HomeMy WebLinkAbout2020-03-09 Harbor Commission PacketKENAI HARBOR COMMISSION
REGULAR MEETING
MARCH 9, 2020 – 6:00 P.M.
KENAI CITY COUNCIL CHAMBERS
210 FIDALGO AVE., KENAI, AK 99611
http://www.kenai.city
1. CALL TO ORDER
a. Pledge of Allegiance
b. Roll Call
c. Agenda Approval
2. SCHEDULED PUBLIC COMMENTS (Public comment limited to ten (10) minutes per
speaker)
3. UNSCHEDULED PUBLIC COMMENT (Public comment limited to three (3) minutes per
speaker; thirty (30) minutes aggregated)
4. APPROVAL OF MEETING SUMMARY
a. February 10, 2020
5. UNFINISHED BUSINESS
6. NEW BUSINESS
a. Recommendation – Motion for Approval of Resolution No. HC20-01
b. Discussion/Recommendation – Contract to Use Cranes, Offices, and Operating Area
at the Boating Facility 2020
7. REPORTS
a. Public Works Director
b. Commission Chair
c. City Council Liaison
8. NEXT MEETING ATTENDANCE NOTIFICATION – April 6, 2020
9. COMMISSIONER COMMENTS AND QUESTIONS
10. ADDITIONAL PUBLIC COMMENT
11. INFORMATION ITEMS
12. ADJOURNMENT
PLEASE CONTACT US IF YOU WILL NOT BE ABLE TO ATTEND THE MEETING:
JACQUELYN -- 283-8231 OR, KAYLA -- 283-8236
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KENAI HARBOR COMMISSION
REGULAR MEETING
FEBRUARY 10, 2020 – 6:00 P.M.
KENAI CITY COUNCIL CHAMBERS
CHAIR MIKE DUNN, PRESIDING
MEETING SUMMARY
1. CALL TO ORDER
Chair Dunn called the meeting to order at approximately 6:00 p.m.
a. Pledge of Allegiance
Chair Dunn led those assembled in the Pledge of Allegiance.
b. Roll Call
Roll was confirmed as follows:
Commissioners present: Chair M. Dunn, Vice-Chair C. Crandall, C. Hutchison, B.
Peters, G. Greenberg, J. Desimone, B. Bornemann
Commissioners absent: N. Berga
Staff/Council Liaison present: Public Works Director S. Curtin, Public Works Assistant K.
Feltman, Council Member R. Peterkin
A quorum was present.
c. Elections of the Chair and Vice-Chair
MOTION:
Commissioner Peters MOVED to re-appoint Commissioner Dunn as Chair; Commissioner
Crandall SECONDED the motion. There were no objections; SO ORDERED.
MOTION:
Commissioner Crandall MOVED to appoint Commissioner Berga as Vice-Chair; Commissioner
Peters SECONDED the motion. There were no objections; SO ORDERED.
d. Agenda Approval
MOTION:
Commissioner Peters MOVED to approve the agenda and Commissioner Bornemann
SECONDED the motion. There were no objections; SO ORDERED.
2. SCHEDULED PUBLIC COMMENTS
a. USCG Sector Anchorage, LTJG Scott Peters & CWO Thad Wagner – 2019
Kenai Dip Net Fishery
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Harbor Commission Meeting Page 2 of 4
February 10, 2020
USCG LTJG Scott Peters noted he was in Kenai working with the State Park Rangers during two
of the busier weekends of the Dip Net Fishery and the focus while on the river was boating safety
education. The State Park Rangers primary focus was to manage Kenai River waterways. He
added that the 2019 Dipnet Fishery seemed orderly with the large amount of boats, noting the
USCG most reasonable recommendation was to wear life jackets. The plan for 2020 would be the
same as 2019 with the state fishery and USCG as the primary enforcement officers on the water.
3.UNSCHEDULED PUBLIC COMMENT
Jim Glendening commented on Title 11 concerns regarding management of the waterfront.
4.APPROVAL OF MEETING SUMMARY
a.November 4, 2019
MOTION:
Commissioner Crandall MOVED to approve the meeting summary of November 4, 2019; and
Commissioner Hutchison SECONDED the motion. There were no objections; SO ORDERED.
b.November 25, 2019 (Joint Meeting)
MOTION:
Commissioner Crandall MOVED to approve the meeting summary of November 25, 2019; and
Commissioner Hutchison SECONDED the motion. There were no objections; SO ORDERED.
c.January 6, 2020
MOTION:
Commissioner Crandall MOVED to approve the meeting summary of January 6, 2020; and
Commissioner Hutchison SECONDED the motion. There were no objections; SO ORDERED.
5.UNFINISHED BUSINESS – None.
6.NEW BUSINESS
a.Discussion/Recommendation – Special Use Permit Fee for City Crane Access
The Public Works Director noted an invitation to bid for the use of the City Dock would be
advertised later this week. The intent would be to continue with the special use permit for the
private fishermen and citizens for some form of access. He clarified that the permit was $1,000
that started at the end of June last year and he recommended starting earlier this year, noting
raising the cost to $1,500 or dependent on the user. He clarified there were three users last year,
the Special Use Permit would be available in May, and Special Use Permit users had to have
training before they could get the permit.
The Public Works Director noted the contract for bid was to use cranes, offices, and operating area
at the boating facility for 2020, with the intent to negotiate fueling at the City Dock with this contract.
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Harbor Commission Meeting Page 3 of 4
February 10, 2020
The Commission discussed having two fees for the Special Use Permit, Single Use Fisherman
and Commercial Use with fees ranging from $1,000 to $5,000.
7.REPORTS
a.Public Works Director – S. Curtin reported the following:
•Special Use Permit for the City Dock would be advertised for two weeks,
also in April and May;
•He executed the change order to Nelson Engineering for updating plans for
the Dock Repair Project, would sign this week, then it would go out for bid;
•Discussed dredging with the Army Corps of Engineers; working toward a
study for City Dock dredging;
•An update was provided on the Peninsula Avenue Bluff Erosion project and
the overall Bluff project; and
•There would be a City Council work session to hear about the new Capital
Improvement Plan (CIP); noting two specific projects of interest to the
Harbor Commission.
b.Commission Chair – M. Dunn noted interest on the Bluff Erosion project and
dredging at the City Dock.
c.City Council Liaison – R. Peterkin reported on the actions of the February 5
Council Meeting. He added that if Commission members wanted specific items on
a future Harbor Commission agenda, contact Chair Dunn and he would work with
Administration; noting the agenda deadline was one week prior to the meetings.
8.NEXT MEETING ATTENDANCE NOTIFICATION – March 9, 2020
9.COMMISSIONER COMMENTS AND QUESTIONS
Commission members welcomed new commissioner, Branden Bornemann.
Commissioner Hutchison expressed appreciation for keeping the Commission informed on the
Bluff Erosion project. She added she would contact the State Park Rangers and invite them to one
of the Harbor Commission meetings.
Commissioner Crandall thanked the Public Works Director for the due diligence with the Army
Corps of Engineers, and thanked all those that attended the Commission meeting.
Commissioner Bornemann expressed gratitude for the warm welcome and looked forward to
working with the Commission.
Commissioner Desimone applauded the City’s efforts for recognizing the Purple Heart, and urged
the Army Corps of Engineers for their continued support.
Chair Dunn thanked everyone for their participation and attendance to the meeting, and expressed
appreciation to the Public Works Director for the updates on the Bluff and City Dock.
10.ADDITIONAL PUBLIC COMMENT – None.
11.INFORMATION ITEMS – None.
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Harbor Commission Meeting Page 4 of 4
February 10, 2020
12. ADJOURNMENT
MOTION:
Commissioner Hutchison MOVED to adjourn and Commissioner Bornemann SECONDED the
motion. There were no objections; SO ORDERED.
There being no further business before the Commission, the meeting was adjourned at 7:55 p.m.
Meeting summary prepared and submitted by:
_____________________________________
Jacquelyn LaPlante
Deputy City Clerk
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Sponsored by: Harbor Commission
CITY OF KENAI
RESOLUTION NO. HC20-01
A RESOLUTION OF THE HARBOR COMMISSION OF THE CITY OF KENAI, ALASKA,
RECOMMENDING THE KENAI CITY COUNCIL ENACT ORDINANCE NO. 3106-2020
AMENDING TITLE 11 – HARBOR AND HARBOR FACILITIES, TO REMOVE PROVISIONS
THAT ARE NO LONGER HISTORICALLY RELEVANT, RECOGNIZE CHANGES TO OTHER
CHAPTERS OF CITY CODE THAT NOW PROVIDE FOR LEASE AND SALE OF HARBOR
LANDS AND PROVIDE THE HARBOR COMMISSION A PLATFORM TO MOVE FORWARD.
WHEREAS, the City’s Harbor Commission has long recognized a need for clarification and focus
in its duties and has undertaken several efforts to review and recommend revisions to Title 11;
and,
WHEREAS, the most recent review of Title 11 by the Harbor Commission and its subcommittee
formed for purposes of review, resulted in recommended revisions to Title 11 recognizing the
expertise of other City bodies in land use and planning and a desire of the Harbor Commission to
focus on regulation of the harbor and its associated activities; and,
WHEREAS, the Harbor Commission’s also recommends removing provisions from Title 11 that
are no longer necessary because of the temporal nature of the procedures addressed which have
long since expired; and,
WHEREAS, the Harbor Commission recognizes that the City recently updated Title 22-City
Owned Lands, which now encompasses the sale, lease and acquisition of harbor lands, negating
the need for separate provisions for the same in Title-11; and,
WHEREAS, the elimination of many sections of Title 11 is intended to be the first step in allowing
the Harbor Commission to focus on harbor related projects and activities and move forward with
future potential recommended code changes relevant to such projects and activity; and,
WHEREAS, the Harbor Commission supports the revisions proposed to Title 11 by Ordinance
No.3106-2020 which are based on its recommendations.
NOW, THEREFORE, BE IT RESOLVED BY THE HARBOR COMMISSION OF THE CITY OF
KENAI, ALASKA:
Section 1. That the Harbor Commission of Kenai Recommends the City Council Enact
Ordinance No. 3106-2020 Amending Title 11 of the Kenai Municipal Code.
Section 2. That a copy of this Resolution be provided to the members of the Kenai City
Council.
Section 3. That this Resolution takes effect immediately upon passage.
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Resolution No. HC20-01
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PASSED BY THE HARBOR COMMISSION OF THE CITY OF KENAI, ALASKA, this 9th day of
March, 2020.
__________________________________
MIKE DUNN, CHAIR
ATTEST:
______________________________________
Jamie Heinz, CMC, City Clerk
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Sponsored by: Council Members Glendening and Peterkin
CITY OF KENAI
ORDINANCE NO. 3106-2020
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING TITLE 11
– HARBOR AND HARBOR FACILITIES, TO REMOVE PROVISIONS THAT ARE NO LONGER
HISTORICALLY RELEVANT, RECOGNIZE CHANGES TO OTHER CHAPTERS OF CITY CODE
THAT NOW PROVIDE FOR LEASE AND SALE OF HARBOR LANDS AND PROVIDE THE
HARBOR COMMISSION A PLATFORM TO MOVE FORWARD.
WHEREAS, on January 6, 1977 the state conveyed certain tidelands and submerged lands to the
City; and,
WHEREAS, with the conveyance came responsibilities for the City including surveying, platting
and adjudication of commercial fisheries rights; and,
WHEREAS, many of these responsibilities, codified in Title 11-Harbor and Harbor Facilities, were
required to be completed within a two-year period or less; and,
WHEREAS, there is no longer a need to maintain in City Code, ordinances pertaining to a process
that expired over 30 years ago; and,
WHEREAS, the City recently updated Title 22-City Owned Lands, which now encompasses the
sale, lease and acquisition of harbor lands, negating the need for separate provisions for the same
in Title-11; and,
WHEREAS, the City’s Harbor Commission has long recognized a need for clarification and focus
in its duties; and,
WHEREAS, the most recent review of Title 11 by the Harbor Commission and its subcommittee
in 2019, recommended many revisions to the Title recognizing the expertise of other City bodies
in land use and planning and a desire to focus on regulation of the harbor and its associated
activities; and,
WHEREAS, removing provisions from Title 11 that are no longer necessary is intended to be the
first step in allowing the Harbor Commission to focus on harbor related projects and activities and
move forward with future potential recommended code changes relevant to such projects and
activity; and,
WHEREAS, the Harbor Commission at its meeting on _________________recommended
____of this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA,
as follows:
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Ordinance No. 3106-2020
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Section 1. Amendment of Title 11 of the Kenai Municipal Code: That Kenai Municipal Code,
Title 11 – Harbor and Harbor Facilities, is hereby amended as follows:
Title 11
HARBOR AND HARBOR FACILITIES
Chapters:
11.05 Harbor Master
11.10 Harbor Commission
11.15 Tidelands
11.20 Leasing of Tidelands
Chapter 11.05
HARBOR MASTER
Sections:
11.05.010 Harbor Master.
11.05.020 Harbor [D]Defined.
11.05.030 Harbor [R]Regulations.
[11.05.040 PERMIT FOR TERMINAL OR TRANSPORTATION FACILITIES.
11.05.050 CONDITION AS TO EQUAL SERVICES AND RATES.
11.05.060 INVESTIGATION OF HOLDER—CANCELLATION.
11.05.070 FACILITY RATES AND CHARGES.]
11.05.080 Leasing [N]Not [P]Prohibited.
11.05.090 Use of [L]Launch [R]Ramp and [F]Float.
11.05.100 No [W]Wake [Z]Zones.
11.05.010 Harbor Master.
The Harbor Master, shall be the Public Works Director. The Harbor Master shall be the chief
administrator of the harbor and its facilities. He or she shall have all powers and duties prescribed
by ordinance and the regulations and rates prescribed by the City Manager. In addition, insofar
as it is appropriate, shall have all powers and duties and rates prescribed by the City Manager,
subject to approval by the Council; and, in addition, insofar as it is appropriate, shall have all
powers and duties imposed upon harbor masters, port directors, and administrative heads of
harbors and ports by Federal or State law.
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Ordinance No. 3106-2020
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11.05.020 Harbor [D]Defined.
The harbor shall embrace all that portion of the Kenai River located within the City of Kenai,
including all tide and submerged lands, whether filled or unfilled, situated below the line of mean
high tide, as may be leased from the State of Alaska.
11.05.030 Harbor [R]Regulations.
The City Manager is hereby empowered, subject to change by the Council, to make such rules
and regulations required for the operation of the harbor, not in conflict with the provisions of this
Code, and to establish the fees, rates, and charges for the billing and collections for the support
of the harbor, and no person shall fail to comply with any such rule or regulation.
[11.05.040 PERMIT FOR TERMINAL OR TRANSPORTATION FACILITIES.
(A) ALL LESSEES, OWNERS, OR OCCUPANTS OF PROPERTY WITHIN THE HARBOR OR
CONTIGUOUS TO IT WHO WISH TO CONSTRUCT OR OPERATE TERMINAL OR
TRANSPORTATION FACILITIES OF ANY KIND THEREIN, INCLUDING, BUT NOT LIMITED
TO, DOCKS AND WAREHOUSES, SHALL APPLY TO THE LANDSCAPING/SITE PLAN
REVIEW BOARD FOR A PERMIT]. APPLICATION THEREFOR SHALL BE MADE IN
ACCORDANCE WITH REGULATIONS DESCRIBED IN KMC 14.25, ENTITLED
“LANDSCAPING/SITE PLAN REGULATIONS,” AND SHALL BE ACCOMPANIED BY A PLAN
OF THE PROPOSED CONSTRUCTION, WHICH SHALL MEET ALL STANDARDS AND
REQUIREMENTS WHICH MAY BE SET FORTH BY THE COUNCIL.
(B) THE APPLICANT SHALL REFER ALL PLANS OF THE TYPE OR LOCATION OF ANY
PROPOSED CONSTRUCTION WHICH ARE OR MAY BE IN CONFLICT WITH THE GENERAL
CITY PLAN TO THE HARBOR COMMISSION AND THE LANDSCAPING/SITE PLAN REVIEW
BOARD TO DETERMINE WHETHER SUCH PROPOSED CONSTRUCTION IS IN KEEPING
WITH THE OBJECTIVES OF THE GENERAL PLAN. THE DECISION OF THE
LANDSCAPING/SITE PLAN REVIEW BOARD SHALL BE BINDING UNLESS APPEALED BY
COUNCIL. THE BUILDING OFFICIAL MAY ISSUE PERMITS UPON SUCH TERMS AND
CONDITIONS AND FOR SUCH DURATION AS IT MAY DEEM PROPER, AND NO
CONSTRUCTION MAY BEGIN OR OPERATION CARRIED ON WITHOUT A PERMIT FROM
THE BUILDING OFFICIAL.]
[11.05.050 CONDITION AS TO EQUAL SERVICES AND RATES.
IT SHALL BE A CONDITION OF ALL PERMITS GRANTED BY THE CITY COUNCIL THAT THE
FACILITIES TO BE CON-STRUCTED AND THE SERVICES TO BE SUPPLIED IN
CONNECTION WITH THEM SHALL BE MADE AVAILABLE TO ALL CARRIERS UPON EQUAL
TERMS, AT EQUAL RATES, AND WITHOUT DISCRIMINATION OF ANY KIND.]
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Ordinance No. 3106-2020
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[11.05.060 INVESTIGATION OF HOLDER—CANCELLATION.
