discussion - Schedule work Session a. Camper Park - Beaver Creek b. New Building Function - Kenai Bicentennial 9. Discussion - Russian Orthodox Church Repairs I. ADMINISTRATION REPORTS 1. Mayor 2. City Manager 3. Attorney 4. City Clerk 5. Finance Director 6. Public Works Director 7. Airport Manager J. DISCUSSION i! 1. Citizens 2. Council K. ADJOURNMENT ill COUNCIL MEET G OF _ r�i�.rr�r�c�v�rr��rrrr■ �r"�% � ��rrrrrrrrrrr� 'rrrrrrrrrrrrllrrrr■ .� COUNCIL MEETING OF 11 Ff JUNE 1, 1988 INFORMATION ITEMS I - Kenai Borough Minutes - 5-3-88 2 - Resource Development Council Newsletter May 1988 3 - Application for Permit - Kenai River River Floating Dock - Larry Powers 4 - Alaska C&RA - REDI Application - Denial 5 - Kenai Borough, Solid Waste Division Landfill Plans 6 - To DO List - 5-18-88 7 - To DO List - 5-25-88 6 - Comm/Comm Application - Tom Kircher 9 - Senior Citizen Grant Application - Nutrition & Supportive Services 10 - Forget He Not Grant Application - Adult Respite/Day Care 11 - Kenai Borough Waste Disposal Comm. Agenda 6-1-88 12 - Transfer of Funds Under $1,000 May 1988 Jr S� 1 ti ia.1�0'=122p�a .a• .fl May 23, 190 To: Mayor Williams, Council Members, City Employees, and the Residents of the City of Kenai Subject: Resignation The following is my letter of resignation. I want to thank all of you for your support and consideration during my three terms as a City of Kenai Council member. It has been a challenging and memorable learning experience. Ali of you have been tolerant of mg shortcomings and supportive of many of my ideas and to say the least this makes the job worthwhile. I wish everyone of you the very best in all future endeavors and I know with confidence that you will continue to make the City of Kenai one of the very best places to live. This resignation is effective May 30, 1988. Sincerely, Tom Ackerly r— A01ro" 7 i CA Mag 239 1191118 To: Mager Williams and Council Subject: Replacement at vacant Council Seat I vY, would like to add mg two cents to the process of selecting a ti `4 I-N! placement to fill the Uncont Council positiono't he October election a n member will be elettedo In the Interim a uerg capable, qualified. Up eNperlenced sm-councliperson Mrs. Sallie Sallie should be gluen prieritg consideration. She Is willing to same and obulouslg requires ~little or no preparation to bring her to full working '$* 699d. Rise. would sincerelg hope that Sallie's consideration for the uaceneg would not hamper or preclude her from running In the 16111.919 ,post selections we hove sometimes stipulated that the appointed person should not desire to participate In the neat ele ction. In mg V,, 11 .. I opinion It does not make sense to stif a a well -qualified ad candidate bg them to forfeit their willingness to some. The Imagined accrued benefit Is so Infinitesimal In a municipalitg such as the C tg of Kenai-- that the supposed benefit should not be a criteria for soaction. Thank gou for pour patience and Indulgence In this Important matter. Incere1g, 7X wl. erIV Wp ON. r i CITY OF KENAI "oil eapd4d 4 4" M9110NA0 W M,AMM Mitt ULOWNE ttii.7M MEMORANDUM TO: Council Members City of Kenai J� 8R I li J. Rogers, City Attorney of Kenai DATE: May 25, 1988 RE: Marvin Dragseth/Royal Pacific Fisheries Attached for your information and edification, please find the following documents: 1. 5/24/88 TJR memo to WJS commenting on proposed changes requested by Dragseth's counsel to the utility permit. 2. Draft "City of Kenai Utility Permit" 3. 5/24/88 T. Petumenos letter outlining requested changes in permit. 4. 5/18/88 J. Lowenfels letter to M. Dragseth which was distributed to the Council during May 18, 1988 Council Meeting. 5. 5/25/88 K. Olson, Walters A Olson, Insurance, letter to TJR regarding general liability coverage. 6. 5/18/88 Council Meeting Partial Verbatim regarding Royal Pacific Fisheries. 7. 5/24/88 Peninsula Clarion newspaper article entitled, "Fish Processor Slapped with Fine," and regarding proposed pipeline. TJR/elf - Attachments gr�uobt CITY OF KENAI MORO W 1UAI,AU8U IMI TAURMNE 208. 76 o MEMORAJ!RtM TO: Wm. J. Brighton, City Manager ity of Kenai PR :A Timothy J. Rogers, City Attorney City of Kenai DATE. May 24, 1988 RE: Royal Pacific Fisheries/Marvin Dragseth At the May 18, 1988 Council Meeting, Council directed this office to draft a permit allowing Mr. Dragseth's pipeline on Pirate Lane. On May 19, 1988, we drafted the document and faxed (the next day) the draft agreement to Tim Petumenos, Mr. Dragseth's counsel in Anchorage. On May 24, 1988 (the day this memorandum was dictated), at 10:35 a.m., Mr. Petumenos telephoned this office to discuss and object to some of the clauses in the permit. Mr. Petumenos had with him in his office during our (speaker phone) conversation the representative from Royal Pacific Fisheries, who addressed the Council at the May 18, 1988 Council Meeting. Their objections and comments are as follows: e. Fee - They indicated that no fee was discussed at the Council Meeting and they object to any fee other than a nominal consideration for the document, such as one dollar ($1.00). C. Renewal - They object to the total term as indicated by this paragraph as ten years and asked for successive five-year periods for an indefinite period of time, i.e. in perpetuity. O. Reservation -of Rights - They object to this clause and ask that it be stricken. H. Abandonment - They request that the last paragraph be changed so that abandonment would require non-use for a period of five (5) years, rather than one (1) year and would read as follows: t dl I I i "H. ABANDONMENT: - I Upon abandonment of the pipeline, PERMITTEE agrees to in remove pipeline from the CITY right-of-way, a manner fit. conforming to the applicable sections of this permit. PERMITTEE, i.e. Royal Pacific Fisheries and Marvin Dragseth in his individual capacity, shall be solely liable of the financial cost of removing the abandoned . pipeline. Abandonment shall be deemed conclusively established in the event PERMITTEE's facility, Royal Pacific Fisheries, located on Ralifornsky Beach Road, I, ! fails to discharge seafood processing waste through the _ - pipeline for a period of gkve _Lj,L-xq-gKe (ONE YEAR, OR UPON SALE BY ASSIGNMENT OR TRANSFER UNLESS PREVIOUSLY . CONSENTED TO IN WRITING BY THE CITY]." I J. Waiver - They want to add the Council or the { Council's delegate as the determining body or person as to whether or not there was a waiver. in reviewing the document and I my notes, immediately subsequent to the telephone conversation it i appears to me that Paragraph "R" immediately below takes care of i - i' their request as does Paragraph "J." 0. Insurance - They object to the requirement of the City being named as an additional named insured and maintain that it would create an absolute nightmare with their insurance -. company to comply with this provision. They have a general liability policy and feel it should suffice. P. Termination of Permit - They object that a breach does not have to be material. R. Previous Easements and Utility Permits - Anchorage counsel objects to this provision and asks that it be deleted or in the alternative, that it be changed so that certificated 4 utilities are required to use the easement consistent, with and presumptively subservient to, the use by Royal Pacific Fisheries. Y. Attorneys Fees - Royal Pacific's attorney asks that this provision be changed so that either Alaska Rules of Court, No. 82, Attorney's Fees be made applicable, or that attorney's fees be awarded to be prevailing party, rather than the City being the only party awarded fees. While that was the end of the comments, suggestions and criticisms made by Royal Pacific Fisheries' Anchorage counsel, I _ informed him that if he had any other materials, they could be 1 ---------- - - - - - i s z r t l I faxed to us and I would attempt to review them this evening and circulate them in a timely manner through the administration, and to the extent possible, the Council. Anchorage counsel stated that he would be telephoning me tomorrow morning regarding this matter. The City's legal concerns regarding the suggested changes to the document are set forth below. The City Legal Department has no problem with nominal consideration in "Paragraph B" or with "Paragraph d" involving the City Council or its delegate determining whether or not a waiver existed. We may be able to work around the requirement of "Paragraph O" so that the City is not a named insured, but would reserve judgment until consultation with our insurance broker. - -- - We agree that "Paragraph P" should require that a breach be material but the Council should not be the determining body as to the materiality of a breach. The "Paragraph Y" provision that would provide for prevailing attorney's fees, or make this provision one incorporating Alaska Rules of Court, No. 82 is acceptable. - - I would recommend against a document incorporating changes in other provisions. The reasons for not accommodating Anchorage counsel for Royal Pacific Fisheries' requests, as to the remainder of the objections to the document as prepared by the City, are as follows: C. Renewal - The Council specifically directed that the term be for five (5) years, with an option to renew. There was no discussion of successive renewals or renewals in perpetuity. I believe that granting a right of renewal past a term of ten years would be contrary to Council's wishes and an ultra vires act. 0. Reservation of Rights - This clause is virtually identical to one used by the State when they granted Mr. Dragseth's permit for the pipeline. I see no reason why the City should have any less rights than the State. Furthermore, it has been the City's consistent policy to require even certificated utilities to relocate their facilities when the City requires. To allow an non -certificated utility to get around standard policy sets a very dangerous precedent. We are involved in complex litigation over the issue with several utilities and I - see no reason to add another potential plaintiff. L r- IL I H. Abandonment - I would recommend a compromise of two (2) years of non-use. It is possible that the cannery might miss a season and want to operate the next year. Five years could be a long time to put up with a potential problem in the right of way. R, Previous Basements and Utility Permits - Dragseth's own engineer assured the Council that there is plenty of room in the right of way for its' pipeline and all the utilities that now or may in the future exist. I fail to see why they are objecting to this provision, Further, the utilities are already litigating the necessity of relocations and any further obstacle to relocation is undesirable. Remember, Dragseth's pipeline is a non -certificated and has no rights under Title 42 of the_Alaska Statutes. To voluntarily place him in as good a position as the utilities would be unwise. Please inform this office at your earliest convenience which provisions, if any, you would like changed in the permit. I anticipate Mr. Petumenos will be calling soon and Mr. Dragseth is anxious to get started with installation of the pipeline. -4- a _tt- 1' fr' CITY OF KENAI UTILITY PERMIT The City of Kenai, acting by and through its Acting�y Manager, hereinafter referred to as the CITY, and pursuant to the City of Kenai's home -rule powers, its Charter and provisions of the Kenai Municipal Code, hereby grants a utility permit to Royal Pacific Fisheries and Marvin Dragseth, individually, hereinafter referred to as PERMITTEE, permission to construct, install, and thereafter perform routine maintenance, use and operate a discharge pipe, carrying seafood processing wastes, hereinafter called PIPELINE, as follows: Across, along, or under property of the CITY, within the utility corridor right-of-way located on pirate Lane and crossing Watergate Way, at the intersection of Pirate Lane and Watergate Way within the City of Kenai, Kenai, Alaska, in strict performance with the plans, specifications, and special provisions attached hereto and made a part hereof, and not otherwise. A. TERM: - The term of this permit shall be for -a period of five (5) years, commencing June 1, 1988 and ending May 31, 1993. B . PERMITTEE agrees to pay to the CITY•tha-amount of $ per year, payable on or before July 1 fOif every year this permit is in effect for the right to install the pipeline in the City of Kenai's right-of-way. Reimbursement shall be paid by check, cash, or money order, made payable to the City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska, 99611. C. BENEWALs PERMITTEE shall be entitled to renew this permit for a period of five (5) additional years commencing June 1, 1993 and ending May 31, 1998, under the following terms and conditions: 1. PERMITTEE shall notify the CITY in writing of its intention to renew the permit not less than ninety (90) days prior to May 31, 1993. Notice to the CITY shall be in writing and delivered to the City of Kenai at 210 Fidalgo Avenue, Kenai, Alaska, 99611. - 2. PERMITTEE shall only be eligible for renewal of the permit upon a showing that PERMITTEE Wor his facility located on Kalifornsky Beach Road,-- e Kenai '` 1� .. 1 { Peninsula Borough, has not, during the time the pipeline has been installed, been in violation of any f,ederal, state, or e° local ordinance, law or regulation now or/ natter l¢. existing, concerning the disposal of was t'r' D. ISMLATIONs j By accepting this permit, PERMITTEE agrees, prior to j construction, to obtain and comply with all permits which may be required by the City of Kenai Municipal Code. PERMITTEE further fff agrees to install pipeline at a minimum depth of four (4) feet and in such a manner as to not conflict with other utilities within the right-of-way which are either in place or may be - - - placed in the future. 1 -.. PERMITTEE agrees that the CITY is in no way liable or in any way required to contribute to engineering or feasibility studies or work which may be required for installation, maintenance, removal or relocation, of the pipeline. PERMITTEE agrees to comply with any Alaska Statutes and/or ' Administrative Code provisions for the installation of pipelines. { Ef The entire cost of maintenance operations of the pipeline are to j be paid for by the PERMITTEE, and the said pipeline shall comply with all applicable codes, regulations, statutes, and ordinance. F. $UBLIC USE: The PERMITTEE's construction, installation, maintenance, and operations of the facility shall be accomplished with minimum interference, interruption of the use, operation and maintenance of the CITY's right-of-way and/or public facility and shall not endanger the general public in its use of the public property. G. RESERVATION OF RIGHTS: j The CITY in granting this utility -permit, reserves the right to use, occupy, improve, and enjoy its property for all permissible purposes and in such manner and at such times as it deems necessary, the same as if this instrument had not been executed by the CITY. If any such use by the CITY shall at -any time necessitate any change in location or.manner-of use of the pipeline, or any part thereof, such change, alteration, or ,s f q c c S i �• y relocation, shall be made by the PERMITTEE at the PERMITTEE's sole cost. Such change, alteratiot; relocation shall be made within thirty (30) days of written! '�aFan made by the CITY to PERMITTEE. H. Upon abandonment of the pipeline, PERMITTEE agrees to remove pipeline from the CITY right-of-way, in a manner conforming to the applicable sections of this permit. PERMITTEE, i.e. Royal Pacific Fisheries and Marvin Dragseth in his individual capacity, shall be solely liable for the financial cost of removing the abandoned pipeline. Abandonment shall be deemed conclusively established in the event PERMITTEE's facility, Royal Pacific Fisheries, located on Kalifornsky Beach Road, fails to discharge seafood processing waste through the pipeline for a period of one year, or upon sale by assignment or transfer unless previously consented to in writing by the CITY. I. EXPENSES: The PERMITTEE, by these presents, accepts notice and agrees that any expenses or damages incurred by.'.tPe PERMITTEE through the abandonment, removal, reconstructioni/!,Dx,,,�alteration of any public facility, or incurred by said PERMITTES'as'a result of this disclaimer, shall be borne by said PERMITTEE at no expense whatsoever to the CITY. J. WAIVERt The waiver or breach of any terms or conditions of this utility permit or provisions of the Kenai Municipal Code by the CITY shall be limited to the act or acts constituting such breach and shall never be construed as being a continuing or permanent waiver of any such term or condition, unless expressly agreed to in writing by the parties hereto, all of which shall retain in full force and effect as to future acts or happenings, notwithstanding any such individual waiver or any breach thereof. K. WAIVER AUTHORITY: Only the City Manager of the City of Kenai, or his delegate, shall have the authority to waive any term or condition contained herein. 