THE CITY COUNCIL MAY INQUIRE INTO THE MANNER IN WHICH OBLIGATIONS UNDER
THE PERMITS ISSUED BY IT ARE CARRIED OUT, AND INTO THE RATE SCHEDULES AND
PRACTICES OF THE PERMIT HOLDERS FOR PURPOSES OF DETERMINING WHETHER
THE PROVISIONS OF THE PERMITS ARE BEING COMPLIED WITH. IT SHALL HAVE
ACCESS TO BOOKS AND RECORDS AND TO TERMINAL AND TRANSPORTATION
FACILITIES AS MAY BE REASONABLY NECESSARY TO ENABLE IT TO MAKE SUCH A
DETERMINATION. SHOULD THE COUNCIL AT ANY TIME FIND THE PERMIT HOLDER IS
NOT COMPLYING WITH THE TERMS OF HIS OR HER PERMIT, IT MAY CANCEL THE
PERMIT UPON SUCH NOTICE AND IN ACCORDANCE WITH SUCH PROCEDURE AS IT MAY,
BY REGULATION, PRESCRIBE.]
[11.05.070 FACILITY RATES AND CHARGES.
THE CITY SHALL FIX THE RATES AND CHARGES FOR THE USE OF ANY AND ALL
TERMINAL OR TRANSPORTATION FACILITIES CONSTRUCTED ON PROPERTY UNDER
ITS JURISDICTION, INCLUDING CHARGES ASSESSED AGAINST VESSELS, THEIR
OWNERS, AGENTS OR OPERATORS WHICH LOAD OR DISCHARGE CARGO AT ANY OF
THE TERMINALS WITHIN THE HARBOR AREA; CHARGES FOR BERTHAGE W HILE
LOADING OR DISCHARGING CARGO; CHARGES FOR ADMINISTRATIVE EXPENSES IN
SERVING THE CARRIER’S CHARGES FOR FREIGHT HANDLING, LOADING, UNLOADING
AND WHARF DEMURRAGE RATES. SUCH RATES AND CHARGES SHALL BE JUST AND
REASONABLE. THE RATES AND CHARGES SHALL BE AS SET FORTH IN THE CITY’S
SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL.]
11.05.080 Leasing [N]Not [P]Prohibited.
Nothing in this chapter or in this code of ordinances shall prohibit the City Council from leasing
the docks, dock sites, and other harbor facilities to private persons, firms, and corporations.
11.05.090 Use of [L]Launch [R]Ramp and [F]Float.
(a) The City of Kenai launching facility shall be open to the public upon reasonable terms
and conditions as provided by regulation.
(b) Failure to pay a boat launch fee for the City of Kenai launching facility set forth according
to KMC 11.05 within one (1) hour of the retrieval of the boat or vessel from the water shall be
a violation punishable by a fine of fifty dollars ($50.00).
(c) It is unlawful to block access to either of the launch ramp or float facilities. “Blocking
access” means leaving a boat, trailer, or vehicle upon the launch ramp or float in such a
position as to prevent the launching or retrieval of boats.
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Ordinance No. 3106-2020
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(d) Person blocking access to the ramp or float facilities shall be subject to a civil penalty as
provided in KMC 13.05.010(b).
(e) Each one (1) hour period for which the ramp or float is blocked shall be considered a
separate offense for the purposes of civil penalties.
11.05.100 No [W]Wake [Z]Zones.
(a) The City Manager, subject to change by the Council, is authorized to establish no wake zones
within the Kenai Harbor outside of the Kenai River Special Management Area as needed to
protect public and private property, and/or public safety.
(b) No wake zones may be established on a temporary or permanent basis.
(c) A “no wake zone” is defined as a zone where no person may operate a boat at a speed
greater than five (5) miles per hour.
(d) Established no wake zones shall be marked with appropriate signage in a manner to
provide reasonable public notice.
(e) A violation of this section shall be punishable as provided in KMC 13.05.010.
Chapter 11.10
HARBOR COMMISSION
Sections:
11.10.010 Duties and [P]owers.
11.10.010 Duties and [P]Powers.
(a) The Harbor Commission shall be required to do the following:
(1) Develop, adopt, alter, or revise, subject to approval by the City Council, a master
plan for the physical development of harbor or port facilities for the City. Such master
plan with accompanying maps, plats, charts, descriptive, and explanatory matter, shall
show the Harbor Commission’s recommendations for the development of the City Harbor
facilities may include, among other things:
(i) development of the type, location, and sequence of all public harbor facilities;
(ii) the relocation, removal, extension, or change of use of existing harbor facilities;
(2) Submit annually to the City Manager and Council, not less than ninety (90) days
prior to the beginning of the budget year, a list of the recommended capital improvements
which, in the opinion of the Commission, are necessary or desirable to be constructed
during the forthcoming three (3) year period. Such list shall be arranged in order of
preference, with recommendations as to which projects shall be constructed in which
year.
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Ordinance No. 3106-2020
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(3) Make investigations regarding any matter related to City harbor facilities, tide or
submerged lands. Make recommendations to the Council relative to the care, control,
and development of tide and submerged lands.
[(4) ACT IN THE CAPACITY AS DIRECTED AND AUTHORIZED BY A TIDELANDS
ORDINANCE ADOPTED BY THE CITY.]
([5]4) Review all City leases of City-owned tide, submerged, and lands or navigable
waters within the City, and as to the planned improvements proposed and make
recommendations to the City Council.
([6]5) Make and prepare reports and plans for approval by the City Council.
([7]6) Coordinate public efforts, individual and group, to the effectuation of approved
plans.
([8]7) Shall act in advisory capacity in the selection of a Harbor Director should such a
position be created by the City Council.
Chapter 11.15
TIDELANDS
Sections:
11.15.010 Short [T]Title.
[11.15.020 DEFINITIONS.]
11.15.030 Approval and [A]Acceptance of State [C]Conveyance.
11.15.040 Approval and [A]Adoption of [S]Subdivision [P]Plat.
[11.15.050 TIME AND PLACES OF POSTING PLAT.
11.15.060 PUBLICATION OF NOTICE OF POSTING PLAT AND PLAT AND PASSAGE
OF ORDINANCE.
11.15.070 TIME IN WHICH APPLICATIONS WILL BE ACCEPTED FOR FILING.
11.15.080 PROCEDURE FOR FILING APPLICATI ONS.
11.15.090 INITIAL REVIEW BY COMMISSION.
11.15.100 PRELIMINARY PLAT.
11.15.110 PRELIMINARY PLAT REQUIREMENTS.
11.15.120 SURVEY PROCEDURE.
11.15.130 PROCEDURE ON FINAL PLAT.
11.15.140 FINAL PLAT REQUIREMENTS.
11.15.150 DEPOSITS FOR COSTS PREREQUISITE TO FILING.
11.15.160 ADDITIO NAL COSTS IN CERTAIN CASES.
11.15.170 PROCEDURES FOR PROCESSING FILED APPLICATIONS.
11.15.180 APPRAISAL.
11.15.190 REVIEW BY CITY ENGINEER.
11.15.200 RECOMMENDED APPROVAL BY COMMISSION.
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Ordinance No. 3106-2020
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11.15.210 PROCESSING OF APPROVED APPLICATIONS BY CLERK AND NOTICE TO
PUBLIC.
11.15.220 DEEDS—PERMANENT REGISTER.
11.15.230 SPECIAL PROCEEDINGS FOR DISPUTED CLAIMS.
11.15.240 PROCEEDINGS FOR DETERMINATION BY COUNCIL OF ALL DISPUTES.
11.15.250 DETERMINATION UPON STIPULATION OF FACTS.
11.15.260 REJECTION OF PROTESTS OTHER THAN BY APPLICANT.
11.15.270 HANDLING OF DEPOSIT AND PURCHASE FUNDS.
11.15.280 FORFEITURE OF PREFERENCE RIGHTS.
11.15.290 FORMS.]
11.15.010 Short [T]Title.
This ordinance shall be known as the “Kenai Tidelands Ordinance.”
[11.15.020 DEFINITIONS.
FOR THE PURPOSE OF THIS ORDINANCE, THE TERMS DEFINED HEREIN SHALL HAVE
THE MEANING PROVIDED UNLESS THE CONTEXT REQUIRES OTHERWISE:
(A) “ALASKA” MEANS THE STATE OF ALASKA.
(B) “AGRICULTURAL LANDS” MEANS TIDELANDS CHIEFLY VALUABLE FOR
AGRICULTURAL PURPOSES.
(C) “ASSESSOR” MEANS THE ASSESSOR OF THE CITY OF KENAI, ALASKA, OR
OTHER INDIVIDUAL DESIGNATED BY THE CITY MANAGER TO PERFORM THE
FUNCTIONS HEREIN ASSIGNED TO THE ASSESSOR.
(D) “CITY” MEANS THE CITY OF KENAI, ALASKA.
(E) “CITY ENGINEER” MEANS THE CITY ENGINEER OF THE CITY, OR OTHER CITY
OFFICIAL DESIGNATED TO PERFORM THE FUNCTIONS HEREIN ASSIGNED TO THE
CITY ENGINEER.
(F) “CLASS I PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO PERSONS
WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS SEAWARD OF A
SURVEYED TOWNSITE ON AND PRIOR TO SEPTEMBER 7, 1957, AND WHO HAVE
EXECUTED A WAIVER TO THE CITY AND STATE OF ALL RIGHTS SUCH OCCUPANT
MAY HAVE HAD PURSUANT TO PUBLIC LAW 85-303. UPON EXECUTION OF THE
WAIVER, SUCH PERSONS OR THEIR SUCCESSORS IN INTEREST, HAVE THE RIGHT
TO ACQUIRE SUCH OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS FROM
THE CITY FOR CONSIDERATION OF THE COSTS OF SURVEY, AND TRANSFERRING
AND CONVEYING THE TITLE.
(G) “CLASS II PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO CLASS I
PREFERENCE RIGHT CLAIMANTS WHO REFUSE TO EXECUTE A WAIVER TO THE
CITY OF ANY RIGHTS SUCH OCCUPANTS MAY HAVE ACQUIRED PURSUANT TO
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Ordinance No. 3106-2020
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PUBLIC LAW 85-303. IT SHALL BE MANDATORY FOR THE CITY TO EXPEDITIOUSLY
HONOR THE APPLICATION FROM THE OCCUPANT AFTER THE SECRETARY OF THE
ARMY HAS SUBMITTED TO THE SECRETARY OF THE INTERIOR AND GOVERNOR OF
THE STATE MAPS SHOWING THE PIERHEAD LINE ESTABLISHED BY THE CORPS OF
ENGINEERS WITH RESPECT TO THE TRACT SO GRANTED. THE MOST EXPEDITIOUS
METHOD OF SECURING TITLE TO SUCH LANDS IS TO EXECUTE THE WAIVER OF
CLASS II RIGHTS AND PROCEED TO APPLY FOR TITLE UNDER A CLASS I
PREFERENCE RIGHT.
(I) “CLASS III PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO PERSONS
WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS AFTER SEPTEMBER
7, 1957, AND WHO CONTINUED TO OCCUPY THE SAME ON JANUARY 3, 1959. SUCH
PERSONS, OR THEIR SUCCESSORS, HAVE THE RIGHT TO ACQUIRE SUCH
OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS FOR A CONSIDERATION
NOT TO EXCEED THE COSTS OF APPRAISAL, AND THE ADMINISTERING AND
TRANSFERRING, INCLUDING SURVEY, TOGETHER WITH THE APPRAISED FAIR
MARKET VALUE THEREOF, EXCLUSIVE OF ANY VALUE OCCURRING FROM
IMPROVEMENTS OR DEVELOPMENT, SUCH AS FILL MATERIAL, BUILDING, OR
STRUCTURES THEREON.
(J) “CLERK” MEANS THE CLERK OF THE CITY.
(K) “COMMISSION” MEANS THE CITY OF KENAI ADVISORY HARBOR COMMISSION
UNLESS NOTED OTHERWISE.
(L) “DIRECTOR” MEANS THE DIRECTOR OF LANDS, STATE OF ALASKA.
(M) “DIRECTOR’S LINE” MEANS A LINE SEAWARD OF THE CITY, APPROVED BY THE
DIRECTOR, WITH THE CONCURRENCE OF THE COMMISSIONER OF NATURAL
RESOURCES, STATE OF ALASKA, SEAWARD OF ALL TIDE AND SUBMERGED LANDS
OCCUPIED OR SUITABLE FOR OCCUPATION AND DEVELOPMENT WITHOUT
UNREASONABLE INTERFERENCE WITH NAVIGATION.
(N) “FAIR MARKET VALUE” MEANS THE HIGHEST PRICE, DESCRIBED IN TERMS OF
MONEY, WHICH THE PROPERTY WOULD BRING IF EXPOSED FOR SALE FOR A
REASONABLE TIME IN THE OPEN MARKET, WITH A SELLER, WILLING BUT NOT
FORCED TO SELL, AND A BUYER, WILLING BUT NOT FORCED TO BUY, BOTH BEING
FULLY INFORMED OF ALL THE PURPOSES FOR W HICH THE PROPERTY IS BEST
ADAPTED OR COULD BE USED.
(O) “FILL” SHALL MEAN EARTH, GRAVEL, ROCK, SAND, OR OTHER SIMILAR
MATERIALS PLACED UPON TIDE OR CONTIGUOUS SUBMERGED LANDS TO A
HEIGHT ABOVE THE HIGH WATER LINE FOR THE PURPOSE OF ELEVATING THE
LANDS FOR A SPECIAL USEFUL PURPOSE. EARTH, GRAVEL, ROCK, SAND, OR
OTHER SIMILAR MATERIALS, PLACED ON TIDE OR CONTIGUOUS SUBMERGED LAND
SOLELY FOR THE PURPOSE OF SPOILS DISPOSAL SHALL NOT BE CONSIDERED FILL
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UNLESS SUCH FILL WAS USED FOR USEFUL AND BENEFICIAL PURPOSE ON AND
PRIOR TO JANUARY 3, 1959.
(P) “HEARINGS OFFICER” MEANS THAT CITY OFFICIAL EMPLOYED TO HEAR
DISPUTES BETWEEN CLAIMANTS, SUMMARIZE THE TESTIMONY, ATTEMPT TO
REACH STIPULATIONS OF FACT BETWEEN THE PARTIES, ASSEMBLE THE RECORD
OF THE DISPUTE, AND SUBMIT THE SAME TO THE COUNCIL FOR DETERMINATION.
(Q) “IMPROVEMENTS” MEANS BUILDINGS, WHARVES, PIERS, DRY DOCKS, AND
OTHER SIMILAR TYPES OF STRUCTURES PERMANENTLY FIXED TO THE TIDE OR
CONTIGUOUS SUBMERGED LANDS THAT WERE CONSTRUCTED AND/OR
MAINTAINED BY THE APPLICANT FOR BUSINESS, COMMERCIAL, RECREATION,
RESIDENTIAL, OR OTHER BENEFICIAL USES OR PURPOSES. FLOATS SECURED BY
GUIDE PILES USED AS FLOATING WHARVES, WHERE ACCESS IS PROVIDED TO THE
SHORE, SHALL BE IMPROVEMENTS WITHIN THE MEANING OF THIS SECTION, AND
FILL MATERIAL NOT ACTUALLY IN PLACE TO ABOVE THE LINE OF MEAN HIGH TIDE
OF JANUARY 3, 1959 AND ACTUALLY UTILIZED FOR BENEFICIAL PURPOSES ON
JANUARY 3, 1959 BY THE APPLICANT SHALL BE CONSIDERED A PERMANENT
IMPROVEMENT, BUT IN NO EVENT SHALL FILL BE CONSIDERED A PERMANENT
IMPROVEMENT WHEN PLACED ON THE TIDELANDS SOLELY FOR THE PURPOSE OF
DISPOSING OF WASTE OR SPOILS. FILL MATERIAL NOT UTILIZED FOR A BENEFICIAL
PURPOSE ON AND PRIOR TO JANUARY 3, 1959, AND FILL MATERIAL NOT ACTUALLY
IN PLACE TO ABOVE THE LINE MEAN HIGH TIDE ON JANUARY 3, 1959 SHALL NOT BE
THE BASIS FOR AN APPLICATION, NOR SHALL IT BE INCLUDED IN ANY APPLICATION,
FOR THE EXERCISE OF PREFERENCE RIGHTS HEREUNDER.
(R) “INDUSTRIAL AND COMMERCIAL LANDS” MEANS TIDE LANDS CHIEFLY
VALUABLE FOR INDUSTRIAL, MANUFACTURING, OR COMMERCIAL PURPOSES.
(S) “KENAI” MEANS THE CITY OF KENAI, ALASKA.
(T) “MANAGER” MEANS THE MANAGER OF THE CITY OF KENAI, ALASKA.
(U) “MEAN HIGH TIDE” AT ANY PLACE SUBJECT TO TIDAL INFLUENCE SHALL BE
INTERPRETED AS THE TIDAL DATUM PLANE DERIVED FROM AVERAGING ALL THE
HIGH WATERS OBSERVED AT THAT PLACE OVER A PERIOD OF NINETEEN (19)
YEARS. MEAN HIGH WATER SHALL BE INTERPRETED TO BE AS THE INTERSECTION
OF THE DATUM PLACE OF MEAN HIGH WATER WITH THE SHORE.
(V) “MEAN LOW TIDE” SHALL BE INTERPRETED TO BE MEAN LOWER LOW WATER
WHICH IS THE MEAN OF THE LOWER OF THE TWO LOW WATERS OF EACH DAY FOR
A TIDAL CYCLE OF NINETEEN (19) YEARS.