3 U t L. ASSIGNMENT: The PERMITTEE shall not assign or trans any of the rights tce W d ication to and authorized by this utility Permit . Rqttf Wli�li 44,i, Ok, not approval by the City of Kenai, which appf unreasonably be withheld. M. ENTRY: PERMITTEE shall give the CITY not less than ten (10) days prior written notice, unless otherwise agreed to by the parties hereto, of the PERMITTEE's intention to enter upon the CITY's property for the purpose of maintenance, reconstruction, altering or removal of thepipeline, and provided further, that any instance of sudden emergency requiring prompt and immediate action to protect the public safety, or to mitigate damage to private or public property, no prior notification to the CITY will be required by the PERMITTEE. The PERMITTEE shall notify the City of Kenai and the City of Kenai Police !t ant of the location of the emergency and the extent work �1;p 2 the most so expeditious means of communication as . so a- " q"S" , reasonably possible to do so, and the PERMITTEE shall take such'meitsures as are required to protect the health and safety of the public adjacent to the pipeline or users of the right-of-way for the duration of such emergency operations. N. ;NRENVIIEMCATIONt The PERMITTEE agrees to forever indemnify the City of Kenai including its agents and contractors, against, and save them harmless from, all liability for damage to property, or injury to or death of persons, including all costs and expenses incident thereto arising wholly or in part from or in connection with the existence, construction, alteration, maintenance, repair, renewal, reconstruction, operation, use or removal of the said pipeline. O. INSURANCES PERMITTEE, at the expense of PERMITTEE, shall keep in force during the term of this permit, insurance issued,by responsible insurance companies authorized to do business in Alaska, in forms, kinds, and amounts as determined and directed hereinafter for the protection of CITY and/or PERMITTEE, including, but not limited to, such provisions. insurance required hereunder shall be subject to the sole determination of the CITY as may require that CITY be named an additional insured or loss payee and waiver of subrogation against the CITY. 4 L.J ' Upon obtaining all insurance required, in the forms, kinds and amounts directed to be procured, PERMITTEE shall deliver all policy originals or duplicate originals and endorsements thereto - to the CITY for incorporation within this agreement as attachment I' thereto. In any event, PERMITTEE is qffj •z ence to exercise rhis agreement _ any of the rights and privileges grant until such time as all insurance directed add required to be furnished by PERMITTEE is in full force and effect. PERMITTEE expressly understands and agrees that any insurance t protection furnished by PERMITTEE hereunder shall in no way limit its responsibility to indemnify and save harmless the CITY under - - - - the provisions of this agreement. - --- ' -- . #. No policy of insurance shall be cancelled or amended with respect to the CITY without thirty (30) days written notice by registered - I or certified mail to CITY of the insurance company. Until otherwise directed in writing by the City Manager, PERMITTEE shall provide certificates of insurance within thirty (30) days of the date hereof as follows: Comprehensive General Liability Combined Single Limit �•j3odii.y„Injury and Property Damage ) C vk�rinoo -Both Pipeline and Fishery Fac_iility $ P. TERMIN ION OF PERMIT: Upon a showing of any violation of federal, state, or local regulation law, ordinance or statute, concerning the disposal of waste products, through the pipeline or at the Royal Pacific Fisheries facility, or upon breach of any term of this permit, the CITY may, at its sole discretion, terminate this permit and require PERMITTEE to remove said pipeline from the CITY's right- of-way. In the event the CITY desires to terminate this permit, - i it shall notify PERMITTEE in writing of its intention to do so, setting forth the allegations and reasons why it desires a termination of the permit. Upon receipt of such CITY's notification, PERMITTEE shall have ten (10,) days in which to respond to CITY's allegations. Upon subm*asion of PERMITTEE's response, the City Manager, shall within 't6h',(10), days, consider " the response and make a final decision thereon. Upon final decision, the CITY shall notify PERMITTEE in writing of the City Manager's decision. If PERMITTEE is required to remove the pipeline, he shall do so within sixty (60) days of notification. l 5 L r- Q . RIGHT OF ENTRY PERMITTEE agrees by entering onto the CITY's property, within the right-of-way, to indemnify the CITY and tractors of all costs, tangible or intangible that woul4*11 tractors of any delay in a construction project caused . o"4e under this permit. R. Zgxyt0U8 EASEMENTS AND UTILITY PERMITS: This permit is subject to all previous easements and utility permits within the right-of-way and any damage to any other utility facility, shall be the PERMITTEE's sole responsibility. The PERMITTEE further agrees to subordinate any into is he may have in the right-of-way to any certificated utilithich may desire to place a utility facility within the CITY's right-of-way corridor and as part of such subordination to reloepte.he .,,pr y pipeline to accommodate the utility if equired✓ - M. c•� . S. AS GUILTS: `�o�iQ",_�;� PERMITTEE may be required, in the CITY's sole discretion, within thirty (30) days of completion of any improvement placed upon or within the right-of-way described hereii��r "�p� dggver to the CITY as -built drawings showing the location �atid.,4:�pkitruction of specifications of the improvement. T. PL S: Blue -line drawings developed by Mike Tauriainen, P.E., dated February, 1988 and drawn by H.S., entitled "Project No. 87142" are attached hereto and are specifically incorporated within this permit as if set forth herein. PERMITTEE agrees to construct the pipeline in conformance to these plans attached hereto. U. TRAFFIC CONTROL: PERMITTEE shall provide, during the duration of the construction, adequate signing, barricades, and traffic control devices conforming to the latest revision of the Alaska Traffic Manual. PERMITTEE shall maintain two-way traffic.�t Aj: times when feasible. PERMITTEE shall have no parked equipment left upon the road surface at any time. V. REFy-SEEDING AND TOP _SOIL-: PERMITTEE shall replace any topsoil lost as a result of construction under this permit. Re -seeding of all slopes HI Jf 1 I disturbed by excavation shall be done at thw j 9 TEE's expense. PERMITTEE shall re -seed as per the "Re-vegeCe�ttiiyide for Alaska" printed by the State of Alaska Cooperative Lxtensive Service. { W. CLEAN-UP RESPOUSZBI14T.TY1 I PERMITTEE or his contractor shall be responsible for winter and spring maintenance of the road shoulders, ditch lines, back slope and road surfaces that have not been left in a neat and clean ` condition and satisfactory to the City of Kenai City Engineer. Upon completion of the work within the CITY right-of-way, PERMITTEE shall remove all equipment, dispose of all waste material and shall leave the premises in a neat and clean_ condition, satisfactory to the City of Re City Engineer. PERMITTEE shell replace all driveways, st2d5 it6reections, in kind. All signs damaged or removed shall be sliced in kind by the PERMITTEE or his contractors to the CITY's standards. X. ZORUM SELECTIONS - In the event either party to this permit shall file an action (lawsuit) arising out of any dispute concerning this permit, venue for the lawsuit shall be within the Third Judicial District at Kenai, Alaska. Y. ATTORMEY'S PEES: In the event of any civil action (lawsuit) arising out of this permit, PERMITTEE agrees to pay the CITY's full attorney's fees in the event the CITY is adjudged the prevailing party in the action. Z. WISPECTION: PERMITTEE agrees to reimburse the CITY f.pr"-dual:costs of inspection and testing as required by performance of the work proposed by the PERMITTEE. The scope of inspection testing shall 4 be determined by the City Engineer of the City of Kenai. Costs billed to PERMITTEE shall be the actual CITY costs incurred while performing inspection and testing. I , 7 �F i li 6. r t. r 111111 IN WITNESS WHEREOF, the parties he have hereunto set their hands, the day and year stated in. vidual { acknowledgments below.ri CITY OF KENAI INDIVIDUALLY: By: Marvin Dragaeth STATE OF ALASKA By: Wm. J. Brighton City Manager PERMITTEE: ROYAL PACIFIC FISHERIES By• vin Dragseth of . Pacific Fisheries N. ) as. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of May, 1988, MARVIN DRAGSETH, individually and in his representative capacity, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument. Notary Public for Alaska. My Commission Expires: STATE OF ALASKA THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of May, 1988, WILLIAM J. BRIGHTON, City Manager of the City of Kenai, Alaska, 8 1 being personally known to me aving produced satisfactory evidence of identification, a r15M fore me and acknowledged the voluntary and authorized) Id4Xori of the foregoing instrument on behalf of said City. Notary Public for Alaska. My Commission Expires: Approved as to form by City Attorney Approved by Acting City Mwnaj!;�Jn 0 f� LAW OFFICES I� BIRCH. HORTON, BITTNER. PESTINCER AND ANDERSON A PROFESSIONAL CORPORATION I It Ili? WEST 5EV6NTN AVENUE • ANCHORAGE. ALASPA 99501 TELEPHONE 19071 276.1660 • TELECOP16R 1007) 2713•8a22 • TELEX 26-356 ^ " I ` �I AEVIN J. ANDERSON AIM PUNK STANLEY T LEM$ 8149111DAN {TAICALANO•• ♦IRBT NATIONAL NAHN eUILO1ND ' LLOTO V ANDERSON-- CRIC A. 9159N•• JLFPALv R. LON[NILIs•6 JONATHAN A. TILLINONA8T PIR T NATIONAL N L INANNSTREET, U16.0UITE HO 311 ' WANN L WL[T JOfiPN W EVANS•• J[PIRLV U. MILLtR1 DANIEL IN INCSTLANURO FAIRNANAN. ALANMA Gpt01 RON1l0 0. NIRCYII 111LL1AN W OARN[M 1/1CNA[L J. PARI{t T. N[NRv WIL{ON IO9 - WILLIAY It.NRTN[MT JONN W DR100{'• SUZANNE C. PL6TINO9401 TELCCOPIC16R 100PI011 45 •6s•OOss AATNR►N A NIACA RICHARD O. NAOOART•• TIYOTNv J. P{TUM[NO{ " CORv R, NOIIOtsON "AL N. NOfTON•• NARCV M. R[NR[NOLRt RODNEY N. CAR„AM•• MARC W JIINt 11ICN11191. V R[Y{INO ONE 69AUAGRA PLAZA. 9UITt 301 yi r JOSEPH Y. CMOM{III•* PANEL^ R, A[LL[v [L18ANLT11 N. Ross,. . JUNEAU. ALANAA NNNO/ , PATWCA COLL IIINOV R. LORN{LRG•• L NUOO 4IUPSON O.C. RAA ONLY loot$ s60•foGO O.C..90fto ALwf.A R0. " I T[LiCOP1tR loot$ NG8.9o1A PAUL L• DILION OARv R. LLTGNM {TC/NiN R 80R[N{LN ALL OTN[Af Aufr. f.A ONLT !� " lose CON„tOT/CUT AVg., N.W. - - SUITE 1800 WAGNMOTON. O.C. f9paq Writer's Direct Dial No. IRotl eeG•e000 (907) 263-7219 TE1ACOP1601 local 029•10117 May 24, 1988 } Timothy J. Rogers, Esq. VIA TELECOPIER City Attorney City of Kenai 210 Fidalgo Avenue =� Kenai, AK 99611 •=r ,. ' Re: Marvin Dragseth - Proposed Pipeline Permit Dear Tim: f - I have redrafted the paragraphs that we discussed on the phone today with the modifications that we would propose on behalf of Royal Pacific Fisheries, Inc. Thank you for your r prompt attention to this matter. As discussed on the telephone, time is of the essence in this matter since construction of this system is necessary to begin operations in Kenai consistent with the coming fishing season. It was our understanding that the i construction was to proceed while we -worked out this agreement j according to the members of the City Assembly. i I have only included those paragraphs for which we have some f i modifications to propose. First, we would request that the 4 agreement be between the corporate entity and the City. We would 4 request that the first paragraph be amended accordingly. There- after, our changes are as follows: B. PEE: i PERMITTEE _ agrees -to pay -to the- -CITY- -the 1- - - - - - amount of ONE DOLLAR ($1.00) per year, payable on orbefore July 1 for every, -ye_ar i this permit s in effect for the right to install the pipeline in the City of Kenai's right-of-way. Reimbursement shall be paid by i1 check, cash, or money order, made payable to INNJ y ,I . 1. ' } s i BIRCH. HORTON. BITTNER. PESTINGER AND ANDERSON A PROI959110NA1 co*ro.A..oN Timothy J. Rogers, Esq. May 24, 1968 Page 2 C the City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska, 99611. C. RENEWAL: PERMITTEE shall be entitled to renew- this permit for a period of five (S) additional years commencing June 1, 1993, under the following terms and conditions: 1. PERMITTEE shall notify the CITY in writing of its intention to renew the permit not less than ninety (90) days prior to May 31, 1993. Notice to the CITY shall be in writing and delivered to the City of Kenai at 210 Fidalgo Avenue, Kenai, Alaska, 99611. 2. PERMITTEE shall only be eligible for renewal of the permit upon a showing that PERMITTEE and/or his facility located on Kalifornsky Beach Road, within the Kenai Peninsula Borough, has not, during the time the pipeline has been installed, materially been in violation of any federal, state, or local ordinance, law or regulation now or hereinafter existing, concerning the disposal of waste materials. G. RESERVATION OF RIGHTS: (stricken) H. ABANDONMENT: Upon abandonment of the pipeline, PERMITTEE agrees to remove pipeline from the CITY right-of-way, in a manner conforming to the applicable sections of this permit. PERMITTEE, i.e. Royal Pacific Fisheries, Inc.., shall__ be_ solely liable for .- the financial cost of removing the abandoned pipeline. Abandonment shall be deemed conclusively established in the event PERMITTEE's facility, Royal Pacific Fisheries, located on Kalifornsky Beach Road, fails to discharge seafood processing waste IBA I= I I , BIRCH. HORTON. BITTNER. PESTINCER AND ANDERSON A P110F[O6IONAL COPPOPATION Timothy J. Rogers, Esq. i May 240 1988 Page 3 through the pipeline for a period of five (5) ! ' - years. K. WAIVER AUTHORITY: Either the City Assembly or the City Manager,-�^ or his delegate, shall have the authority to waive any term or condition contained herein. -- Royal Pacific Fisheries, Inc. shall have the right to request such a waiver from the City Assembly. 0. INSURANCE: PERMITTEE shall keep in force during the term of this permit a general liability policy which shall include coverage for appurtenant structures and pipelines offsite. P. TERMINATION OF PERMIT: Upon a showing of a material violation of federal, state, or local regulation law, ordinance or statute, concerning the disposal of waste products, through the pipeline, or upon breach of any term of this permit, the t CITY, at its sole discretion, may terminate the permit and require PERMITTEE to remove said pipeline from the CITY's right-of-way. in the event the CITY decides to terminate this permit, it shall notify PERMITTEE in writing of its intention to do so, setting forth the allegations and reason why it -- -' desires termination of the permit. Upon receipt of the CITY's notification, PERMITTEE shall have ten (10) days with which to respond to the CITY's allegation. Upon submission of PERMITTEE's response, the City Council shall, within ten (10) days, consider the response and make it a final decision upon whether --there was a breach- and whether - - --- - -- - --- the breach was so material as to require the -------„-:` - dismantling of the _pipeline. - Upon final decision, the CITY shall notify the PERMITTEE in writing of the City Council's decision. This decision shall not be arbitrary or i t f f` i BIRCH. HORTON. BITTNER. PESTINGER AND ANDERSON A P001968I0NAL CONDONATION Timothy J. Rogers, Esq. f May 24, 1988 Page 4 r. 1 capricious. If PERMITTEE is required to remove the pipeline, he shall do so within sixty (60) days of notification, assuming weather conditions and access permit. Q. RIGHT OF ENTRY: [stricken) R. PREVIOUS EASEMENTS AND UTILITY PERMITS: This permit is subject to all previous easements and utility permits within the right-of-way, and any damage to any other utility facility caused by the PERMITTEE shall be the PERMITTEE's sole responsibility. The PERMITTEE further agrees to subordinate any interest he may have in the right-of-way to any certificated utility which may desire to place a utility facility within the CITY's right-of-way, only to the extent that it is unreasonable for any such certificated utility to use the right-of-way consistent with PERMITTEE's current use. In such event, PERMITTEE shall have the right to relocate the pipeline to accommodate the utility. Y. ATTORNEY'S FEES: In the event of any civil action (lawsuit) arising out of this permit, the parties agree to pay full attorney's fees to the prevailing party in the action. Thank you for your attention to this matter. I will call you tomorrow to determine where we stand. Very truly yours, BIRCH, HORTON, BITTNER, CHEROT AND AND SON ? Timothy Petumenos- TP:srb r •• C DISTRIBUTED TO COUNCIL AT 5/18/88 COUNCIL MEETING BY ROYAL PACIFIC FISHERIES LAW Orriecs REPRESENTATIVE. TJR BIRCH. HORTON. BITTNER. PESTINGFR AND ANDERSON A PROreSGIONAL CORPORATION .187 WCST SCVCNTN AVCNIlC ' ANCNORAOt/ ALASKA 09501 • TCLCPNONC 19071 R76.1550 - TCL9C0P11tR 19071 276-Rat8 - TELC% 2e-3ee KCVIM J. ANOCRSON 1UM OUNN STANLCY % "WS SMCMOAN OTRICKLANO'• FIRST NATIONAL SANK SUILeINe 04TO V ANOCRSO"" CMO A, CACAO' JCFPROI S. LOWCNICLS" JONATHAN K. "LUNONAST 100 CUSHMAN sTRCCT. SUITC SN WAN" C. 041"T J♦ONAM YK CVA"S" JCFFRCT M. MILLCR' OANICL W WCSTCROURO PAIRSANNS. ALAONA 09701 RONA►D O. 01"CM" TINUAM TC DARNCR' MICMA[L J. FAR139 R MCNRT WILSON 40071 ASS•leee o1LL1AM 11. 