(W) “OCCUPANT” MEANS ANY PERSON AS DEFINED HEREIN, OR HIS SUCCESSOR
IN INTEREST, WHO ACTUALLY OCCUPIED FOR ANY BUSINESS, RESIDENTIAL, OR
OTHER BENEFICIAL PURPOSE, TIDE OR SUBMERGED LAND, WITHIN THE
CONVEYANCE OF SUCH BY THE STATE TO THE CITY, ON OR PRIOR TO JANUARY 3,
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1959, WITH SUBSTANTIAL PERMANENT IMPROVEMENTS. NO PERSON SHALL BE
CONSIDERED AN OCCUPANT BY REASON OF HAVING:
(1) PLACED A FISH TRAP IN POSITION FOR OPERATION OR STORAGE UPON
THE TIDE, SHORE, OR SUBMERGED LAND;
(2) PLACED A SET NET OR PILING THEREFOR OR ANY OTHER DEVICE OR
FACILITY FOR TAKING OF FISH;
(3) PLACED PILINGS OR DOLPHINS FOR LONG STORAGE OR OTHER
MOORAGE;
(4) PLACED TELEPHONE, POWER, OR OTHER TRANSMISSION FACILITIES,
ROADS, TRAILS, OR OTHER CONTIGUOUS SUBMERGED LANDS; OR
(5) CLAIMED THE LAND BY VIRTUE OF SOME FORM OF CONSTRUCTIVE
OCCUPANCY. WHERE LAND IS OCCUPIED BY A PERSON OTHER THAN THE
OWNER OF THE IMPROVEMENTS THEREON, THE OWNER OF THE
IMPROVEMENTS SHALL, FOR THE PURPOSE OF THIS ORDINANCE, BE
CONSIDERED THE OCCUPANT OF SUCH LANDS.
(X) “OCCUPIED OR DEVELOPED” MEANS THE ACTUAL USE, CONTROL, AND
OCCUPANCY, BUT NOT NECESSARILY RESIDENCE, OF THE TIDE OR SUBMERGED
LAND BY THE ESTABLISHMENT THEREON OF SUBSTANTIAL PERMANENT
IMPROVEMENTS.
(Y) “ORDINANCE” MEANS THE KENAI TIDELANDS ORDINANCE.
(Z) “PARK AND RECREATION LANDS” MEANS TIDELANDS CHIEFLY VALUABLE FOR
PUBLIC PARK AND RECREATION USE, INCLUDING SCENIC OVERLOOKS.
(AA) “PERSON” MEANS ANY PERSON, FIRM, CORPORATION, COOPERATIVE
ASSOCIATION, PARTNERSHIP OR OTHER ENTITY LEGALLY CAPABLE OF OWNI NG
LAND OR ANY INTEREST THEREIN.
(BB) “PIERHEAD LINE” IS A LINE FIXED BY THE CORPS OF ENGINEERS ROUGHLY
PARALLEL TO THE EXISTING LINE OF MEAN LOW TIDE AT SUCH DISTANCE
OFFSHORE THEREFROM THAT SAID PIERHEAD LINE SHALL ENCOMPASS
LANDWARD ALL STATIONARY, MANMADE STRUCTURES UNDER THE AUTHORITY OF
PUBLIC LAW 85-303.
(CC) “PREFERENCE RIGHT” SUBJECT TO THE CLASSIFICATIONS THEREOF HEREIN
ESTABLISHED MEANS THE RIGHT OF AN OCCUPANT TO ACQUIRE BY GRANT,
PURCHASE, OR OTHERWISE, AT THE ELECTION OF THE OCCUPANT, EXCEPT AS
OTHERWISE LIMITED OR PRESCRIBED IN THIS ORDINANCE, ANY LOT, PIECE,
PARCEL, OR TRACT OF TIDELAND OR SUBMERGED LAND OCCUPIED OR
DEVELOPED BY SUCH OCCUPANT ON AND PRIOR TO JANUARY 3, 1959.
(DD) “STATE” MEANS THE STATE OF ALASKA.
(EE) “SUBMERGED LANDS” MEANS LAND COVERED BY TIDAL WATERS BETWEEN
THE LINE OF MEAN LOW WATER AND SEAWARD TO A DISTANCE OF THREE (3)
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GEOGRAPHICAL MILES, IN THEIR NATURAL STATE, WITHOUT BEING AFFECTED BY
MANMADE STRUCTURES, FILL, AND SO FORTH.
(FF) “SUBSTANTIAL PERMANENT IMPROVEMENTS” SHALL FOR THE PURPOSES OF
THE ORDINANCE HAVE THE SAME MEANING AS IMPROVEMENTS, AS HEREIN
DEFINED.
(GG) “TIDELANDS” MEANS LANDS PERIODICALLY COVERED BY TIDAL WATERS
BETWEEN THE ELEVATIONS OF MEAN HIGH TIDE AND MEAN LOW TIDES, WITHOUT
REGARD TO ARTIFICIAL INTERFERENCE WITH TIDAL FLOWS CAUSED BY MANMADE
STRUCTURES, BREAKWATERS, FILL, AND THE LIKE. WHEN USED IN THIS
ORDINANCE, IT SHALL ALSO INCLUDE SUBMERGED LANDS CONVEYED BY THE
STATE TO THE CITY.
(HH) “TIDELANDS SUBDIVISION PLAT” IS THAT CERTAIN PLAT OF SUBDIVISION OF
TIDELANDS AND SUBMERGED LANDS CONVEYED BY THE STATE TO THE CITY MADE
BY H.H. GALLIETT, JR., REGISTERED ENGINEER, DATED DECEMBER, 1968, KNOWN
AS ALASKA TIDELANDS SURVEY NO. 272 AND FILED AS 76-179 IN THE KENAI
RECORDING DISTRICT SHOWING ALL STRUCTURES AND IMPROVEMENTS
THEREON AND THE BOUNDARIES OF EACH TRACT OCCUPIED OR DEVELOPED,
TOGETHER WITH THE NAME OF THE OWNER OR CLAIMANT THEREOF, INCLUDING
WITHIN THE BOUNDARIES OF EACH TRACT OCCUPIED OR DEVELOPED SUCH
SURROUNDING TIDE AND SUBMERGED LANDS AS SHALL BE REASONABLY
NECESSARY IN THE OPINION OF THE COUNCIL FOR THE USE AND ENJOYMENT OF
THE STRUCTURES AND IMPROVEMENTS THEREON BY THE OWNER OR CLAIMANT,
BUT SHALL NOT INCLUDE ANY TIDE OR SUBMERGED LANDS WHICH IF GRANTED TO
SUCH OCCUPANT, WOULD UNJUSTLY DEPRIVE ANY OCCUPANT OF ADJOINING
LANDS FROM HIS REASONABLE USE AND ENJOYMENT THEREOF.]
11.15.030 Approval and [A]Acceptance of State [C]Conveyance.
The conveyance by the State to the City, dated January 6, 1977 of tidelands and submerged
lands lying seaward of the City is hereby approved and accepted and the lands therein are hereby
declared incorporated into the limits of the City.
11.15.040 Approval and [A]Adoption of [S]Subdivision [P]Plat.
The Tidelands Subdivision Plat, hereinafter called “Plat” is hereby approved and adopted as the
official Tidelands Subdivision Plat of the City of Kenai, Alaska, of tide and submerged lands
conveyed by the State to the City by conveyance dated January 6, 1977. Said Alaska Tidelands
Survey is numbered 272 and is filed under 76-179 in the Kenai Recording District.
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[11.15.050 TIME AND PLACES OF POSTING PLAT.
SAID PLAT SHALL BE POSTED FOR A PERIOD OF NOT LESS THAN SIXTY (60) DAYS,
COMMENCING WITH THE DATE FOLLOWING THE DATE OF FINAL PASSAGE OF THIS
ORDINANCE, IN THE OFFICE OF THE CLERK, CITY HALL BUILDING.
11.15.060 PUBLICATION OF NOTICE OF POSTING PLAT AND PLAT AND
PASSAGE OF ORDINANCE.
THE CLERK SHALL CAUSE TO BE ISSUED AND PUBLISHED ONCE A WEEK FOR FOUR
WEEKS, IN A NEWSPAPER OF GENERAL CIRCULATION IN THE CITY, COMMENCING THE
DAY AFTER THE DATE OF FINAL PASSAGE OF THIS ORDINANCE, A NOTICE OF THE
POSTING OF SAID PLAT CONTAINING THE FOLLOWING STATEMENTS:
(A) TIME AND PLACE OF POSTING.
(B) THE DAY OF FINAL PASSAGE AND THE EFFECTIVE DATE OF THIS ORDINANCE
WHICH ADOPTS THE PLAT AS THE OFFICIAL TIDELANDS SUBDIVISION PLAT OF THE
TIDE AND SUBMERGED LANDS CONVEYED BY THE STATE TO THE CITY ON
JANUARY 6, 1977.
(C) THAT ANY AND ALL PERSONS HAVING OR CLAIMING PREFERENCE RIGHTS
PROVIDED BY LAW AND AS HEREIN DEFINED TO ANY PART OR PARTS OF THE
SUBDIVIDED LAND EMBRACED WITHIN THE BOUNDARIES OF SAID PLAT, WHO FAIL
TO APPLY TO EXERCISE SUCH RIGHTS UNDER THE PROVISIONS OF THIS
ORDINANCE WITHIN TWO (2) YEARS FROM AND AFTER OCTOBER 6, 1979, WHICH IS
HEREBY DECLARED TO BE THE DATE UPON WHICH APPLICATIONS THEREFOR WILL
BE FIRST ACCEPTED BY THE CITY, SHALL HAVE FORFEITED THEIR PREFERENCE
RIGHTS PROVIDED BY LAW AND THIS ORDINANCE.
(D) THAT THIS ORDINANCE WAS ENACTED TO PROTECT OCCUPANTS HAVING
PREFERENCE RIGHTS, TO AFFORD DUE PROCESS OF LAW, TO PROVIDE
PROCEDURES FOR APPLYING FOR EXERCISE OF PREFERENCE RIGHTS, FOR
HEARING AND ADJUDICATING ADVERSE CLAIMS, AND FOR CONVEYING TITLE TO
OCCUPANTS HOLDING PREFERENCE RIGHTS DEFINED BY LAW AND THIS
ORDINANCE.
(E) THAT COPIES OF THIS ORDINANCE AND APPLICATION FORMS ARE AVAILABLE
AT THE OFFICE OF THE CLERK OF THE CITY.
11.15.070 TIME IN WHICH APPLICATIONS WILL BE ACCEPTED FOR
FILING.
APPLICATION FORMS, IN SUBSTANTIALLY THE FORM SET FORTH IN KMC 11.15.290(A)
WILL BE ACCEPTED FOR FILING ONE BUSINESS DAY AFTER THE EFFECTIVE DATE OF
THIS ORDINANCE, AND ENDING TWO CALENDAR YEARS THEREAFTER AND AT THE
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CLOSE OF BUSINESS AT 5:00 P.M., AFTER WHICH NO APPLICATION FORMS WILL BE
FURNISHED AND AFTER WHICH NO APPLICATIONS WILL BE ACCEPTED FOR FILING.
11.15.080 PROCEDURE FOR FILING APPLICATIONS.
APPLICATIONS SHALL BE SUBMITTED, AND WILL BE RECEIVED FOR FILING, ONLY FOR
THE PURPOSE OF CLAIMING PREFERENCE RIGHTS HEREIN DEFINED TO THE
TIDELANDS CONVEYED TO THE CITY BY THE STATE.
(A) APPLICATION FORMS W ILL BE PROVIDED BY THE CLERK WITHOUT CHARGE AT
THE CITY CLERK’S OFFICE IN THE CITY HALL BUILDING.
(B) APPLICATIONS MUST BE SUBMITTED IN TRIPLICATE.
(C) APPLICATIONS NOT CLEARLY LEGIBLE NOR PROPERLY COMPLETED AND
CERTIFIED BY THE APPLICANT WILL NOT BE ACCEPTED FOR FILING. SINCE THE
FACT ALLEGED MAY BE USED IN HEARINGS OF DISPUTES THEIR TRUTH MUST BE
CERTIFIED. THE FACTS ALLEGED WILL ALSO BE THE BASIS FOR THE
CONVEYANCES OF VALUABLE PROPERTY. WILLFUL AND DELIBERATE
MISSTATEMENTS OF FACT WILL BE EQUIVALENT TO ATTEMPTING TO OBTAIN
VALUABLE PUBLIC PROPERTY BY MISREPRESENTATION AND MAY BE
PROSECUTED AS OBTAINING PROPERTY UNDER FALSE PRETENSES.
(D) APPLICATIONS MAY BE MAILED TO THE CITY CLERK, [P.O. BOX 580] 210
FIDALGO AVENE, KENAI, ALASKA, 99611, WITH THE PROPER DEPOSIT COMPUTED
ACCORDING TO THE NATURE OF THE APPLICATION MADE. APPLICATIONS
PROPERLY COMPLETED ACCOMPANIED WITH THE PROPER DEPOSIT WILL BE
STAMPED WITH THE TIME AND DATE OF FILING AND SIGNED BY THE PERSON
ACCEPTING THE DEPOSIT. THE TRIPLICATE COPY WILL THEN BE DELIVERED TO
THE APPLICANT, OR MAILED TO HIM IF A RETURN ENVELOPE WITH POSTAGE
AFFIXED IS FURNISHED OR DELIVERED TO THE CITY CLERK, CITY ADMINISTRATION
OFFICES, AIRPORT TERMINAL BUILDING, KENAI, ALASKA.
(E) ANY APPLICATION FOR A DEED BASED ON AN ASSERTED RIGHT OTHER THAN
A PREFERENCE RIGHT SHALL BE REJECTED.
(F) ANY APPLICATIONS NOT WAIVING THE CLASS II PREFERENCE RIGHT SHALL BE
FILED BY THE CLERK, TOGETHER WITH ALL OTHERS OF LIKE NATURE, TO AWAIT
THE OFFICIAL PROMULGATION OF THE PIERHEAD LINE. THEREAFTER SUCH
APPLICATIONS SHALL BE PROCESSED AS APPLICATIONS UNDER THE CLASS I
RIGHTS.
(G) APPLICATIONS NOT ACCOMPANIED BY THE PROPER DEPOSIT FOR COSTS
SHALL BE REJECTED.
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11.15.090 INITIAL REVIEW BY PLANNING & ZONING COMMISSION.
AFTER INITIAL REVIEW OF THE APPLICATION BY THE COMMISSION, THE APPLICANT
SHALL HAVE PREPARED AT HIS OWN COST A PRELIMINARY AND FINAL PLAT AS
DESCRIBED IN THE FOLLOWING SECTION.
11.15.100 PRELIMINARY PLAT.
(A) THE APPLICANT SHALL PREPARE, OR HAVE PREPARED, A PRELIMINARY PLAT
OF THE TIDE, SHORE, OR SUBMERGED LANDS WHICH HE CLAIMS. THIS PLAT SHALL
COMPLY WITH THE REQUIREMENTS HEREINAFTER SET FORTH.
(B) THE PURPOSE OF A PRELIMINARY PLAT IS TO AFFORD THE OCCUPANT AN
OPPORTUNITY OF RECEIVING PRELIMINARY REVIEW AND PREVENT THE
UNNECESSARY EXPENDITURE OF MONEY AND TIME THAT WOULD BE
NECESSITATED IF MAJOR CHANGES WERE REQUIRED.
(C) THE APPLICANT MUST FILE HIS APPLICATION ACCOMPANIED BY FOUR BLACK
OR BLUE-LINED PLATS OF THE LAYOUT.
(D) THE PLANNING & ZONING COMMISSION SHALL FORWARD THE PRELIMINARY
PLAT TO AN ENGINEER TO BE DESIGNATED BY THE PLANNING & ZONING
COMMISSION, WHO SHALL REPORT TO THE PLANNING & ZONING COMMISSION HIS
APPROVAL OR DISAPPROVAL OF THE PLAT FOR TECHNICAL OR ENGINEERING
REASONS AND THE PLANNING & ZONING COMMISSION SHALL, WITHIN NINETY (90)
DAYS AFTER SUBMISSION OF THE PRELIMINARY PLAT, NOTIFY THE APPLICANT OF
THE TENTATIVE APPROVAL OR DISAPPROVAL OF THE PLAT AND HIS REASONS
THEREFOR.
(E) CONDITIONAL APPROVAL OF THE PRELIMINARY PLAT SHALL NOT CONSTITUTE
APPROVAL OF THE FINAL PLAT. RATHER, IT SHALL BE DEEMED AN EXPRESSION OF
APPROVAL AS A GUIDE TO PREPARATION OF THE FINAL PLAT.
11.15.110 PRELIMINARY PLAT REQUIREMENTS.
THE PRELIMINARY PLAT SHALL SHOW THE FOLLOWING INFORMATION:
(A) LEGAL DESCRIPTION OF LOCATION TO INCLUDE LATITUDE AND LONGITUDE TO
THE NEAREST MINUTE AT ONE CORNER OF THE SURVEY AND THE TOTAL ACRES
OF THE AREA OCCUPIED OR CLAIMED.
(B) NAME AND ADDRESS OF APPLICANT AND NAME OF LAND SURVEYOR, IF ANY,
WHO PREPARED THE PRELIMINARY LAYOUT.
(C) THE HORIZONTAL SCALE SHALL BE 100’ TO THE INCH UNLESS OTHERWISE
APPROVED BY THE PLANNING & ZONING COMMISSION.
(D) DATE OF PREPARATION AND NORTH POINT.
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(E) THE HORIZONTAL SCALE SHALL BE 100’ TO THE INCH UNLESS OTHERWISE
APPROVED BY THE PLANNING & ZONING COMMISSION.
(F) THE LOCATION OF ALL ROADS WITHIN 200’ OF THE TRACT, FILL MATERIAL,
EXISTING PERMANENT BUILDINGS, OR OTHER STRUCTURES WITHIN THE PARCEL,
EXISTING UTILITY LINES, MEAN HIGH AND LOW TIDE LINES WITH REFERENCE TO
PERMANENT STRUCTURES AND OTHER PERMANENT FEATURES SUCH AS SECTION
LINES, AND SUCH OTHER INFORMATION AS MAY BE REQUESTED BY THE CITY.
(G) SPACE FOR APPROVAL AND/OR COMMENT BY THE PLANNING & ZONING AND
HARBOR COMMISSIONS.
(H) THE NAMES OF ADJACENT OWNERS OR CLAIMANTS, IF ANY, OTHER THAN THE
CITY.
(I) ADJACENT U.S. SURVEYS, IF ANY, GIVING THE NUMBER OF THE SURVEY.
(J) A VICINITY SKETCH OR KEY MAP SHOULD BE SHOWN ON THE PRELIMINARY
LAYOUT. THE SCALE SHALL NOT BE LESS THAN ONE-HALF INCH TO THE MILE. THE
RELATIVE LOCATION OF THE PARCEL BEING APPLIED FOR, THE PRINCIPAL ROAD
SYSTEMS AND SECTION OR SPECIAL SURVEY LINES SHALL ALSO BE SHOWN.
11.15.120 SURVEY PROCEDURE.
WHEREVER FEASIBLE, DATA AS SET FORTH IN ATS 272, RECORDED IN THE KENAI
RECORDING DISTRICT AS 76-179 SHALL BE USED. WHERE ADDITIONAL DATA IS
REQUIRED THE FOLLOWING PROCEDURES SHALL GOVERN:
(A) DETERMINING THE LINE OF MEAN HIGH TIDE.
(1) IN THE CASE OF U.S. SURVEY WHICH ABUTS THE TIDELANDS, SUCH U.S.
SURVEY BEING MADE PRIOR TO THE DATE OF STATEHOOD, THE LINE OF MEAN
HIGH TIDE SHALL BE CONSTRUED TO BE EITHER THE MEANDER LINES
ESTABLISHED ON THE SEAWARD SIDE OF THE U.S. SURVEY OR THE LINE AS
DEFINED UNDER SECTION 2(S) OF THESE REGULATIONS, WHICHEVER IS THE
LOWER.
(2) FOR TIDELANDS SURVEYS ABUTTING ANY U.S. SURVEY MADE AFTER THE
DATE OF STATEHOOD OR IN ANY LOCATION WHERE NO UPLANDS SURVEY
EXISTS, THE LINE OF MEAN HIGH TIDE SHALL BE DETERMINED BY USING
U.S.C. & G.S. BENCH MARKS (OR ANY OTHER BENCH MARKS WHICH HAVE BEEN
ESTABLISHED FROM THAT SOURCE), AND TIDE TABLE DATUM. THE UPLAND
BOUNDARY NEED NOT FOLLOW THIS LINE IN ITS ENTIRE EXACTNESS, BUT MAY
FOLLOW IN A “MEANDER” OR “AVERAGE” LINE OF MEAN HIGH TIDE. EACH END
OF THE BOUNDARY SHOULD BE ESTABLISHED ON THE ELEVATION OF MEAN
HIGH TIDE. PROVIDED, HOWEVER, THAT WHERE THE TRUE LINE OF MEAN HIGH
TIDE HAS BEEN ALTERED BY FILL OR ARTIFICIAL ACCRETION, THE LINE OF HIGH
TIDE AS IT EXISTED PRIOR TO SUCH ALTERATION SHALL GOVERN.
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(3) IN THE CASE THAT NO U.S.C. & G.S. BENCH MARK EXISTS WITHIN ONE MILE
OF THE PROPERTY BEING SURVEYED, THE SURVEYOR MAY, BY USING THE
TIDE TABLES FOR THE IMMEDIATE BODY OF WATER, AND APPLYING TIDAL
READINGS HE HAS TAKEN, DETERMINE THE LINE OF MEAN HIGH TIDE AND USE
IT IN ACCORDANCE WITH PARAGRAPH (2) OF THIS SECTION. IN SOME CASES,
SUCH AS SALT OR MUD FLAT AREAS WHERE THE AVERAGE GRADE OF THE
BENCH IS TEN PERCENT (10%) OR LESS AND DETERMINING THE ELEVATION OF
THE LINE OF MEAN HIGH TIDE COULD CREATE A LENGTHY HORIZONTAL
DISTANCE, THE CITY COUNCIL MAY REQUIRE THAT THE TRUE LINE OF MEAN
HIGH TIDE BE ESTABLISHED, REGARDLESS OF THE DISTANCE FROM A KNOWN
BENCH MARK.
(B) METHOD OF ESTABLISHING SIDE BOUNDARY LINES.
(1) IN FIXING THE SIDE BOUNDARY LINES, THE GENERAL RULES OF
EXTENDING RIPARIAN BOUNDARY LINES, AS OUTLINED BY SUCH AUTHORS AS
RAYNER, CLARK OR BROWN, SHALL BE FOLLOWED. IN THE EVENT THAT
ACTUAL OCCUPANCY DOES NOT MATCH THE RIPARIAN BOUNDARIES, THE
SURVEY SHALL BE MADE TO INCLUDE THE OCCUPANT’S HOLDINGS AND NOT
TO ENCROACH ON THE ADJOINING OCCUPANT.
11.15.130 PROCEDURE ON FINAL PLAT.
(A) THE FINAL PLAT SHALL CONFORM SUBSTANTIALLY TO THE PRELIMINARY
LAYOUT AS APPROVED BY THE COMMISSION.
(B) THE FINAL PLAT SHALL BE SUBMITTED TO THE CITY CLERK ON GOOD QUALITY
TRACING CLOTH, IN INK, OR MYLARS TOGETHER WITH FIVE PRINTS.
(C) THE FINAL PLAT SHALL BE DRAWN TO SCALE OF 1” EQUALS 100’, WITH AN
OPTION OF USING 1” EQUALS 20’ OR 40’, ON SHEETS OF ONE OF THREE SIZES: 18”
X 24”, 31 1/2” X 34”, OR 22” X 36”, UNLESS OTHERWISE APPROVED BY THE
COMMISSION. WHEN MORE THAN ONE SHEET IS REQUIRED, AN INDEX SHALL BE
FILED SHOWING THE ENTIRE PARCEL WITH THE SHEETS IN NUMERICAL ORDER,
AND EACH SHEET SHOWING THE TOTAL NUMBER, I.E., SHEET 1 OF 3. WHEN MORE
THAN ONE SHEET IS SUBMITTED, ONLY THE LAST MUST HAVE THE APPROVAL
BLOCKS, BUT ALL SHEETS MUST BE THE SAME SIZE.
(D) WHEN THE FINAL PLAT HAS BEEN APPROVED BY THE PLANNING & ZONING
COMMISSION, ONE COPY SHALL BE SENT, ALONG WITH THE DEED TO THE
PROPERTY, TO THE MAGISTRATE OF THE RECORDING DISTRICT IN WHICH THE
TRACT LIES FOR OFFICIAL RECORDING. SPECIAL INSTRUCTIONS SHALL BE SENT
TO THE MAGISTRATE INSTRUCTING HIM TO SEND THE DEED TO THE OCCUPANT
AFTER RECORDING. ONE COPY OF THE PLAT WILL BE RETURNED TO THE
OCCUPANT. THE ORIGINAL TRACING CONTAINING THE CERTIFICATION BY THE
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PLANNING & ZONING COMMISSION WILL BE RETAINED BY THE CITY. PRINTS OR
DUPLICATE TRANSPARENCIES WILL BE FURNISHED AT COST OF REPRODUCTION.
11.15.140 FINAL PLAT REQUIREMENTS.
(A) THE FINAL PLAT SHALL INCLUDE ALL INFORMATION REQUIRED ON THE
PRELIMINARY PLAT.
(B) THE FINAL PLAT MUST REPRESENT AN ACTUAL SURVEY MADE BY A PERSON
WHO HAS BEEN QUALIFIED BY THE STATE OF ALASKA, BOARD OF ENGINEERS &
ARCHITECTS EXAMINERS TO PRACTICE LAND SURVEYING IN THE STATE OF
ALASKA.
(C) IN ADDITION THERETO, THE FOLLOWING INFORMATION SHALL BE SHOWN ON
THE FINAL PLAT:
(1) BOUNDARY LINES OF THE PARCEL WITH LENGTH AND BEARINGS WHICH
MUST CLOSE WITHIN THE LIMITS OF ONE TO 5,000. IF THE SEAWARD LIMITS OF
THE SURVEY FALLS WITHIN THE LINE OF MEAN LOW TIDE, THE SEAWARD
BOUNDARY MUST REPRESENT LINES ACTUALLY ESTABLISHED BY THE
SURVEYOR.
(2) ALL EASEMENTS AS REQUIRED BY THE CITY.
(3) BASIS OF BEARINGS USED.
(4) A PROPERLY LABELED LEGEND SHOWING MONUMENTS AS FOUND OR
ESTABLISHED.
(5) THE COURSE OF THE SHORELINE FOR AN ADDITIONAL 400’ FROM EACH
SIDE OF THE SURVEY.
(D) MONUMENTS.
(1) MINIMUM REQUIREMENTS: MONUMENTS SHALL CONSIST OF A 1 1/2”
GALVANIZED IRON PIPE, 30 OR MORE INCHES LONG. THIS PIPE SHALL HAVE A
FOUR-INCH FLANGE ACROSS THE BOTTOM AND SHALL BE FILLED WITH
CONCRETE. FIRMLY EMPLACED IN THE CONCRETE AT THE TOP SHALL BE A
BRASS OR BRONZE CAP. THE PIPE SHALL BE THOROUGHLY TAMPED WHEN
SET.
(2) THE BRASS OR BRONZE CAP SHALL HAVE A MINIMUM OF TWO-INCH
DIAMETER ACROSS THE TOP AND 3/4” BY 2 1/2” SHANK. EACH CAP SHALL BE
MARKED IN ACCORDANCE WITH THE MANUAL OF SURVEYING INSTRUCTIONS
AS COMPILED BY THE BUREAU OF LAND MANAGEMENT AND SHALL ALSO SHOW
THE REGISTRATION NUMBER OF THE SURVEYOR.
(3) WHERE IMPRACTICABLE TO SET AN IRON PIPE MONUMENT, A TABLET
CONTAINING A MINIMUM OF ONE THOUSAND (1,000) CUBIC INCHES OF
CONCRETE AND A BRASS OR BRONZE CAP MARKING THE ACTUAL CORNER
POINT MAY BE USED. SHOULD THE POINT FOR A CORNER BE IN A PLACE WHICH
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WOULD BE IMPRACTICABLE TO MONUMENT, WITNESS CORNERS SHALL BE SET
IN A SAFE PLACE ON THE SURVEY BOUNDARY LINE OR HAVE TWO (2)
REFERENCE MONUMENTS SET. THE MONUMENTS ON THE UPLANDS SIDE OF
THE SURVEY SHALL BE REFERENCED TO BEARING OBJECTS, SUCH AS TREES,
ROCKS, PILING, BUILDINGS, ETC., OR HAVE TWO (2) REFERENCE MONUMENTS
SET MARKING THE CORNER.
(E) THESE REFERENCES MAY BE SHOWN ON THE PLAT OF SURVEY OR MAY BE
LISTED SEPARATELY ON A PLAT AS DESCRIBED UNDER KMC 11.15.130(C).
(1) UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL, EACH SURVEY
SHALL HAVE AT LEAST FOUR (4) MONUMENTS, EACH FULLY DESCRIBED IN THE
PLAT OF SURVEY. IT IS DESIRABLE BUT NOT MANDATORY THAT MONUMENTS
BE SET AT ALL EXTERIOR ANGLE POINTS OF THE PARCEL. THE LINE OF SIGHT
BETWEEN ADJACENT MONUMENTS SHALL BE UNOBSTRUCTED. THE DISTANCE
BETWEEN ADJACENT MONUMENTS SHALL NOT EXCEED ONE THOUSAND
THREE HUNDRED TWENTY FEET (1,320′). NO PART OF THE PARCEL SHALL BE
FARTHER THAN ONE THOUSAND THREE HUNDRED TWENTY FEET (1,320′) FROM
A MONUMENT UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL.
(2) IF THE POINT FOR THE SEAWARD CORNER FALLS IN AN UNSAFE PLACE, A
WITNESS CORNER SHALL BE ESTABLISHED ON THE SIDE BOUNDARY LINE.
(F) RELATIONSHIP TO KNOWN MONUMENT.
(1) BEARINGS OF ALL LINES SHALL BE REFERRED TO THE TRUE MERIDIAN.
THE MAGNETIC NEEDLE MAY NOT BE USED FOR THIS PURPOSE. BEARINGS
SHALL BE OBTAINED BY DEFLECTION FROM EXISTING OFFICIAL SURVEYS AT
THE G.L.O., B.L.M., U.S.C., AND G.S., U.S.G.S., THE ALASKA DIVISION OF LANDS,
OR MONUMENTS WITH PROPER IDENTIFICATION WHICH ARE DELINEATED ON
RECORDED PLATS, UNLESS OTHERWISE PROVIDED FOR IN THESE
REGULATIONS.
(2) TRUE BEARINGS AND DISTANCES TO THE NEAREST ESTABLISHED SURVEY
LINES, SUCH AS THOSE LISTED PREVIOUSLY, WHICH SHALL BE ACCURATELY
DESCRIBED ON THE PLAT, SHALL BE SHOWN.
11.15.150 DEPOSITS FOR COSTS PREREQUISITE TO FILING.
THE APPLICATION FORM WILL ASSIST THE APPLICANT IN DETERMINING THE PROPER
COSTS TO ADVANCE, WHICH WILL DEPEND UPON THE NATURE OF THE RIGHT
CLAIMED. IN ALL CASES A FILING FEE AS SET FORTH IN THE CITY’S SCHEDULE OF FEES
ADOPTED BY THE CITY COUNCIL SHALL BE REQUIRED. SURVEY COSTS DEPEND UPON
THE AREA CLAIMED AT A PER FOOT RATE AS SET FORTH IN THE CITY’S SCHEDULE OF
FEES. IF THE AREA CLAIMED IS DIFFERENT FROM THE LOT AS IT APPEARS ON THE
PLAT, THE APPLICANT SHALL SHOW THE MEASUREMENTS OF THE ADDITIONAL OR
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LESSER AREA CLAIMED AND COMPUTE AND PAY THE DIFFERENT SURVEY COST
ACCORDINGLY. TRANSFER COSTS WILL BE THE SAME IN ALL CASES. THEY COVER THE
COST OF TIME ESTIMATED TO BE REQUIRED TO EXAMINE, PROCESS, AND APPROVE
THE APPLICATION, AS WELL AS TO PREPARE AND EXECUTE THE DEED, PUBLISH
NOTICE, GIVE NOTICE OF ADDITIONAL COSTS, IF ANY, AND GIVE NOTICE TO
APPLICANT. IN ALL CASES, TRANSFER COSTS WILL BE IN AN AMOUNT AS SET FORTH
IN THE CITY’S SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL. DEPOSIT FOR
APPRAISAL COSTS WILL BE REQUIRED IN ALL CASES OF CLASS III PREFERENCE
RIGHTS, OR WHERE ANOTHER ASSERTED RIGHT IS DETERMINED BY THE COUNCIL TO
BE A CLASS III RIGHT. APPRAISAL COSTS SHALL DEPEND UPON THE AREA INVOLVED
AND THE COMPLEXITY OF THE APPRAISAL SOUGHT. WHERE REQUIRED AS A DEPOSIT,
THE MINIMUM AND MAXIMUM DEPOSIT FOR THE APPRAISAL FEE SHALL BE AS SET
FORTH IN THE CITY’S SCHEDULE OF FEES.
11.15.160 ADDITIONAL COSTS IN CERTAIN CASES.
ASIDE FROM DEPOSITS REQUIRED AT THE TIME OF FILING APPLICATIONS, ADDITIONAL
COSTS WILL BE REQUIRED TO BE PAID PRIOR TO HEARINGS WHERE DISPUTES
REQUIRE HEARINGS, AND FOR COST OF LAND UNDER A CLASS III RIGHT AS WELL AS
APPRAISAL THEREOF WHEN A PREFERENCE RIGHT SOUGHT TO BE EXERCISED IS
DETERMINED TO BE A CLASS III RIGHT, AS FOLLOWS:
(A) WHEN THE AREA CLAIMED DOES NOT COMPLY WITH THE BOUNDARIES OF THE
LOT SHOWN ON THE PLAT, IT IS NECESSARY TO HAVE A HEARING TO ESTABLISH
THE VALIDITY OF THE RIGHT CLAIMED AND WHETHER IT IS NECESSARY FOR THE
PLAT TO BE CHANGED TO COMPLY WITH THE APPLICATION. THIS MAY REQUIRE
NOTICE TO BE GIVEN TO ADJACENT OCCUPANTS INTERESTED IN THE DIFFERENCE
BETWEEN THE LANDS CLAIMED AND LAND AS SHOWN ON THE PLAT SO THAT ALL
PARTIES IN INTEREST MAY BE HEARD AT THE HEARING.
(B) WHEN APPLICATIONS CONFLICT WITH THE SAME AREA OR PORTIONS
THEREOF, IT SHALL BE NECESSARY TO CONDUCT A HEARING TO DETERMINE THE
FACT AND THE ISSUE IN QUESTION. CONFLICTING CLAIMS WILL BE CAREFULLY
SCRUTINIZED AND EACH DISPUTING PARTY WILL BEAR THE BURDEN OF PROVING
FACTS SUFFICIENT TO ESTABLISH THE VALIDITY OF HIS OR HER CLAIM.