01TTNCR" JON" R ORIOOS" SUCANNC C. PCiTINOC"" TLLCCOPICR 1e071 460-0990 RATMIITN A, SLACK RICMARD O. MAOOARN' TINOTNT A PCTUNCNOS �.- CORT R, SOROCSOM Be" R. MOUTON" NARCY N. RCNSCROCR' ONS SCALASKA PLASA. GU119 301 ROOMp R CARMAM" MARL YO JUNC MICMACL M RCUSINO JUNRAU. ALASKA 09001 JOSCPM W. CMOMS"1'9 PAMCLA A KCLW CUMSCTN M. KOSO" '",O. 040 ONLY 19071 see-11600 PATRICR S. COLS MIKOT R. KORNRCRO" R SUOD 01M.00M 6-04- INS ALA..► OAO T94.9COP44 40071 806.0014 PAUL L OILLON OAT R LCTCMCR STCPNCN R SORCNSCN A►► 0144940 A40KA OAR ONN �- $100 COMMCCTICLIT AVC.. N.W. SUITC 1800 wA0MIM0/ON. D. 0. SOOSo Writer's Direct Dial Number 12e41 esR-Rsoo (907 ) 263-7220 TRLtcoPlcR loon ess-I047 May 18, 1988 Mr, Marvin Dragseth Royal Pacific Fisheries P. 0. Box 4609 Kenai, Alaska 99611 Re: Request for Use of Right of Way for Pipeline/City Attornev Opinion Dear Mr. Dragseth: I have reviewed the opinion of Timothy J. Rogers, City Attorney for the City of Kenai, dated May 12, 1988 with regard to your request for use of a public right of way for the effluent pipeline which is a prerequisite to your operation this season as per the directive of the Department of Environmental Conservation. We are of the opinion that the City of Kenai does have the authority to allow you to use the city right of way for your pipeline. We note Mr. Timothy's concerns and believe that all of them can be taken care of contractually or by ordinance. First, it is true that a municipal corporation does hold the streets and public ways in trust for public use. However, as Mr. Roger correctly points out, the state of the law is such that there are no statutes specifically authorizing private use of municipal right of ways nor are there are prohibitions against the municipality granting a private use of a public right of way. As Mr. --Rogers concludes, the -city- assembly can enact an ordinance allowing the use you contemplate. See Boyden V. Walkley, 71 N.W. 1099. G Butc". HORTON. BITTNER. Pe� :.ER AND ANDERSON Y A P"aress10NM. cob. ,IPAllow • Mr. Marvin Dragseth May 14, 1988 . Page 2 Our review of the available case law indicates that there are a number of distinctions which are made by courts and city councils with regard to private use of a public right of way. First, most of the case law presents situations where the private use of the public right of way actually infringes upon the public use of the right of way. Therefore, in the case cited -- --- by Mr. Rogers, Armbruster v. Wildwood, 41 F.2d 623, the construction of a broadwalk along a yortion of a city street which prevented access to a public beach was not allowed. These ( cases seem to indicate that some private uses of a public right { of way amount to public nuisances. Such would clearly not be the ll case in your instance as the pipeline in question would be buried and would not obstruct ingress and egress to lands owned by the - City of Kenai by the public nor any other public use of the right of way in question. In short, a great distinction seems to be made between private uses of public right of ways which present obstructions and private uses of public right of ways which do not present obstructions. In those cases, the question becomes *are the uses "I unreasonable, and do they make the streets unsafe for public use" 3 McQuillin, Municipal Corporations, S 30.74 citing; Pickrell v. Carlisle, 135 Ky. 128, 121 S.W. 1029. McQuillin also notes, at a the same section Another point to be considered is whether the encroachment is on the surface of the street or is above or below the surface. Much greater latitude is generally allowed in regard to encroachments t above (meaning extremely high) or below the surface of the street ... 1 Ibid, S 34.74 at 776. .. Finally, with regard to the authority cited by McQuillin, it is also clear that a private use of a public right II of way is often permitted so long as the appropriate public authority retains the right to use the right of way despite the encroachment by the private user. See Hatfield v. Straus, 189 Ny 208, 214, 82 N.E. 1721 McMillan v. Klaw and Erlanger Co., 107 App. Div. 4070 411, 95 N.Y.S. 365, Kelloq v. Cincinatti Trash ---- - ---. and -Co., 80 Ohio S.T. 331, 350, 86 N.E. 882. - As to the individual problems which Mr. Rogers raises, VI I believe all of them can be satisfactorily answered. First, Jim Cross, who helped engineer and plan the pipeline route, is certain that there is enough room within the right of way for the L { I AIRCH. HORTON, BITTNER, PEL 'AR AND ANDERSON w Q0F6S$1QMµ CONVORAT10" Mr. Marvin Dragseth May 14, 1988 Page 2 s'r pipeline despite the language of KMC 18.27 which provides for a specific location for each public utility assigned within a right . of way. Second,•you have the ability to indemnify and protect the City of Kenai from any damages or claims resulting from the -:. placement of the affluent pipeline into a public right of way. Third, the use of the right of way need not be a permanent (i.e. forever) thus enabling the City of Kenai to reserve to itself the - -_------------- -, right to use the area should a higher- aad greater -public need arise. In fact, leasing the right of way to you would enable the 1 city to protect itself by way of indemnification, receipt of a nominal payment for the benefit of the public and enableing { twenty retain the right t use the right of way at a later date. Marvin, in short, we do believe that the City of Kendi does have the right to authorize you to use the public right of way for a private use. Given the impact of the closure of your operations on the City of Kenai, we believe much public good will 1. 'ij, derive from the construction of the pipeline. The fact that your '1 pipeline is underground and can actually fit in the existing right of way as well as the fact that a properly prepared document will indemnify the city and allow it to retain the right to use the public lands should remove the concerns of Mr. Rogers with regard to construction of the affluent pipeline which is :. necessary for you to continue to run your facility in the City of Kenai. Sincerely, BIR HEM BITTHER, PES I GE ND ANDERSON Jeff( Bl.YtJkwenfels 7 YIM��81t1 11 ram._`. 4 ii Walters & Olson, Inc. }j insurance 'e. • S 130 S, WINOW St. May 25, 1988 Mr. Tim Rogers City Attorney City of Kenai 210 Fidalgo Dr. Kenai, Alaska 99622 I 1` Box 70 Kenai, Ak. 99611 Telex 25.249 907-2n6116 „ t... a ell h1AY�g8 `� .ley At DEpr � 1. OPKFA1A1 Ref: Royal Pacific Fisheries, Inc. Dear Tim: The usage of City of Kenai right of ways by Royal Pacific Fisheries presents an exposure that cannot readily be addressed by insurance. Although the City can require Royal Pacific to add the City of Kenai to their general liability policy (it already has due to their airport usage) that coverage specifically excludes any type of pollution (sudden and accidental, and gradual). Pollution coverage has not been available for several years due to liberal court interpretations of "sudden and accidental" coverage and what constitutes an occurrence. We suggest that you consider addressing this exposure in a different manner. in the contract, you may wish to include the following items: 1. Conformance with DOT requirements. 2. Conformance with DEC requirements. 