(C) THE PARTY FILING AN APPLICATION CONFLICTING WITH A CLAIM PREVIOUSLY
FILED SHALL BE REQUIRED TO DEPOSIT HEARINGS COSTS IN THE AMOUNT OF ONE
HUNDRED DOLLARS ($100.00). IF THE CONFLICT IS NOT KNOWN AT THE TIME OF
FILING, THE APPLICANT SHALL BE ADVISED OF THE CONFLICT AS SOON AS IT IS
KNOWN AND OF THE NEED TO DEPOSIT THE HEARING COST DEPOSIT.
(D) THE APPLICANT WHO AFTER HEARING AND DETERMINATION BY THE COUNCIL
IS DETERMINED TO HAVE CLAIMED THE LAND OF ANOTHER SHALL BE THE PARTY
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TO BEAR THE COST OF THE HEARING. IF SUCH PARTY DID NOT DEPOSIT SUCH
COSTS, NO DEED SHALL BE DELIVERED TO HIM OR HER UNTIL THE COST IS PAID.
WHERE THE DEPOSITOR IS THE PREVAILING PARTY, THE HEARING COST
DEPOSITED SHALL BE REFUNDED TO HIM OR HER BY THE CITY.
(E) WHEN TITLE BY CLASS III PREFERENCE RIGHT IS CLAIMED, THE APPLICANT
SHALL BE REQUIRED TO DEPOSIT THE APPRAISED PURCHASE PRICE AFTER
APPRAISAL HAS BEEN MADE AND THE PURCHASE PRICE HAS BEEN SO
DETERMINED. THE SAME PROCEDURE WILL BE APPLIED WHEN NO APPLICATION
UNDER ANOTHER CLASS OF RIGHT IS SOUGHT BUT IS DETERMINED THAT THE
ONLY AVAILABLE RIGHT TO THE APPLICANT IS A CLASS III RIGHT.
(F) WHEN A PREFERENCE RIGHT IS SOUGHT TO BE EXERCISED OTHER THAN A
CLASS III RIGHT AND SUCH RIGHT IS DETERMINED TO BE A CLASS RIGHT, THEN
THE APPLICANT SHALL BE REQUIRED TO DEPOSIT THE ESTIMATED COST OF
APPRAISING THE PROPERTY CLAIMED.
(G) THE APPLICANT WHO RECEIVES THE DEED FROM THE CITY SHALL AT HIS OR
HER OWN COST BEAR THE COST OF RECORDING THE DEED.
11.15.170 PROCEDURES FOR PROCESSING FILED APPLICATIONS.
THE CLERK SHALL CAUSE THE FOLLOWING PROCEDURES TO BE CARRIED OUT:
(A) ALL COPIES OF APPLICATIONS ACCEPTED FOR FILING SHALL BE STAMPED WITH
TIME AND DATE OF FILING AND AN APPLICATION NUMBER IN CHRONOLOGICAL ORDER
OF FILING.
(B) ALL ORIGINAL APPLICATIONS SHALL BE FILED IN A PERMANENT REGISTER AND
THE NAMES OF THE APPLICANTS ENTERED IN AN ALPHABETICAL INDEX WHICH SHALL
BE A PERMANENT PART OF SUCH REGISTER.
(C) THE APPLICATION REGISTER SHALL BE AVAILABLE FOR PUBLIC INSPECTION
DURING OFFICE HOURS OF THE CLERK EXCEPT WHEN IN ACTUAL USE FOR FILING AND
INDEXING.
(D) CERTIFIED COPIES OF ALL APPLICATIONS SHALL BE PREPARED FOR ALL PERSONS
UPON REQUEST UPON THEIR PAYING TWO DOLLARS ($2.00) PER PAGE FOR COPIES OF
SAID APPLICATIONS AND ANY ATTACHMENTS FORMING A PART THEREOF.
(E) PROCESSING OF DUPLICATE APPLICATIONS. THE THIRD COPY OF THE
APPLICATION WILL BE RETURNED TO THE APPLICANT AS HIS OR HER RECORD AND AS
RECEIPT FOR DEPOSIT MADE, OR MAILED TO APPLICANT IF HE OR SHE HAS PROVIDED
A RETURN ENVELOPE. THE SECOND COPY SHALL BE THE WORKING FILE COPY TO BE
HANDLED AND PROCESSED AS FOLLOWS:
(1) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING WAIVERS
ATTACHED AND WHICH APPLY FOR LANDS WHICH COMPLY WITH THE PLAT WITH
RESPECT TO AREA AND BOUNDARY LOCATIONS SHALL BE TRANSMITTED TO THE
CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC 11.15.190. APPLICATIONS TO
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EXERCISE CLASS I PREFERENCE RIGHTS WHICH DO NOT HAVE WAIVERS
ATTACHED, IRRESPECTIVE OF WHETHER THE LANDS APPLIED FOR COMPLY W ITH
THE PLAT SHALL BE SEGREGATED FOR HANDLING IN THE SAME MANNER AS CLASS
II PREFERENCE RIGHT APPLICATIONS.
(2) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING WAIVERS
ATTACHED, AND WHICH CLAIM LANDS WHICH DO NOT COMPLY WITH THE PLAT
WITH RESPECT TO AREA AND BOUNDARY LOCATIONS, SHALL BE TRANSMITTED TO
THE CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC 11.15.190 AND FURTHER
PROCESSING AS PROVIDED IN KMC 11.15.220.
(3) APPLICATIONS TO EXERCISE CLASS II PREFERENCE RIGHTS SHALL BE
SEGREGATED AND KEPT WITH CLASS I PREFERENCE RIGHT APPLICATIONS NOT
HAVING WAIVERS ATTACHED. ALL SUCH APPLICATIONS SHALL BE HELD IN
ABEYANCE BY THE CITY UNTIL SUCH TIME AS THE PIERHEAD LINE IS ESTABLISHED
BY THE CORPS OF ENGINEERS, WHEREUPON SUCH APPLICATIONS SHALL BE
PROMPTLY HONORED AND PROCESSED IN THE MANNER HEREIN DESCRIBED FOR
CLASS I PREFERENCE RIGHT APPLICATIONS, WHERE WAIVERS ARE ATTACHED.
(4) APPLICATIONS TO EXERCISE CLASS III PREFERENCE RIGHTS, AND ALL
APPLICATIONS DETERMINED IN WHOLE OR IN PART TO BE CLASS III, SHALL BE
TRANSMITTED TO THE ASSESSOR FOR APPRAISAL AS PROVIDED IN KMC 11.15.180.
(5) NO APPLICATIONS WHICH COMBINE CLASS I, CLASS II, AND CLASS III, OR ANY
COMBINATION OF SUCH PREFERENCE RIGHTS, W ILL BE ACCEPTED FOR FILING.
ANY SUCH APPLICATION PRESENTED FOR FILING SHALL BE RETURNED TO THE
APPLICANT FOR REVISION INTO TWO OR MORE APPLICATIONS, EACH OF WHICH
WILL APPLY FOR LAND UNDER ONLY ONE TYPE OF PREFERENCE RIGHT.
(6) AN APPLICATION TO EXERCISE ONE CLASS OF PREFERENCE RIGHT WHICH IN
PART COMPLIES WITH THE PLAT WITH RESPECT TO AREA AND BOUNDARY
LOCATIONS, BUT DOES NOT WHOLLY COMPLY WITH THE PLAT IN SUCH RESPECTS,
SHALL BE TREATED AS IF NO PART OF THE APPLICATION SO COMPLIES WITH THE
PLAT AND SHALL BE PROCESSED FOR CONTEST HEARING.
11.15.180 APPRAISAL.
ALL APPLICATIONS FOR CLASS II PREFERENCE RIGHTS SHALL BE TRANSMITTED TO A
PROFESSIONAL APPRAISER FOR APPRAISAL. HIS APPRAISAL SHALL BE MADE ON A
FORM PREPARED IN DUPLICATE, THE ORIGINAL OF WHICH SHALL BE ATTACHED TO
THE APPLICATION AND THE DUPLICATE OF WHICH SHALL BE RETAINED FOR HIS
RECORDS. APPLICATIONS WHEN APPRAISED SHALL BE TRANSMITTED TO THE CITY
ENGINEER FOR FURTHER PROCESSING.
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11.15.190 REVIEW BY CITY ENGINEER.
ALL APPLICATIONS BEING READY FOR PROCESSING SHALL BE REVIEWED BY THE CITY
ENGINEER. UPON REVIEW AND COMPARISON WITH THE PLAT, HE SHALL MAKE HIS
REQUEST TO THE HARBOR COMMISSION GIVING A COPY THEREOF TO THE APPLICANT
AS TO WHETHER OR NOT THE APPLICATION SEEKS TO EXERCISE A PREFERENCE
RIGHT TO LAND WHICH IS DESCRIBED ON THE PLAT, AND COMPLIES WITH IT IN
RESPECT TO AREA AND BOUNDARY LOCATIONS.
11.15.200 RECOMMENDED APPROVAL BY COMMISSION.
THE CITY OF KENAI [ADVISORY HARBOR] PLANNING & ZONING COMMISSION SHALL
REVIEW ALL APPLICATIONS FOR TIDELANDS UPON THE SUBMISSION OF THE CITY
ENGINEER’S REPORT. THE PLANNING & ZONING COMMISSION MAY CONDUCT PUBLIC
HEARINGS TO VERIFY THE VALIDITY OF THE APPLICANT’S CLAIM AND REQUEST
ADDITIONAL EVIDENCE BY WAY OF AFFIDAVITS AND THE LIKE IN ORDER TO COME TO
RECOMMEND SAID CLAIM FOR APPROVAL BY THE CITY COUNCIL NOTIFYING
APPLICANT THEREOF BY MAIL SENT TO THE ADDRESS STATED ON HIS APPLICATION.
THE PLANNING & ZONING COMMISSION MAY PROVIDE A CHECK-OFF LIST TO AID IT IN
CONSIDERING APPLICATIONS. THE CITY COUNCIL SHALL CONSIDER FOR APPROVAL
THE CLAIM OF THE APPLICANT WITHIN THE TIME LIMITATIONS AND WITH THE RIGHT OF
APPEAL GIVEN PURSUANT TO KMC 11.15.240.
11.15.210 PROCESSING OF APPROVED APPLICATIONS BY CLERK AND
NOTICE TO PUBLIC.
ALL APPLICATIONS RETURNED TO THE CLERK APPROVED BY THE CITY ENGINEER, AND
APPRAISED BY THE ASSESSOR IF REQUIRED, SHALL BE PROCESSED BY THE CLERK IN THE
FOLLOWING MANNER:
(A) THE CLERK SHALL ASCERTAIN IF THE DEPOSIT MADE BY THE APPLICANT IS
SUFFICIENT TO PAY ALL KNOWN AND ESTIMATED COSTS OF SURVEY, APPRAISAL,
TRANSFER, AND PURCHASE, IF OF CLASS III AND IF NOT, TO ADVISE THE APPLICANT
THAT THE REMINDER DUE SHALL BE DEPOSITED WITH THE CLERK BEFORE FURTHER
PROCESSING.
(B) IF OR WHEN THE DEPOSIT IS SUFFICIENT TO PAY ALL SUCH COSTS, THE CLERK
SHALL CAUSE TO BE PUBLISHED ONCE A WEEK FOR FOUR WEEKS, IN A NEWSPAPER
OF GENERAL CIRCULATION IN THE CITY, THE FOLLOWING:
(1) NOTICE OF THE NAMES OF THE APPLICANT(S), THE BLOCK AND LOT NUMBERS
OF THE PROPERTY CLAIMED ACCORDING TO PLAT DESIGNATIONS;
(2) THE PREFERENCE RIGHT CLAIMED;
(3) THE IMPROVEMENTS MADE;
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(4) THE LENGTH OF TIME (INCLUDING THE DATES) THE APPLICANT OCCUPIED THE
LAND; AND
(C) IF CLASS III ITS APPRAISED VALUE, AND THAT THE CITY WILL ISSUE TO THE
APPLICANT(S) ITS DEED THEREFOR WITHIN THIRTY (30) DAYS AFTER THE LAST DATE
OF PUBLICATION, PROVIDED THAT BEFORE DATE OF LAST PUBLICATION NO ADVERSE
APPLICATION OR CLAIM HAS BEEN FILED WITH THE CITY.
(D) DURING SAID PERIOD OF PUBLICATION, THE APPLICATIONS THEREOF SHALL BE
RETURNED TO THE CITY ENGINEER WHO, AT THE END OF SAID PERIOD OF
PUBLICATION, SHALL NOTE ON THE APPLICATION WHETHER OR NOT ANY ADVERSE
CLAIMS HAVE BEEN FILED FOR THE LAND IN QUESTION.
(E) IF ADVERSE CLAIMS HAVE BEEN FILED, THE APPLICATIONS SHALL BE FURTHER
PROCESSED FOR HEARING. IF NO ADVERSE CLAIMS HAVE BEEN FILED, THE
RESPECTIVE APPLICATIONS SHALL BE RETURNED TO THE CLERK.
11.15.220 DEEDS—PERMANENT REGISTER.
THE CLERK SHALL THEN CAUSE TO BE PREPARED A QUIT-CLAIM DEED CONVEYING
SUCH LAND TO THE APPLICANT(S) THAT THE CITY HAS AND TRANSMIT THE QUIT -CLAIM
DEED TO THE MANAGER FOR EXECUTION. NOTICE SHALL THEN BE SENT TO THE
APPLICANT TO TAKE DELIVERY OF SAID DEED AT THE OFFICE OF THE CLERK, WHO
SHALL DELIVER THE SAME TO THE APPLICANT IF ALL REQUIREMENTS HAVE BEEN MET
AND ALL COSTS, INCLUDING PURCHASE PRICE, IF REQUIRED, HAVE BEEN PAID.
DUPLICATE ORIGINALS OF ALL EXECUTED DEEDS SHALL BE KEPT IN THE OFFICE OF
THE CLERK IN A PERMANENT REGISTER ENTITLED “KENAI TIDELANDS DEEDS” WITH
PERMANENT ALPHABETICAL INDEX OF GRANTEES.
11.15.230 SPECIAL PROCEEDINGS FOR DISPUTED CLAIMS.
THE PLANNING & ZONING COMMISSION SHALL SIT AS A QUASI ADJUDICATORY BODY
TO SET DISPUTES FOR HEARING AND HEAR THE EVIDENCE UNDER OATH OF THE
PARTIES TO THE DISPUTES. PROCEEDINGS SHALL BE INFORMALLY CONDUCTED BUT
TESTIMONY TAKEN UNDER OATH, AND NOTICE OF THE PROCEEDINGS SHALL BE GIVEN
TO THE DISPUTING PARTIES. THEIR OBJECT SHALL BE TO DETERMINE WITHOUT DELAY
THE RESPECTIVE BASIS OF THE CONFLICTING CLAIMS. UPON THE SUBMISSION OF
EACH DISPUTE, THE PLANNING & ZONING COMMISSION SHALL PREPARE A SHORT
SUMMARY ON THE CONFLICTING CLAIMS AND THE EVIDENCE SUBMITTED IN SUPPORT
THEREOF, TOGETHER WITH THEIR WRITTEN FINDINGS OF FACT, AND CONCLUSIONS
OF LAW.
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11.15.240 PROCEEDINGS FOR DETERMINATION BY COUNCIL OF ALL
DISPUTES.
UPON RECEIPT OF THE WORKING FILES IN ALL CASES OF DISPUTES, AND THE
SUMMARY OF THE HEARINGS OFFICER, TOGETHER WITH COPIES OF NOTICES OF
HEARINGS SERVED UPON OR MAILED TO ALL PARTIES TO THE DISPUTE, THE COUNCIL
SHALL SET THE DISPUTE OF HEARING AND DETERMINATION, AND CAUSE NOTICE TO
BE SERVED ON ALL PARTIES. UPON THE COUNCIL HAVING HEARD THE DISPUTE IT
SHALL ENTER ITS RULING THEREON AS QUICKLY AS POSSIBLE, BUT NOT LATER THAN
TEN (10) DAYS AFTER THE MATTER IS SUBMITTED. AGGRIEVED PERSONS SHALL HAVE
THE RIGHT OF APPEAL TO THE SUPERIOR COURT, WITHIN THIRTY (30) DAYS AFTER
THE RULING OF THE COUNCIL IS RENDERED.
11.15.250 DETERMINATION UPON STIPULATION OF FACTS.
WHEREVER POSSIBLE, TO REACH AGREEMENT OF THE PARTIES AT HEARINGS
BEFORE THE PLANNING & ZONING COMMISSION, A STIPULATION OF FACTS SHALL BE
PREPARED AND AGREED UPON BY THE PARTIES. WHERE THIS IS DONE, THE PLANNING
& ZONING COMMISSION SHALL PREPARE AND ATTACH ITS CONCLUSIONS OF LAW AND
SUBMIT THE FILE TO THE CITY ENGINEER TO DETERMINE IF THE CITY’S INTERESTS
ARE AFFECTED BY THE STIPULATION, OR IF A BOUNDARY CHANGE IS REQUIRED AND
NO THIRD PARTY OR CITY INTERESTS ARE AFFECTED ADVERSELY BY THE PROPOSED
CHANGE IN BOUNDARIES OF LOTS SHOWN ON THE PLAT, UPON APPROVAL OF THE
COUNCIL THE PLAT SHALL BE DIRECTED TO BE CHANGED. SHOULD IT BE DETERMINED
BY THE CITY ENGINEER THAT THE STIPULATION ADVERSELY AFFECTS THE INTEREST
OF THE CITY OR THOSE OF THIRD PARTIES, THE DISPUTE SHALL BE RETURNED TO THE
PLANNING & ZONING COMMISSION FOR FURTHER PROCEEDINGS UPON NOTICE GIVEN.
11.15.260 REJECTION OF PROTESTS OTHER THAN BY APPLICANT.
NO OBJECTIONS WILL BE RECEIVED TO PROPOSED ISSUANCE BY DEED BY THE CITY
ON PUBLICATION OF NOTICE THEREOF, NOR WILL ANY PERSON BE PERMITTED TO
APPEAR AND BE HEARD AT ANY HEARING OF A DISPUTE BEFORE THE PLANNING &
ZONING COMMISSION OR THE COUNCIL, UNLESS SUCH OBJECTOR OR PERSON IS AN
APPLICANT FOR PREFERENCE RIGHTS OF CLASS I OR II AND HAS FILED AN
APPLICATION WITH THE CLERK. THE FOREGOING SHALL NOT PREVENT THE
APPEARANCES BEFORE THE PLANNING & ZONING COMMISSION OR COUNCIL OF
WITNESSES APPEARING ON BEHALF OF THE PARTIES IN DISPUTE OR PERSONS
CALLED BY THE PLANNING & ZONING COMMISSION OR COUNCIL WHO MAY HAVE
PERSONAL KNOWLEDGE CONCERNING THE VERIFICATION OF CLAIMS.
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11.15.270 HANDLING OF DEPOSIT AND PURCHASE FUNDS.
(A) ALL FUNDS RECEIVED AS DEPOSITS WITH APPLICATIONS FOR COSTS OR
PURCHASE PRICE FOR TIDELANDS SHALL BE DEPOSITED BY THE FINANCE
DIRECTOR IN THE GENERAL FUND. SUCH DEPOSITS WILL BE CREDITED BY THE
FINANCE DIRECTOR AS FOLLOWS:
(1) SURVEY COSTS - AS A CREDIT TO DISBURSEMENTS MADE BY THE CITY
FOR COSTS OF PREPARING THE TIDELANDS SUBDIVISION PLAT.
(2) TRANSFER COSTS - TO ADMINISTRATIVE COSTS AS DEEDS ARE ISSUED.
(3) APPRAISAL COSTS - TO ADMINISTRATIVE COSTS AS EARNED, OR AS
CREDIT TO APPRAISAL COSTS INCURRED.
(B) PURCHASE COSTS OF CLASS II LANDS—SHALL BE CREDITED TO A SEPARATE
ACCOUNT IN THE GENERAL FUND TO PAY FOR IMPROVEMENTS IN TIDELANDS
AREAS CONSISTING OF FILL, STREET, SIDEWALK, AND SEWER IMPROVEMENTS.
11.15.280 FORFEITURE OF PREFERENCE RIGHTS.
ANY OCCUPANT, OWNER, OR HOLDER OF PREFERENCE RIGHTS AS HEREIN DEFINED,
WHO HAS NOT APPLIED TO THE CITY FOR TITLE THERETO AS HEREIN PROVIDED, ON
OR BEFORE TWO (2) YEARS AFTER THE DATE APPLICATIONS TO EXERCISE
PREFERENCE RIGHTS WILL BE ACCEPTED FOR FILING BY THE CITY UNDER THIS
ORDINANCE, BY A PROPERLY COMPLETED APPLICATION DULY FILED WITH THE CLERK
AND ACCOMPANIED BY THE REQUIRED DEPOSIT, SHALL HAVE FORFEITED HIS RIGHT
TO ASSERT THIS PREFERENCE RIGHTS AND ACQUIRE TITLE TO TIDELANDS SUBJECT
THERETO FROM THE CITY; AND SUCH TIDELANDS AND CONTIGUOUS SUBMERGED
LANDS SUBJECT TO SUCH UNUSED PREFERENCE RIGHTS SHALL THEREAFTER BE
FREE AND CLEAR OF ALL CLAIMS TO PREFERENCE RIGHTS AND THE CITY SHALL HAVE
NO OBLIGATION TO CONVEY THE SAME TO ANY PERSON OR PERSONS WHOSOEVER,
AND SAID LAND SHALL THEN BE AND REMAIN THE PROPERTY OF THE CITY AND BE
SUBJECT TO SUCH DISPOSITION AS PROVIDED FOR BY LAW OR ORDINANCE.
11.15.290 FORMS.
THE CLERK SHALL CAUSE TO BE PRINTED APPLICATION FORMS AND OTHER FORMS
FOR USE IN PROCESSING THE SAME IN SUBSTANTIALLY THE FOLLOWING FORM:
(A)
APPLICATION FOR TIDELAND
PREFERENCE RIGHTS
NAME _______________________ APPLICATION NO. __________
HOME ADDRESS
POST OFFICE ADDRESS
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MARK X TO DESIGNATE NATURE OF PREFERENCE RIGHT CLAIMED:
CLASS I___________________________________
CLASS II___________________________________
CLASS III___________________________________
DOES THE TIDELAND PLAT 272 CORRECTLY SHOW THE LAND APPLIED
FOR:
YES ____ NO ____
IF TIDELAND PLAT DOES NOT CORRECTLY SHOW LAND APPLIED FOR,
DESCRIBE IT BY METES AND BOUNDS AND ATTACHED PLAT OF LAND
APPLIED FOR (USE ATTACHMENT IF MORE SPACE IS REQUIRED).
ALL CLAIMED IMPROVEMENTS WERE FIRST CONSTRUCTED AND USED (1)
BEFORE SEPTEMBER 7, 1957? (2) BEFORE SEPTEMBER 7, 1957 AND
JANUARY 3, 1969? (3) AFTER JANUARY 3, 1959?
IS ANY PART OF YOUR CLAIM BASED ON IMPROVEMENTS AND/OR FILL
CONSTRUCTED OR PLACED AFTER JANUARY 3, 1959?
YES ______,
NO ______. IF ANSWER IS “YES,” DESCRIBE AREA IMPROVED AFTER
JANUARY 3, 1959 (USE ATTACHMENT IF MORE SPACE IS NEEDED), AND
STATE NATURE OF IMPROVEMENTS.
HAVE ANY OF THESE IMPROVEMENTS BEEN EXTENDED OR IMPROVED
AFTER (1) SEPTEMBER 7, 1957? (2) JANUARY 3, 1959? DESCRIBE.
WAS THIS BENEFICIAL USE CONTINUED THROUGH JANUARY 3, 1959?
DESCRIBE.
THE PLAT IS BASED ON APPARENT USE AND IMPROVEMENTS EXISTING
ON JANUARY 3, 1959, RECOGNIZED BY THE ALASKA LAND ACT; STATE ANY
REASON KNOWN TO YOU WHY YOUR CLAIM DOES NOT CORRESPOND
WITH THE PLAT. (USE ATTACHMENT IF MORE SPACE IS REQUIRED.)
I OFFER CASH ____________, MONEY ORDER _____________, CASHIER’S
CHECK _____________, IN THE AMOUNT OF $ _____________AS DEPOSIT
FOR THE FOLLOWING COSTS:
USE BY CLERK
FILING FEE $__________ $__________
SURVEY COSTS (AT RATE OF
____/SQ. FT.)
$__________ $__________
APPRAISAL COSTS (CLASS II
APPLICATIONS)
$__________ $__________
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TRANSFER COSTS ($ ________) $__________ $__________
HEARING COSTS (IF CLAIM ADVERSE
TO PRIOR APPLICATION A DEPOSIT
OF $ __________ FOR HEARING AND
SERVICE NOTICE IS REQUIRED.)
$__________ $__________
TOTAL DEPOSIT (DOES NOT INCLUDE
PURCHASE PRICE OF LAND IN CLASS
II APPLICATIONS)
$__________ $__________
DEPOSIT RECEIVED BY CITY BY: ____________________________________
DATE OF APPLICATION: ____________________________________
DATE APPLICATION RECEIVED BY
CITY:
____________________________________
TIME FILED: ____________________________________
CERTIFICATION
I, ____________________ , THE ABOVE-NAMED APPLICANT, OR ITS AGENT,
HEREBY CERTIFIES THAT ALL OF THE STATEMENTS MADE IN THE
APPLICATION AND INCORPORATED ATTACHMENTS, IF ANY, ARE TRUE
AND CORRECT.
PRINT NAME(S)
SIGNATURE(S)
(B)
ASSESSOR’S APPRAISAL
THE UNDERSIGNED APPRAISER(S) DO HEREBY CERTIFY THAT HE HAS
DULY APPRAISED THE TIDE AND/OR SUBMERGED LAND DESCRIBED IN
THE ATTACHED APPLICATION NO. _____________ OF ____________,
WITHOUT INCLUDING IN THE HEREINAFTER STATED VALUE ANY VALUE
FOR VALUABLE IMPROVEMENTS CONSTRUCTED OR PLACED HEREON
PRIOR TO JANUARY 3, 1959, AT THE FAIR MARKET VALUE.
TIDELAND __________ SQ. FT. AT $ _____________ PER SQ. FT., $
____________.
DATED, AT KENAI, ALASKA, THIS __________ DAY OF ___________, 19 ____.
SIGNED:
(C)
WAIVER OF CLASS II PREFERENCE RIGHTS
(ATTACH TO EACH CLASS I APPLICATION)
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I, _______________, THE APPLICANT, OR HIS AUTHORIZED AGENT, IN THE
APPLICATION FOR TIDELAND PREFERENCE RIGHTS, APPLICATION NO.
_______________, TO WHICH THIS WAIVER IS ATTACHED, DO HEREBY
WAIVE ANY AND ALL PREFERENCE RIGHTS, TO ACQUIRE TIDE OR
SUBMERGED AND LYING SEAWARD OF THE CITY OF KENAI, TO WHICH I
AM NOW OR MAY HEREAFTER BECOME ENTITLED BY REASON OF THE
PROVISIONS OF PUBLIC LAW 85-303.
DATED, AT KENAI, ALASKA, THIS ___________ DAY OF _____________, 19
____.
(PRINT NAME)
(SIGNATURE)
(D)
CITY OF KENAI, ALASKA
TIDELAND QUIT-CLAIM DEED
THIS DEED, MADE IN DUPLICATE THIS __________ DAY OF ______________,
19 ____, BY AND BETWEEN THE CITY OF KENAI, ALASKA, GRANTOR, AND
________________, GRANTEE(S).
W I T N E S S E T H:
THAT THE SAID GRANTOR, FOR AND IN CONSIDERATION OF THE SUM OF
ONE AND NO 100/THS ($1.00) DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION, TO IT IN HAND PAID BY THE SAID GRANTEE(S),
PURSUANT TO THE PROVISIONS OF THE ALASKA LAND ACT (CHAPTER
169, SLA 1959) AND ORDINANCE NO. 455-78, ENACTED ON JANUARY 3,
1979, PURSUANT THERETO, DOES HEREBY CONVEYS, QUIT CLAIMS, AND
CONFIRMS UNTO SAID GRANTEE(S) AS TENANTS BY THE ENTIRETY, WITH
THE RIGHT OF SURVIVORSHIP (STRIKE IF GRANTEES ARE NOT HUSBAND
AND WIFE), AND TO HIS (THEIR) HEIRS AND ASSIGNS (STRIKE IF GRANTEE
A CORPORATION) AND TO ITS SUCCESSORS AND ASSIGNS (STRIKE IF
GRANTEE NOT A CORPORATION), ALL SUCH INTEREST AS THE GRANTOR
HAS, IF ANY, IN THE FOLLOWING DESCRIBED LOT, PIECE, PARCEL AND
TRACT OF TIDELAND AND CONTIGUOUS SUBMERGED LAND SITUATED
WITHIN THE CORPORATE LIMITS OF THE CITY OF KENAI, ALASKA, AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT:
ALL OF LOT ________, BLOCK __________, ACCORDING TO THE OFFICIAL
TIDELANDS SUBDIVISION PLAT OF THE CITY OF KENAI, ALASKA.
TOGETHER WITH ALL AND SINGULAR THE TENEMENTS, HEREDITAMENTS
AND APPURTENANCES THEREUNTO BELONGING OR IN ANYWISE
APPERTAINING.
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TO HAVE AND TO HOLD THE SAME UNTO THE SAID GRANTEE(S), HIS OR
THEIR HEIRS AND ASSIGNS, (OR) TO ITS SUCCESSORS AND ASSIGNS,
FOREVER.
IN WITNESS WHEREOF, THE GRANTOR HAS CAUSED THIS DEED TO BE
EXECUTED THE DAY AND YEAR HEREINABOVE FIRST WRITTEN.
CORPORATE SEAL CITY OF KENAI, ALASKA
_________________
BY: (ITS MANAGER)
ATTEST:
_________________
CLERK
]
Chapter 11.20
LEASING OF TIDELANDS
Sections:
[11.20.010 POLICY.]
11.20.020 Lands [A]Available for [L]Leasing.
[11.20.030 QUALIFICATIONS OF APPLICANTS.
11.20.040 CLASSIFICATION PRIOR TO LEASE REQUIRED.
11.20.050 APPLICATIONS.
11.20.060 RIGHTS PRIOR TO LEASING.
11.20.070 PROCEDURE.
11.20.080 PUBLIC NOTICE—PUBLIC HEARING.
11.20.090 SELECTION OF APPLICANT.
11.20.100 APPEAL.
11.20.110 APPRAISAL AND SURVEY OF LEASED LANDS.
11.20.120 THE LEASE DOCUMENT—TERMS.
11.20.130 APPRAISAL.
11.20.140 REVIEW.
11.20.150 ANNUAL MINIMUM RENTAL.
11.20.160 PRINCIPLES AND POLICY OF LEASE RATES.
11.20.170 RESPONSIBILITY TO PROPERLY LOCATE.
11.20.180 LEASE UTILIZATION.
11.20.190 SUBLEASING.
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11.20.200 ASSIGNMENTS.
11.20.210 MODIFICATION.
11.20.220 CANCELLATION—FORFEITURE.
11.20.230 DEFAULT—RIGHT OF ENTRY.
11.20.240 NOTICE OR DEMAND.
11.20.250 FINANCING—RIGHTS OF MORTGAGES OR LIENHOLDER.
11.20.260 ENTRY AND RE-ENTRY.
11.20.270 RE-LEASE.
11.20.280 FORFEITURE OF RENTAL.
11.20.290 RIGHT OF INSPECTION.
11.20.300 EASEMENT GRANTS RESERVED.
11.20.310 LEASE SUBORDINATE TO FINANCING REQUIREMENTS.
11.20.320 WRITTEN WAIVER.
11.20.330 SURRENDER ON TERMINATION.
11.20.340 SANITATION.
11.20.350 BUILDING AND ZONING CODES.
11.20.360 RULES.
11.20.370 AIRCRAFT OPERATIONS PROTECTED.
11.20.380 RIGHT TO ENJOYMENT AND PEACEABLE POSSESSION.
11.20.390 LESSEE TO PAY TAXES.
11.20.400 NO PARTNERSHIP OR JOINT VENTURE CREATED.
11.20.410 DEFAULT BANKRUPTCY.
11.20.420 NONDISCRIMINATION.
11.20.430 PARTIAL INVALIDITY.
11.20.440 PAROLE MODIFICATIONS.
11.20.450 AMENDMENT OF LEASE.
11.20.460 COMPLIANCE WITH LAWS.
11.20.470 CARE OF PREMISES.
11.20.480 LESSEE’S OBLIGATION TO REMOVE LIENS.
11.20.490 CONDEMNATION.
11.20.500 PROTECTION OF SUBTENANTS.
11.20.510 SUCCESSORS IN INTEREST.
11.20.520 GOVERNING LAW.
11.20.530 NOTICES.
11.20.540 FIRE PROTECTION.
11.20.550 INSPECTION.
11.20.560 PERSONAL USE OF MATERIALS.
11.20.570 RESTRICTIONS AND RESERVATIONS.
11.20.580 WASTE AND INJURY TO LAND.
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11.20.590 WARRANT Y.
11.20.600 APPROVAL OF OTHER AUTHORITIES.
11.20.610 TITLE RESTRICTIONS.
11.20.620 INSURANCE—HOLD HARMLESS.
11.20.630 INSURANCE OF USERS—SUBTENANTS.
11.20.640 ANNUAL REPORT.]
11.20.650 Tidelands [C]Claims.
11.20.660 Subjection to [H]Harbor [O]Ordinance.
[11.20.670 ARBITRATION.]
11.20.680 Provisions [R]Regulating [P]Public [U]se [P]Purpose.
11.20.690 Provision to be [I]Included in [P]Public [U]Use [L]Lease.
11.20.700 Public [U]Use: [D]Defined.
11.20.710 Controlled [A]Access.
11.20.720 Use [C]Charges.
[11.20.730 MAINTEN ANCE OF DOCK.
11.20.740 MODIFICATIONS OF EXISTING LEASES.
11.20.750 UNAUTHORIZED REMOVAL OF MATERIAL PROHIBITED.
11.20.760 REMOVAL NOT AUTHORIZED BY LEASE.
11.20.770 DISPOSITION OF RIGHTS BY COUNCIL.]
11.20.780 Penalties.
11.20.790 Tideland [L]Leases for [S]Shore [F]Fisheries.
[11.20.010 POLICY.
THE CITY, IN ORDER TO MAKE SITES AVAILABLE FOR BENEFICIAL INDUSTRIES, MAY
LEASE CITY-OWNED TIDELANDS TO PERSONS WHO AGREE TO OPERATE A BENEFICIAL
INDUSTRY UPON THE TERMS AND CONDITIONS THE COUNCIL CONSIDERS
ADVANTAGEOUS TO THE CITY.]
11.20.020 Lands [A]Available for [L]Leasing.
All classified tide and contiguous submerged land within the limits of the City to which the City
holds title may be leased [AS HEREINAFTER PROVIDED,] for surface use only, and under the
condition that said lease is subject and inferior to preference right claims [THAT MAY BE MADE
WITHIN A TWO (2) YEAR FILING PERIOD FOR PREFERENCE RIGHTS] and subject to the
rights of existing set net site holders within the City limits.