3. Daily inspection by Royal Pacific employees of the pipeline route and outfall in the Kenai River and a log kept. 4. A bond or TCD in favor of the City to cover cleanup and/or repairs. This is what the state of Alaska does on the North Slope. If the route is inspected daily during the operating season of 6/25 - 8/30 the clean-up amount would probably be minimal, in the $5,000 to $7,500 range. Please let me know if we may be of further assistance: Sincerely, Kurt E. Olson r PARTIAL VERBATIM KENAI CITY COUNCIL MEETING MAY 18, 1988 ITEM B. SCHEDULED PUBLIC COMMENT B-2 Marvin Dragseth/Royal Pacific Fisheries MEASLES: Marvin Dragseth? DRAGSETH: Good evening ladies and gentlemen. I'm Marvin Dragseth of Box 224, Kenai, and tonight you have before you a pipeline that we need to out in. And, oh, what I want to do, I have my city engineer, or engineer here, and I also have my superintendent of construction and also I have Mr. Jim Kross with me from Environmental Services. And at any time that.you people would like to ask a question, please feel free to ask these people, they're experts. The thing that I want to say is that we employ at that plant through the summer, 600 people. We have between twelve and fourteen year-round employees and we buy a lot of stuff from this community. And what I'd like to do now is I'd like to turn this over to Mr. Jim Kross so that he can explain exactly what we're doing, the permits we have in place, and so on. Jim... KROSS: Good evening. What Marvin has been talking about is a pipeline that will allow him to discharge the waste water from his plant to the Kenai River. To go in a little bit to the background of this, in previous years he has had a waste water system which allowed him to discharge his liquid waste, Just the water that runs on the floor in the plant, to a subsurface disposal system. Unfortunately, the plant has grown to the point where it has outlived the usefulness of that type of disposal system. They have become a little bit too large and a little bit too successful. We are preparing for the 1988 season and attempting to construct a high -density pipeline which would follow the highways and the city streets directly to the Kenai River. I have an engineer's 1 7 I i - drawings here which I don't think you probably want to look at in i detail, but if anybody has questions, I could pass this out. The protect has been approved by the State Department of Environmental Conservation and they have all the requisite i permits to construct the pipeline. They have permits from the ` State Department of Transportation and Public Facilities to construct the pipe in the State's right-of-way. We have a permit ' in process with the Federal Environmental Protection Agency for the disposal of its water in the Kenai River. The only thing we are looking at this point is approval from the I'.. City of Kenai to use the right-of-way to build a pipeline. It would be identical to the pipeline right-of-way that was granted by the State of Alaska and very similar to other rights -of -way of this nature in other communities. As an example, I Just came back from Dutch Harbor. Virtually all the processors in that community have to transport their fish waste and liquid wastes quite some distance from their plants out to the open ocean and they all use essentially the some technology, plastic pipelines r, with a pumping system. And, all of these pipelines are buried in -- -- city rights -of -way and State rights -of -way. It's about the only legal way that you can move material along corridors. It's, it's . f difficult to acquire rights -of -wny across private property. Not because people won't provide them, but it .lust becomes so a difficult to acquire them over four, five, six or ten different ' lots. It's not an uncommon system. I think it's very straight- forward. In my opinion it doesn't produce any potential adverse effects on the community. You'll never see it. It'll be buried Just like the gas lines, and water lines, and sewer lines. I think that you'll find that it will provide a benefit to everyone - in the community. Can I answer any questions? yy MEASLES: i� Any questions from Council? Councilman Ackerly? ACKERLY: Just a couple ... how deep are you going to bury it? KROSS: over four feet. It will be used obviously, and then drained in the A ACKERLY: Yeah. that was my next question. KROSSs It's a four -inch high -density polyethylene Ripe. The wall thickness is about half an inch, so it's a real high -quality Pipeline. ACKERLY: 2. And I presume that you are aware of the corridors that we have set aside for various utilities... KROSS: Yes. ACKERLY: ...inside that corridor... KROSS: r.". The engineers that have put the plan together have worked with the City Engineer and worked with the Department of Transportation and worked with Environmental Conservation to locate this pipeline so that it won't conflict with other existing utilities in those rights -of -way, so that it won't Interfere with any of the spacing for those utilities and should be within all the State and Federal guidelines for separation _.. .. from potable water supply, both commercial and residential. A lot of effort has gone into this. Probably a period of three and one-half months and design and review and so forth. _... .! MEASLES: Councilwoman Monfor7 MONFOR: Same questions, that's all. 3 A F 4 f� r f i O'REILLY: I had a question about "accidents happen" and if this materializes, is the City held harmless or would it be. KROSS: We certainly would be happy to do that. I have a letter here from the City, excuse me, from the Company's attorney. I don't necessarily have copies for everyone, but I think it responds to a memo written by the City Attorney that address those particular Issues. Ah, we feel that the line is designed very well and we're willing to stand behind it from that perspective. But it the City requests that we provide some form of legal assistance beyond what you would find in a right-of-way agreement, I think the company would be happy to do that. Certainly, it is not our Intention to in any way encumber the community or to adversely affect anything that the public would expect out of the use of its right-of-ways. Our interest in using the right-of-way is that it's the, virtually the only way we could acquire access to the River. We would have to cross a City street no matter what way we routed this Pipe. And the same goes for the State highway. O'REILLY: Is there any cost involved on the City's part? KROSS: No. With the paying a fee to apply for the Permit and the cost of construction is borne entirely by the company. Any damages Incurred during construction would be borne by the company. We hold the City harmless as a matter of course and the method of construction, so I'd stay no. The attorney, the City Attorney ' - --- - of those, Put... o state that this is the first time 4 ROGERS: Ah, I do have in the packet, the Council will see under my report, under Item 3. fourth item, is the memorandum dated the twelfth. And while I'm talking I would make two inquiries. What is the proposed duration of this pipeline? KROSS: It would be undetermined. We are proposing a permanent use of that right-of-way. Certainly we would be happy to limit that to a reasonable time frame. Ah, the -reason for constructing the pipeline is that we have no access to the River otherwise. We have no access to a waste system._ In other parts of the country, the wastes that we are disposing of here would easily vo into any sanitary sewer system, but there are no sanitary sewers or no sewer treatment plant for us to access at this point. At some future date, if sanitary sewers were available in that area, I'm sure that it would be feasible to pretreat this material and dispose of it in the sewer Just like you would in any larger community. It's not typical for fisheries waste in Alaska to be treated. Ah, there are only two facilities that I'm aware -of anywhere in Alaska that actually treat their waste. One is in Palmer and it happens to be a very, very small operation and he has no alternative but to dispose of to a city sewer system. The other one is in Seward and they have their own fish meal plant. But they still discharge the liquid waste as we're proposing to here. So the method of disposal is the standard method of disposal for this type of waste, approved by all the federal and state agencies. ROGERS: Okay. You had alternatives previously? KROSS: We were allowed by the State of Alaska to utilize a ground disposal system, very much like your septic tank and leach field at home if you live in an area outside of sewers. Unfortunately, that option is very limited in terms of the volume of water that you can attempt to dispose of in that manner. We currently have