[11.20.030 QUALIFICATIONS OF APPLICANTS.
AN APPLICANT FOR A LEASE IS QUALIFIED IF THE APPLICANT:
(A) IS AN INDIVIDUAL AT LEAST NINETEEN (19) YEARS OF AGE OR OVER; OR
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(B) IS A GROUP, ASSOCIATION, OR CORPORATION WHICH IS AUTHORIZED TO
CONDUCT BUSINESS UNDER THE LAWS OF ALASKA.]
[11.20.040 CLASSIFICATION PRIOR TO LEASE REQUIRED.
BEFORE ACCEPTING APPLICATIONS TO LEASE TIDELANDS, THE AREA INVOLVED
SHALL HAVE FIRST BEEN CLASSIFIED FOR LEASING BY THE CITY COUNCIL WITH THE
APPROVAL OF THE PLANNING AND HARBOR COMMISSIONS, AND THEIR AVAILABILITY
ADVERTISED IN A NEWSPAPER OF GENERAL CIRCULATION IN THE AREA ONCE EACH
WEEK FOR TWO (2) SUCCESSIVE WEEKS NOT LESS THAN THIRTY (30) DAYS PRIOR TO
THE TIME SET FOR THE CLOSING OF THE ACCEPTANCE OF APPLICATIONS, AND THAT
ALL APPLICATIONS ARE AVAILABLE FOR PUBLIC INSPECTION AT THE CITY HALL
OFFICES.]
[11.20.050 APPLICATIONS.
(A) ALL APPLICATIONS FOR LEASE OF TIDELANDS SHALL BE FILED WITH THE
CLERK ON FORMS PROVIDED BY HIM OR HER AND AVAILABLE AT CITY HALL WHICH
SHALL UPON EXECUTION OF THE LEASE BECOME PART OF THE LEASE DOCUMENT.
ONLY FORMS COMPLETED IN FULL AND ACCOMPANIED BY A FILING FEE AS SET
FORTH IN THE CITY’S SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL WILL
BE ACCEPTED FOR FILING. FILING FEES ARE NOT REFUNDABLE.
(B) WITH EVERY APPLICATION, THE APPLICANT SHALL SUBMIT A DEVELOPMENT
PLAN SHOWING AND STATING:
(1) THE PURPOSE OF THE PROPOSED LEASE;
(2) THE USE, VALUE, AND NATURE OF IMPROVEMENTS TO BE CONSTRUCTED;
(3) THE TYPE OF CONSTRUCTION;
(4) DATES CONSTRUCTION IS ESTIMATED TO COMMENCE AND BE
COMPLETED;
(5) WHETHER INTENDED USE COMPLIES WITH THE ZONING ORDINANCE AND
COMPREHENSIVE PLAN OF THE CITY;
(6) DESCRIBE BY REFERENCE TO THE PLAT THE AREA TO BE LEASED;
(7) A DETAILED FINANCIAL PLAN SHOWING ABILITY TO CARRY THROUGH WITH
THE DEVELOPMENT PLAN;
(8) A PERFORMANCE BOND OF FIVE PERCENT (5%) OF THE PROJECT’S
ESTIMATED COST (WHICH BOND SHALL NOT EXCEED FIFTY THOUSAND
DOLLARS ($50,000.00)), PAYABLE TO THE CITY.
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11.20.060 RIGHTS PRIOR TO LEASING.
NEITHER THE FILING OF AN APPLICATION FOR A LEASE NOR THE HOLDING OF A PUBLIC
HEARING THEREON AS PROVIDED BELOW, SHALL GIVE THE APPLICANT A RIGHT TO A
LEASE OR TO THE USE OF THE LAND APPLIED FOR. ANY USE NOT AUTHORIZED BY A
LEASE SHALL CONSTITUTE A TRESPASS AGAINST THE CITY.
11.20.070 PROCEDURE.
(A) PLANNING AND ZONING COMMISSION. ALL LEASE APPLICATIONS SHALL BE
REVIEWED FIRST BY THE CITY OF KENAI PLANNING AND ZONING COMMISSION TO
DETERMINE WHETHER THE CONTEMPLATED USE FALLS WITHIN THAT PERMITTED
UNDER THE ZONING ORDINANCE.
(B) HARBOR COMMISSION. ALL LEASE APPLICATIONS SHALL BE REVIEWED BY THE
HARBOR COMMISSION. IF THE COMMISSION AFTER CONSIDERING THE LEASE
APPLICATIONS DETERMINES AT A PUBLIC HEARING AS SET FORTH IN THE SECTION
BELOW THAT ANY ONE LEASE WILL BE IN THE BEST INTERESTS OF THE CITY OF
KENAI, THE COMMISSION MAY MAKE A RECOMMENDATION TO THE CITY COUNCIL
OF APPLICANT ALONG WITH ANY MODIFICATIONS OR CONDITIONS RECOMMENDED
BY THE COMMISSION.
(C) CITY COUNCIL. THE CITY COUNCIL SHALL MAKE THE FINAL DETERMINATION
OF THE SELECTION OF THE APPLICANT BASED UPON THE COMMISSION’S
RECOMMENDATION AND APPROVE OR REJECT THE CHOICE OF APPLICATION
MADE.
11.20.080 PUBLIC NOTICE—PUBLIC HEARING.
NOTICE OF THE LEASE APPLICATION SHALL BE PUBLISHED IN A NEWSPAPER OF
GENERAL CIRCULATION WITHIN THE CITY NOT LESS THAN TEN (10) OR MORE THAN
THIRTY (30) DAYS PRIOR TO THE DATE OF PUBLIC HEARING. THE NOTICE MUST
CONTAIN THE NAME OF THE APPLICANT, A BRIEF DESCRIPTION OF THE LAND,
PROPOSED USE, TERM, AND A DECLARATION THAT THE COMMISSION WILL CONSIDER
THE LEASE TO THE APPLICANT ON THE BASIS OF THE APPLICANT’S AGREEMENT TO
OPERATE A BENEFICIAL INDUSTRY UPON THE TERMS AND CONDITIONS AS SET FORTH
IN ITS APPLICATION WHICH IS AVAILABLE FOR PUBLIC INSPECTION AT THE CITY HALL
OFFICES. THE NOTICE SHALL STATE THE DATE UPON WHICH PUBLIC HEARING WILL BE
HELD BEFORE THE COMMISSION FOR CONSIDERATION OF THE APPLICATION.
11.20.090 SELECTION OF APPLICANT.
AFTER THE HEARING PROVIDED IN KMC 11.20.080 ABOVE, THE COMMISSION MAY MAKE
ITS RECOMMENDATION OF THE APPLICANT TO THE CITY COUNCIL IF IN THE
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COMMISSION’S OPINION, ON THE BASIS OF ALL THE TESTIMONY PRESENTED, THE
AWARD OF THE PROSPECTIVE LEASE WILL BE ADVANTAGEOUS TO THE CITY AND IN
THE BEST INTERESTS OF THE PUBLIC WELFARE, HEALTH, AND SAFETY. IN THE
ALTERNATIVE, THE COMMISSION MAY ELECT TO MAKE NO RECOMMENDATION FOR
ANY APPLICANT GIVING ITS REASONS THEREFOR. THE COMMISSION MAY IMPOSE
ADDITIONAL CONDITIONS UPON THE APPLICANT BEFORE MAKING ITS AWARD. THE
DECISION OF THE COUNCIL SHALL BE POSTED ON THE CITY BULLETIN BOARD THE DAY
AFTER THE HEARING AND REMAIN POSTED FOR TEN (10) DAYS.
11.20.100 APPEAL.
ANY PERSON DISAGREEING WITH THE DECISION OF THE COUNCIL MAY APPEAL THE
DECISION BY FILING SUIT IN THE SUPERIOR COURT, THIRD JUDICIAL DISTRICT AT
KENAI, WITHIN TEN (10) DAYS FROM THE DATE OF THE POSTING OF COUNCIL’S
DECISION.
11.20.110 APPRAISAL AND SURVEY OF LEASED LANDS.
THE APPLICANT WILL FURNISH A SURVEY AND APPRAISAL OF THE LAND IN QUESTION
PRIOR TO LEASING. ANY RESURVEYING OR RE-PLATTING REQUIRED WILL BE THE
APPLICANT’S RESPONSIBILITY AND EXPENSE.
11.20.120 THE LEASE DOCUMENT—TERMS.
LEASES MAY BE ISSUED FOR A TERM OF NOT LESS THAN TWO (2) YEARS NOR MORE
THAN [NINETY-NINE (99)] FORTY-FIVE (45) YEARS. THE APPLICANT SHALL STATE IN HIS
OR HER APPLICATION THE TERM DESIRED. IN DETERMINING WHETHER TO GRANT A
LEASE FOR THE REQUESTED TERM, THE COUNCIL SHALL CONSIDER THE NATURE,
EXTENT, AND COST OF THE IMPROVEMENTS WHICH THE APPLICANT AGREES TO
CONSTRUCT THEREON AS A CONDITION OF THE LEASE THE TIME REQUIRED TO
AMORTIZE THE PROPOSED INVESTMENT, THE VALUE OF THE APPLICANT’S PROPOSED
USE TO THE ECONOMY OF THE CITY AND OTHER RELEVANT FACTORS. THE TERM OF
THE LEASE MAY BE EXTENDED FOR A NUMBER OF SUCCESSIVE PERIODS FOR A SET
NUMBER OF YEARS EACH AS LONG AS THE APPROPRIATE EXTENSIONS AND ORIGINAL
TERM DO NOT EXCEED 99 YEARS.
11.20.130 APPRAISAL.
NO LAND SHALL BE LEASED, OR A RENEWAL LEASE ISSUED, UNLESS THE SAME HAS
BEEN APPRAISED WITHIN A [SIX] TWELVE MONTH PERIOD PRIOR TO THE DATE FIXED
FOR BEGINNING OF THE TERM OF THE LEASE OR RENEWAL LEASE. NO LAND SHALL BE
LEASED FOR LESS THAN THE APPROVED, APPRAISED ANNUAL RENTAL, ACCORDING
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TO THE METHOD AS DESCRIBED IN SECTION 11.20.150 BELOW , EXCEPT TO STATE OR
FEDERAL AGENCIES OR THEIR SUBDIVISIONS IF IT IS IN THE PUBLIC INTEREST TO DO
SO. APPRAISALS SHALL REFLECT THE NUMBER AND VALUE OF CITY SERVICES
RENDERED THE LAND IN QUESTION.
11.20.140 REVIEW.
NO LEASED LAND MAY BE CHANGED IN USE, NOR MAY ANY RENEWAL LEASE BE ISSUED
UNTIL THE PROPOSED USE OR RENEWAL HAS BEEN REVIEWED BY THE PLANNING
COMMISSION AND APPROVED BY THE COUNCIL.
11.20.150 ANNUAL MINIMUM RENTAL.
(A) ANNUAL MINIMUM RENTALS SHALL BE COMPUTED FROM THE APPROVED
APPRAISED MARKET VALUE UTILIZING THE METHOD AS DESCRIBED IN KMC
11.20.160(A). ANNUAL MINIMUM RENTAL SHALL INCLUDE:
(1) TAXES PERTAINING TO THE LEASEHOLD INTEREST OF THE LESSEE.
(2) SALES TAX NOW ENFORCED OR LEVIED IN THE FUTURE COMPUTED UPON
RENT PAYABLE IN MONTHLY INSTALLMENTS WHETHER RENT IS PAID ON A
MONTHLY OR YEARLY BASIS.
(3) ALL TAXES AND ASSESSMENTS LEVIED IN THE FUTURE BY THE CITY OF
KENAI, AS IF LESSEE WAS CONSIDERED THE LEGAL OWNER OF RECORD OF
THE LEASED PROPERTY.
(4) INTEREST AT THE RATE OF EIGHT PERCENT (8%) PER ANNUM AND TEN
PERCENT (10%) PENALTIES OF ANY AMOUNT OF MONEY OWED UNDER THIS
LEASE WHICH IS NOT PAID ON OR BEFORE THE DATE IT BECOMES DUE.
(5) ALL SALES TAXES DUE ON PAYMENTS UNDER THIS LEASE AND TO ALL
SALES TAXES APPLICABLE TO ITS OPERATIONS.
(6) ALL SPECIAL ASSESSMENTS FOR PUBLIC IMPROVEMENTS LEVIED BY THE
CITY OF KENAI, AS IF LESSEE WERE CONSIDERED LEGAL OWNER OF LEASED
PROPERTY.
(B) UPON EXECUTION OF THE LEASE THE LANDS DEMISED BECOME TAXABLE TO
THE EXTENT OF ITS LEASEHOLD INTEREST AND LESSEE SHALL PAY ALL REAL
PROPERTY TAXES LEVIED UPON SUCH LEASEHOLD INTEREST IN THESE LANDS,
THAT THE CITY AS PART OF THE CONSIDERATION OF RENTAL PAYMENTS DEPENDS
AND RELIES UPON THE PAYMENT BY THE LESSEE OF SAID ASSESSMENTS AND
TAXES AS IF HE WERE THE OWNER OF SAID DEMISED LAND.
(C) RENT SHALL BE PAID ANNUALLY IN ADVANCE. SAID PAYMENTS SHALL BE
PRORATED TO CONFORM WITH THE CITY OF KENAI’S FISCAL YEAR BEGINNING
JULY 1 AND ENDING JUNE 30. IF THE EQUIVALENT MONTHLY PAYMENT EXCEEDS
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$200, THEN THE LESSEE SHALL HAVE THE OPTION OF MAKING PAYMENTS ON A
MONTHLY OR QUARTERLY BASIS.
11.20.160 PRINCIPLES AND POLICY OF LEASE RATES.
(A) TO INSURE A FAIR RETURN, ALL LEASES FOR A PERIOD IN EXCESS OF FIVE (5)
YEARS SHALL INCLUDE A REDETERMINATION CLAUSE AS OF THE FIFTH
ANNIVERSARY OF EACH LEASE, NORMALLY SET FOR THE FIRST OF JULY OF THAT
FIFTH YEAR. IN PURSUING A FAIR RETURN, ALL LANDS FOR LEASE SHALL BE
APPRAISED PRIOR TO LEASE AND AGAIN PRIOR TO REDETERMINATION.
THEREFORE, LEASE RATES SHALL BE BASED ON:
(1) FAIR MARKET VALUE OF THE LAND, INCLUDING AN APPROPRIATE
CONSIDERATION OF FACILITIES AND SERVICES AVAILABLE (PUBLIC WATER,
PUBLIC SEWER, STORM SEWERS, AND OTHER PUBLIC UTILITIES) AS
DETERMINED BY A QUALIFIED INDEPENDENT APPRAISER, CONSIDERING THE
BEST USE OF THE SPECIFIC LAND.
(2) THE ACTUAL RATE OF RETURN DETERMINED TO BE A FAIR RETURN TO THE
CITY SHALL BE SET AT SIX PERCENT (6%) OF FAIR MARKET VALUE. THE
APPRAISAL SHALL NOT INCLUDE STRUCTURAL IMPROVEMENTS MADE TO THE
LAND OR IMPROVEMENTS MADE BY WAY OF GRAVEL OR OTHER APPROVED
FILL PLACED ON THE LAND. (ORD. 1631-95)
(B) REALIZING THAT INVESTORS, DEVELOPERS, AND OTHER POTENTIAL LESSEES
NEED A REASONABLE ASSURANCE OF STABILITY IN FUTURE LEASE RATES, THE
REDETERMINATION CLAUSE OF ALL FUTURE LEASES SHALL INCLUDE THE
FOLLOWING LANGUAGE:
AT EACH FIVE-YEAR INTERVAL, THE FAIR MARKET VALUE SHALL BE
DETERMINED BY QUALIFIED, INDEPENDENT APPRAISERS. THE
REDETERMINED LEASE RATE (ANNUAL RENT) UNDER THIS PROVISION,
SHALL BE LIMITED TO A FIFTY PERCENT (50%) INCREASE IN THE PRIOR
LEASE RATE UNTIL THE THIRTIETH-YEAR ANNIVERSARY OF THE LEASE
AFTER WHICH THE FIFTY PERCENT (50%) CAP PROVISION SHALL NO
LONGER APPLY AND THE LEASE RATE SHALL BE REDETERMINED EVERY
FIVE YEARS ON THE BASIS OF FAIR MARKET EVALUATION AS DETERMINED
IN KMC 11.20.080.
(C) CITY LEASES OF TIDELANDS EXISTING AT THE TIME OF THE ENACTMENT OF
THIS CHAPTER SHALL HAVE A THIRTY-YEAR PERIOD DETERMINED FROM THE DATE
FROM WHICH THE LEASE WAS ORIGINALLY ENTERED INTO.
(D) FAILURE BY THE CITY TO INSIST UPON RENEGOTIATION AT THE END OF ANY
GIVEN FIVE-YEAR PERIOD SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OF
THE CITY TO INSIST UPON RENEGOTIATION IN ANY SUBSEQUENT YEAR, PROVIDED
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THAT NEITHER THE CITY NOR THE LESSEE SHALL HAVE THE RIGHT TO INSIST UPON
RENEGOTIATION UNTIL FIVE YEARS SHALL HAVE ELAPSED FROM THE DATE THE
RENTAL WAS LAST ADJUSTED.
11.20.170 RESPONSIBILITY TO PROPERLY LOCATE.
IT SHALL BE THE RESPONSIBILITY OF THE LESSEE TO PROPERLY LOCATE HIMSELF
AND HIS IMPROVEMENTS ON THE LEASED LAND. IT SHALL BE UNLAWFUL TO
ENCROACH ON OTHER LANDS OF THE CITY, OR ON LANDS OWNED OR LEASED BY
ANOTHER.