a permit, we are entitled to use the facility that is in place, but it limits the operation of the plant, especially in the peak of the season. Lost year we ran into problems and the company oot into hot water with the State over how it was handling its S 111 ..M r waste and that precipitated the need to build this pipeline. it's actually been a need for several years, but it's Just that it's been difficult to get through the Permitting process and to get the thing constructed. ROGERS: Next, you are not a certificated facility? KROSS: No, we are not. ROGERS: And, how many lots or parcels would be required to buy easements from individuals in order to access your effluent outfall? KROSS: Actually, I don't think that's the issue because we would still have to cross a City street, irrespective of which way we were to go. ROGERS: Aside from a City street under which you would, I assume. ..inaudible.. Do you know how many parcels are involved? Are there three? KROSS: There are probably more then three —five. As far as I know. no more than five. Now we are crossing some private property where there are no other alternatives to rights-of-waY. ROGERS: So you've purchased easements for those pieces? KROSS: I can't say in particular if we've purchased them. VOICE FROM AUDIENCE: One. 6 R r•- " r KROSS: One. " ROGERS: You've acquired easements. KROSS: That's correct. ROGERS: Beyond the memorandum, if I mights beyond the memorandum I really don't have too much to add. I have not had an opportunity to view the memorandum dated the eighteenth from Mr. Dreaseth's attorney. Ah, we have had, if you recall, other requests for use of public right-of-way. None have been granted to date that I can recall. The ah, I think Mr. Dolchok was proposing a high- pressure gas line in the public right-of-way at one time, and was ah, I'm sure if he was going to eventually be certificated as a public utility, which of course would require our allowing the use of the Public right-of-way. Beyond my memorandum comments, the decision is Counoll's. -- MEASLES: " Councilwoman Swarner? SWARNER: Have all the residents of Pirate Lane been notified of this " Possibility. _. KROSS: „- I'll have to deter to another gentleman here. Mike, have you... MIKE: (from audience, hard to hear) Notified of.... SWean:ap: ri MIKE: For construction in the right--of-way? $WARNER: �. 1 Right. MIKE: Ah, not to my knowledge. There, ah. there would only be two detours short of ..inaudible.. I talked to the City about that. -T Ah, ..inaudible..on detouring on another part of the �. -- ...inaudible... that would be put together with Brown ;4 Construction, a contractor ....inaudible... property.... inaudible — KROSS: I th4nk that the direct answer to your question is no, probably all the owners have not been notified. In the course of constructing a facility like this. it is not common to notify the landowner that you're going to build something in the street. Ah, if it were a type of construction where you were to block access to their home or business for a given Period of time over an hour or two, it would probably be more common to contact them. - 4= But, were talking about a construction technique that will probably no more, wouldn't block a driveway for more than an hour or so. It's a very Quick Process. It's a shallow trench with a small pipe. So it goes Pretty quickly. d MEASLES: Councilman Ackerly? -. ACKERLY: f �{ Ummm, I presume that you come tonight asking for a decision from us tonight? KROSS: J Yea, we have a Particular set of circumstances. The fishing season is pretty much upon us. The construction equipment is staged, the Pipe is here and we're ready to go. Ah, we have a limited period of time to construct the line, test it, and receive our final certification from the State of Alaska. It we have to delay for any significant period of time, it could 6 seriously jeopardize the company's operation this season. I think that although there are some legitimate issues to discuss In terms of the issues the City Attorney has raised, the more common place use of easements and rights -of -way throughout the State, I think dictate that this is a pretty normal use. it is a private company, oh, much like ENSTAR or Union Oil, it's ,lust that we're not certificated by the State. We are not providing status as a common carrier or we're not providing status as a public utility, but we are still part of the public. ACKERL.Y : To Keith, I guess. Keith, from your standpoints not the legal otandpoint, but did you guys have any trouble with it at work. KORNELIS: ' F No, the only thing we require is our excavation permit. ..inaudible...to maintain the construction specification the City has which your engineer, who has done a lot of work for the City - and well aware of your compaction, backfill, and access to residents along the street as you do the construction. Other than that, as long as you follow our we don't have a problem. ACKERLY: Is it appropriate now to suggest a motion or .... MEASLES: Are there any other questions, Council? MC COMSEY: Could we get a hold harmless agreement in? ROGERS: I would certainly hope that number one, that you would have hold '.; harmless; number 2, you would consider it durational limit on ah, as opposed to a perpetual easement... 9 - f I- i; r�■■rar r r ROGERS: ..have not had, as You can see from the paperwork we have, we have not researched extensively. We have the memorandum raising the issues, she but that may be of concern, we may have some concerns later after further research. out at least, at least the indemnification and some sort of duration on it or unilateral ability to revoke the permission granted at that being understood as abeyance. Unilateral right to revoke by the City. KROSS: if I might offer a comment...We.would be happy to provide a hold harmless agreement and the document I passed out this evening fromt he company's attorney specifies that. In terms of the time frame, if we could be assured that these were renewable periods, she a reasonable ten or fifteen Year initial permit with option to renew, subJect to continued proper utilization of the right- of-way I think would be very appropriate. Ah, we would be happy to enter into any stipulation you suggest that would make certain that we operate within the constraints of our permits from other federal and state agencies. And that would be typical of the type of supervision that would warrant continued use of this type of a pipeline. The some kind of stipulations are typically attached to common carriers which you see a lot of around here because of this is an oil and gas producing area. ROGERS: I understand Your desire to be able to amortize over a period of time, however. I would come down on the other extreme and insist on unilateral revocation by the City of the right to be there for any or no reason. Ah, I don't know what our research is going to turn up. I don't know what the future holds. I don't know what bandwagon will be created with others attempting to be treated the same as to the utilities, and I don't know what problems will be encountered in other areen where we have designated specific locations for specific utilities. So, that would be my comment. I'm not saying the City would if they had that condition, but they would have the unilateral ability to do so and that would be understood going in... KROSS: Sure... io ROGERS: It may very well be that You would have the amortization period that You want, but it would say be renewal or not at the sole discretion of the City on an annual basis. KROSS: Unfortunately, that would really put the company in a bind because the condition of its permit to operate the plant as a seafood processing plant is based on having access to that pipeline. As this pipeline is being put into use, the State of Alaska will not allow us to discharge to a ground water absorption system any longer. Therefore, we'll be solely at the mercy of the pipeline for the ability.to dispose of our waste water. Therefore, if that pipeline use is restricted or the right-of-way is restricted, and we're required to remove the pipeline, then the plant would have to shut down and it could not get a license to operate from the State. ROGERS: I can certainly appreciate Your predicament, but I hope You can understand the City's... KROSS: Sure... ROGERS: Ah, getting into bed, so to speak, in a situation that it may not be able to get out of when it has a need to. KROSS: Under what circumstances would you think you'd... ROGERS: Pare of this time... 11 L 7 t C) 1 41 If ROGERS: Because of the time constraints we've had in the Presentation of this. I'm not saying that would be the case. but I think the City should reserve that option. KROSS: If you could suggest language that might allow us to maintain the use, subJect to continued ah operation of a system that was in compliance with the State and Federal Permit, that would Probably resolve part of your Problem... ROGERS: But not all of it... KROSS: Right... ROGERS: You understand what I'm saying... KROSS: I'm struggling for the language that would accommodate you ... ROGERS: I understand. —You're grasping for more than I am recommending to be given... KROSS: Sure... ROGERS: But it's up to the Council. KROSS: x think the limitation that the City Attorney is Proposing would really be a hardship. It would almost preclude the State from offering us the use of that Pipeline or continuing to authorize or issue a permit based on that... 12 I ROGERS: The Permit would be there and would continue until such time as a revocation but ah, be as it may, that is my recommendation. KROSS: Thank You very much for the opportunity and ah. If there are any other questions.... MEASLES: Ron, do you have a comment? SUTCLIFFE: (from the audience) He said it was a olastic—should I? MEASLES: Yes, please. SUTCLIFFE: Ron Sutcliffe, 2710 VIP Drive in Kenai. He represented that It was plastic Piping and the piping they've been welding on K-Beach Road sure doesn't look like plastic to me, It looks like rusty well casing, but I don't know if that's good or bad. KROSS: You're absolutely right. What he is referring to Is a conductor which will be Put under the driveways along the K-Beach Road. Because the water wells and some of those buildings are very close to road and the State law requires that any force main. sewer line, or pipeline such as the one we're building, be encased In a steel jacket or some other type of jacket where It Is less than one hundred feet from a well. So that's the reason for the steel pipeline there. There's one other spot under the highway where we're also. we're boring under the road rather than cutting the road with a ditch. ROjERS: One other matter, Just for the record, and I can appreciate the number of Jobs involved Insofar as precedent setting, you have an -,,-a i 1. r, a a t+ E. d, operation outside the city limits of the City of Kenai that will then be piping its effluent into and through the City and that distinction may be of no importance down the road at all, but it may also be, insofar as the precedents, involved. MEASLES: Any further questions of the Council? O'REILLY: I have one in the line with Mr. Rogers' last question. Is there another option for you? KROSS: About the only alternative that we have at this point, if the pipeline right-of-waY isn't granted, Mr. Oreaseth would have to truck his waste from that location, down to the Kenai River, adjacent to the Salamatoff plant and the cost and the Inconveniences the difficulty with doing it, would probably limit our ability to function on a normal basis, and may even jeopardize the permit we have with the State. They really don't like those types of operations because they lead to other continual problems and that was the basis for making certain that this pipeline were designed properly and operational. MEASLES: Further questions Council? Councilwoman Monfor? MONFOR: I just have to speak to this, because I know that this happens and I to me this would be the worst case scenario for the City, worse than anything with this pipeline, is that when you truck that waste water, having the truck have an accident. KROSS: Thank You all for Your indulgence. I know You hate to talk about wastes. ACKERLY: Do you understand the motion?? I'm not sure that this includes everythino, but I will try. C C ii I would move that the City of Kenai enter into a lenal agreement with Royal Pacific Fisheries, to be drawn up by the City of Kenai concerning the proper installation of a waste disposal system - line to the Kenai River, for a period of five years, with renewal l options, and to include proper right-of-way and placements, eto., etc., etc. : 1. MONFOR : There's a hold harmless... ACKERLY: Huh? And, well, that's one of the etcetera. A hold l -- --- harmless... trying to cover the bases. _ MEASLES: Is there a second? I( !!� 4 MC COMSEY : I'll second that. ± i ACKERLY: ' That's rouoh. MEASLES: • Discussion by Council? Councilwoman Monfor? ! MONFOR: ` k For five years? Okay, I don't have a real be problem with the five Years, but I Just want to make sure in my mind that that will not prevent them from betting the State's okay. The five years is a renewable, every five Years, like you would ,lust come to the Council when Your five years is up and say it's time to renew. - .., KROSS : I think it would depend on the stipulations that the City Attorney attaches to it. if it were the stipulation that we were I In compliance with the discharge, we had accurate and l --- - - ---- -. „ IS 1 f i I r satisfactory permits from the State of Alaska, ah, those types of stipulations• I think that they would find acceptable. If that's what you had in mind. ACKERLY= That's one of the etcetera too. It was kind of hidden in there... MEASLES: Councilwoman O'Reilly? O'REILLY: I maybe offering a friendly amendment or asking a question, I'm not sure, but, the resolution that Mr. Ackerly made, ah, was that to get the City Attorney...I would like to see all of this down on paper instead of etc. Could we make it a resolution to have the Attorney put it in the proper language for us to pass. Is that reasonable... ROGERS: I would take my direction from the Council as to motion as made. As soon as I have it, I'll circulate it to Council prior to the next meeting. O' REIL.LY : I don't know if that's a diffe:•ent resolution or an amendment to your.... ROGERS: I don't think it need be an amendment, I'll do it... MEASLES: That could delay them starting the protect, if they are able to come to an agreement between the City Administration and Mr. Draoseth. If it has to come beck to this Council for approval at the next meeting so I think it might suffice that the Council gives the Administration the direction tonight that it would like to see any pertinent information that the Council would like to see in that agreement and let the Administration go with it and if we don't like what they do with it, we'll ah..... 16 a: i I'REILLY: � agree with that. 1EASLES: 1h, yes, Mr. Oragaeth? )RAGSETH: rho only thing that I have to Say is that it's the 18th day of lay, and I have to be ready to process fish on the 15th day of tune and we have a pipeline to build, so please, hurry. MEASLES: Any further discussion by Council or next meeting. :ouncilwoman Monfor? MONFOR: He can't wait until June 1st. So we have to pass this tonight and tell him it's fine, contingent upon... ROGERS: We anticipate that we'll have it done first part of next week. MONFOR: So he can leave here tonight knowing that he can ... ROGERS: If that's direction of Council... MONFOR: permit... ROGERS: and we have administrative, and you're telling Administration to do it, we'll do it. MEASLES: Any further discussion? Clerk call the roll please. i7 ..r a * ith .fine � �..a- ape Fish' "pry ° 3 -� f Iap�iwterl. Y •4uas ;z Royal Pacm FW�a . �a�rwastewater .wale aa.. has been sedated to Ply Put to .low. peertbeP7a°t' � Gila" ! n0000 d a p0000 floe ,•,.� to bEC, of dMPinP 0111 gates ooIlm�;��'`F�cU�s. � pLnt'a operator �.. g to dlsst n to the ' ,.,,► .... ced memo d.the ooat m addition g the , owned ;,t0� r� of NL rwASte genet' 0 � �peW �a ;i flab P�� flrft taut . fled din[oR last yeae'a huge liver,�•�t didn t.4 by tldervin DUnefr, Np would overload e�pel�for"to•,y tndld a pipeline from ila aabneo location on Kalitornsky the eA o� break the law. ,; .ha said. a Beach Road to the Kenai � the sya "Phat a "tbe . �geage we., River to diachaege tb. fish the waste on they , , ,.� at� villa! het iceoss to other •DEC officialsfound an ... • rji waste. ,,.�� bably estimated B.O�o to d,000 �Ri�idd^ Ic I coat a between � � and $70o0, 111ccor4bg to 1b0 '�rest..Alssksn Department of Zuvtronmen•.. t talComervation. cited r.►�`!�_ ►•�"� The compROY was ; last Year adro�allijillim aeigAbor� Se"Of o0d "Ise ,�nplatuts m that ber well was beW cow G 0 0