11.20.180 LEASE UTILIZATION.
LEASED LANDS SHALL BE UTILIZED FOR PURPOSES WITHIN THE SCOPE OF THE
APPLICATION, THE TERMS OF THE LEASE AND IN CONFORMITY WITH THE ORDINANCES
OF THE CITY AND BOROUGH, AND IN SUBSTANTIAL CONFORMITY WITH THE
COMPREHENSIVE PLAN. UTILIZATION OR DEVELOPMENT FOR OTHER THAN THE
ALLOWED USES SHALL CONSTITUTE A VIOLATION OF THE LEASE AND SUBJECT THE
LEASE TO CANCELLATION AT ANY TIME. FAILURE TO SUBSTANTIALLY COMPLETE THE
DEVELOPMENT PLAN OF THE LAND WITHIN THE SPECIFIED TIME FROM THE DATE OF
EXECUTION OF THE LEASE, CONSISTENT WITH THE PROPOSED USE AND TERMS OF
THE LEASE, SHALL CONSTITUTE GROUNDS FOR CANCELLATION. THE LEASE SHALL
SET FORTH IN DETAIL WITH APPROPRIATE PLANS AND SPECIFICATIONS THE
IMPROVEMENTS TO BE MADE WITHIN THE TIME PERIOD DESCRIBED ABOVE.
11.20.190 SUBLEASING.
LEASES MAY PROVIDE FOR SUBLEASING A PORTION OF THE LEASED LAND WITHOUT
PRIOR COUNCIL APPROVAL. SUBLEASES SHALL BE IN WRITING AND BE SUBJECT TO
THE TERMS AND CONDITIONS OF THE ORIGINAL LEASE. NO APPROVAL OF THE CITY
SHALL BE GIVEN TO THE SUBLEASE OF PROPERTY UNTIL THE LESSEE HAS
SUBSTANTIALLY COMPLIED WITH THE DEVELOPMENT PLAN.
11.20.200 ASSIGNMENTS.
EXCEPT FOR ASSIGNMENTS FOR COLLATERAL PURPOSES, NO LESSEE MAY ASSIGN
THE LANDS LEASED TO HIM WITHOUT PRIOR CO UNCIL APPROVAL. THE ASSIGNEE
SHALL BE SUBJECT TO ALL OF THE PROVISIONS OF THE LEASE. ANY ATTEMPTED
ASSIGNMENT MADE IN VIOLATION OF THIS SECTION SHALL BE VOID. ANY ASSIGNMENT
REQUIRING COUNCIL APPROVAL WILL NOT BE UNREASONABLY DENIED.
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11.20.210 MODIFICATION.
NO LEASE MAY BE MODIFIED ORALLY OR IN ANY MANNER OTHER THAN BY AN
AGREEMENT IN WRITING, SIGNED BY ALL PARTIES IN INTEREST OR THEIR
SUCCESSORS IN INTEREST. ANY SUCH MODIFICATION SHALL REQUIRE COUNCIL
APPROVAL.
11.20.220 CANCELLATION—FORFEITURE.
(A) LEASES IN GOOD STANDING MAY BE CANCELED IN WHOLE, OR IN PART, AT
ANY TIME UPON MUTUAL WRITTEN AGREEMENT BY LESSEE AND THE CITY
COUNCIL.
(B) ANY LEASE USED FOR AN UNLAWFUL PURPOSE MAY BE CANCELED.
(C) IF THE LESSEE SHALL DEFAULT IN THE PERFORMANCE OR OBSERVANCE OF
ANY OF THE LEASE TERMS, COVENANTS, OR STIPULATIONS THERETO, OR OF THE
REGULATIONS NOW OR HEREAFTER IN FORCE, AND SHOULD SAID DEFAULT
CONTINUE FOR THIRTY (30) CALENDAR DAYS AFTER SERVICE OF WRITTEN NOTICE
BY THE CITY WITHOUT REMEDY BY LESSEE OF THE CONDITIONS WARRANTING
DEFAULT, THE CITY SHALL SUBJECT LESSEE TO APPROPRIATE LEGAL ACTION,
INCLUDING, BUT NOT LIMITED TO, FORFEITURE OF THE LEASE. NO IMPROVEMENTS
MAY BE REMOVED BY LESSEE OR OTHER PERSON DURING ANY TIME THE LESSEE
IS IN DEFAULT. THIS PROVISION SHALL NOT BE CONSTRUED TO PROHIBIT THE CITY
FROM TAKING ANY APPROPRIATE LEGAL ACTION, INCLUDING, BUT LIMITED TO,
FORFEITURE OF THE LEASE, IMMEDIATELY UPON THE OCCURRENCE OF A
DEFAULT.
11.20.230 DEFAULT—RIGHT OF ENTRY.
SHOULD DEFAULT BE MADE IN THE PAYMENT OF ANY PORTION OF THE RENT OR FEES
WHEN DUE OR IN ANY OF THE COVENANTS OR CONDITIONS CONTAINED IN THE LEASE
OR IN ANY REGULATIONS NOW OR HEREINAFTER IN FORCE, THEN IN SUCH EVENT THE
CITY SHALL GIVE LESSEE THIRTY DAYS AFTER SUCH WRITTEN NOTICE TO CURE SUCH
DEFAULT OR DEFAULTS, AFTER WHICH IF THE DEFAULT IS NOT CURED, THE CITY MAY
TERMINATE THE LEASE, RE-ENTER AND TAKE POSSESSION OF THE PREMISES,
REMOVE ALL PERSONS THEREFROM.
11.20.240 NOTICE OR DEMAND.
ANY NOTICE OR DEMAND WHICH UNDER THE TERMS OF A LEASE OR UNDER ANY
STATUTE MUST BE GIVEN OR MADE BY THE PARTIES THERETO, SHALL BE IN WRITING
AND BE GIVEN OR MADE BY REGISTERED OR CERTIFIED MAIL, ADDRESSED TO THE
OTHER PARTY AT THE ADDRESS OF RECORD. HOWEVER, EITHER PARTY MAY
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DESIGNATE IN WRITING SUCH NEW OR OTHER ADDRESS TO WHICH SUCH NOTICE OR
DEMAND SHALL THEREAFTER BE SO GIVEN, MADE OR MAILED. A NOTICE GIVEN
HEREUNDER SHALL BE DEEMED DELIVERED WHEN DEPOSITED IN A U.S. GENERAL OR
BRANCH POST OFFICE, ENCLOSED IN A REGISTERED OR CERTIFIED MAIL ENVELOPE,
ADDRESSED AS HEREINABOVE PROVIDED.
11.20.250 FINANCING—RIGHTS OF MORTGAGES OR LIENHOLDER.
(A) FOR THE PURPOSE OF INTERIM OR PERMANENT FINANCING OR REFINANCING
FROM TIME TO TIME OF THE IMPROVEMENTS TO BE PLACED UPON THE LEASED
PREMISES, AND FOR NO OTHER PURPOSE, A LESSEE, AFTER GIVING W RITTEN
NOTICE THEREOF TO THE CITY, MAY ENCUMBER BY MORTGAGE, DEED OF TRUST,
ASSIGNMENT, OR OTHER APPROPRIATE INSTRUMENT, THE LESSEE’S INTEREST IN
THE LEASED PREMISES AND IN AND TO THE LEASE, PROVIDED SUCH
ENCUMBRANCE PERTAINS ONLY TO SUCH LEASEHOLD INTEREST AND DOES NOT
PERTAIN TO OR CREATE ANY INTEREST IN THE CITY’S TITLE TO THE LEASED
PREMISES. IF SUCH MORTGAGE, DEED OF TRUST, OR ASSIGNMENT, SHALL BE
HELD BY A BANK OR OTHER ESTABLISHED LENDING OR FINANCIAL INSTITUTION
(WHICH TERMS SHALL INCLUDE AN ESTABLISHED INSURANCE COMPANY AND
QUALIFIED PENSION OR PROFIT-SHARING TRUST), AND SUCH INSTITUTION SHALL
ACQUIRE THE LESSEE’S INTEREST IN SUCH LEASE AS A RESULT OF A SALE UNDER
SAID ENCUMBRANCE PURSUANT TO A FORECLOSURE OR OTHER REMEDY OF THE
SECURED PARTY, OR THROUGH ANY TRANSFER IN LIEU OF FORECLOSURE, OR
THROUGH SETTLEMENT OF OR ARISING OUT OF ANY PENDING OR CONTEMPLATED
FORECLOSURE ACTION, SUCH LENDING INSTITUTION SHALL HAVE THE PRIVILEGE
OF TRANSFERRING ITS INTEREST IN SUCH LEASE TO A NOMINEE OR A WHOLLY-
OWNED SUBSIDIARY CORPORATION WITH THE PRIOR CONSENT OF THE CITY,
PROVIDED, HOWEVER, SUCH TRANSFEREE SHALL ASSUME ALL OF THE
COVENANTS AND CONDITIONS REQUIRED TO BE PERFORMED BY THE LESSEE,
WHEREUPON SUCH LENDING INSTITUTION SHALL BE RELIEVED OF ANY FURTHER
LIABILITY UNDER SUCH LEASE FROM AND AFTER SUCH TRANSFER. SUCH LENDING
INSTITUTE FOR THE NOMINEE OR WHOLLY-OWNED SUBSIDIARY CORPORATION TO
WHICH IT MAY HAVE TRANSFERRED SUCH LEASE, OR ANY OTHER LENDING
INSTITUTION WHICH MAY AT ANY TIME ACQUIRE SUCH LEASE, SHALL BE RELIEVED
OF ANY FURTHER LIABILITY UNDER SUCH LEASE FROM AND AFTER A TRANSFER
OF SUCH LEASE.
(B) A LEASEHOLD MORTGAGEE, BENEFICIARY OF A DEED OF TRUST, OR
SECURITY ASSIGNEE, SHALL HAVE AND BE SUBROGATED TO ANY AND ALL RIGHTS
OF THE LESSEE WITH RESPECT TO THE CURING OF ANY DEFAULT HEREUNDER BY
LESSEE.
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(C) IF THE HOLDER OF ANY SUCH MORTGAGE, BENEFICIARY OF ANY SUCH DEED
OF TRUST, OR THE SECURITY ASSIGNEE SHALL GIVE THE CITY BEFORE ANY
DEFAULT SHALL HAVE OCCURRED IN THE LEASE, A WRITTEN NOTICE CONTAINING
THE NAME AND POST OFFICE ADDRESS OF SUCH HOLDER, THE CITY SHALL
THEREAFTER GIVE TO SUCH HOLDER A COPY OF EACH NOTICE OF DEFAULT BY
THE LESSEE AT THE SAME TIME AS ANY NOTICE OF DEFAULT SHALL BE GIVEN BY
THE CITY TO THE LESSEE, AND THE CITY WILL NOT THEREAFTER ACCEPT ANY
SURRENDER OR ENTER INTO ANY MODIFICATION OF THIS LEASE WITHOUT THE
PRIOR WRITTEN CONSENT OF THE HOLDER OF ANY FIRST MORTGAGE, BENEFICIAL
INTEREST UNDER A FIRST DEED OF TRUST, OR SECURITY ASSIGNEE, IN THIS
LEASE.
(D) IF, BY REASON OF ANY DEFAULT OF THE LESSEE, EITHER THIS LEASE OR ANY
EXTENSION THEREOF SHALL BE TERMINATED AT THE ELECTION OF THE CITY
PRIOR TO THE STATED EXPIRATION THEREFOR, THE CITY WILL ENTER INTO A NEW
LEASE WITH THE LEASEHOLD MORTGAGEE FOR THE REMAINDER OF THE TERM,
EFFECTIVE AS OF THE DATE OF SUCH TERMINATION, AT THE RENT AND
ADDITIONAL RENT, AND ON THE TERMS HEREIN CONTAINED, SUBJECT TO THE
FOLLOWING CONDITIONS:
(1) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE, SHALL MAKE
WRITTEN REQUEST TO THE CITY FOR SUCH NEW LEASE WITHIN TWENTY DAYS
AFTER THE DATE OF SUCH TERMINATION AND SUCH WRITTEN REQUEST SHALL
BE ACCOMPANIED BY A PAYMENT TO THE CITY OF ALL SUMS THEN DUE TO THE
CITY UNDER THE LEASE.
(2) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE, SHALL PAY
TO THE CITY, AT THE TIME OF THE EXECUTION AND DELIVERY OF SUCH NEW
LEASE, ANY AND ALL SUMS DUE THEREUNDER IN ADDITION TO THOSE WHICH
WOULD AT THE TIME OF THE EXECUTION AND DELIVERY THEREOF BE DUE
UNDER THIS LEASE; BUT FOR SUCH TERMINATION AND IN ADDITION THERETO,
ANY REASONABLE EXPENSES, INCLUDING LEGAL AND ATTORNEY’S FEES, TO
WHICH THE CITY SHALL HAVE BEEN SUBJECTED BY REASON OF SUCH
DEFAULT.
(3) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE SHALL, ON OR
BEFORE THE EXECUTION AND DELIVERY OF SUCH NEW LEASE, PERFORM ALL
THE OTHER CONDITIONS REQUIRED TO BE PERFORMED BY THE LESSEE TO
THE EXTENT THAT THE LESSEE SHALL HAVE FAILED TO PERFORM SUCH
CONDITIONS.
(E) IF A LENDING INSTITUTION OR ITS NOMINEE OR WHOLLY-OWNED SUBSIDIARY
CORPORATION SHALL HOLD A MORTGAGE, DEED OF TRUST, OR SIMILAR SECURITY
INTEREST IN AND TO THIS LEASE AND SHALL THEREAFTER ACQUIRE A LEASEHOLD
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ESTATE, DERIVED EITHER FROM SUCH INSTRUMENTS OR FROM THE CITY, AND IF
SUCH INSTITUTION, NOMINEE, OR CORPORATION SHALL DESIRE TO ASSIGN THIS
LEASE OR ANY NEW LEASE OBTAINED FROM THE CITY (OTHER THAN TO A
NOMINEE OR TO A WHOLLY-OWNED SUBSIDIARY CORPORATION AS PERMITTED BY
THE ABOVE PROVISIONS) TO AN ASSIGNEE WHO WILL UNDERTAKE TO PERFORM
AND OBSERVE THE CONDITIONS IN SUCH LEASE REQUIRED TO BE PERFORMED BY
THE LESSEE, THE CITY SHALL NOT UNREASONABLY WITHHOLD ITS CONSENT TO
SUCH ASSIGNMENT AND ASSUMPTION, AND ANY SUCH LENDING INSTITUTION,
NOMINEE, OR SUBSIDIARY SHALL BE RELIEVED OF ANY FURTHER LIABILITY UNDER
SUCH LEASE FROM AND AFTER SUCH ASSIGNMENT. IF THE PROPOSED ASSIGNOR
SHALL ASSERT THAT THE CITY IN UNREASONABLY WITHHOLDING ITS CONSENT TO
ANY SUCH PROPOSED ASSIGNMENT, SUCH DISPUTE SHALL BE RESOLVED BY
ARBITRATION.
11.20.260 ENTRY AND RE-ENTRY.
IN THE EVENT THAT THE LEASE SHOULD BE TERMINATED AS HEREINBEFORE
PROVIDED BY SUMMARY PROCEEDINGS OR OTHERWISE, OR IN THE EVENT THAT THE
DEMISED LANDS OR ANY PART THEREOF SHOULD BE ABANDONED BY THE LESSEE
DURING THE SAID TERM, THE LESSOR OR ITS AGENTS, SERVANTS, OR
REPRESENTATIVES MAY, IMMEDIATELY OR ANY TIME THEREAFTER, RE-ENTER AND
RESUME POSSESSION OF SAID LANDS OR SUCH PART THEREOF, AND REMOVE ALL
PERSONS AND PROPERTY THEREFROM, EITHER SUMMARY PROCEEDINGS OR BY A
SUITABLE ACTION OR PROCEEDING AT LAW WITHOUT BEING LIABLE FOR ANY
DAMAGES THEREFOR. NO RE-ENTRY BY THE LESSOR SHALL BE DEEMED AN
ACCEPTANCE OF A SURRENDER OF THE LEASE.
11.20.270 RE-LEASE.
IN THE EVEN THAT A LEASE SHOULD BE TERMINATED AS HEREIN PROVIDED, OR BY
SUMMARY PROCEEDINGS, OR OTHERWISE, THE PLANNING & ZONING COMMISSION
MAY OFFER SAID LANDS FOR LEASE OR OTHER APPROPRIATE DISPOSAL, PURSUANT
TO THE PROVISIONS OF THIS ORDINANCE.
11.20.280 FORFEITURE OF RENTAL.
IN THE EVENT THAT THE LEASE SHOULD BE TERMINATED BECAUSE OF ANY BREACH
BY THE LESSEE AS HEREIN PROVIDED, THE ANNUAL RENTAL PAYMENT LAST MADE BY
THE LESSEE SHALL BE FORFEITED AND RETAINED BY THE LESSOR AS PARTIAL OR
TOTAL LIQUIDATED DAMAGES FOR SAID BREACH.
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11.20.290 RIGHT OF INSPECTION.
CITY SHALL HAVE THE RIGHT AT ALL REASONABLE TIMES TO ENTER THE PREMISES,
OR ANY PART THEREOF, FOR THE PURPOSES OF INSPECTION.
11.20.300 EASEMENT GRANTS RESERVED.
CITY RESERVES THE RIGHT TO GRANT AND CONTROL EASEMENTS IN, OR ABOVE THE
LAND LEASED. NO SUCH GRANT OR EASEMENT W ILL BE MADE THAT WILL
UNREASONABLY INTERFERE WITH THE LESSEE’S USE OF THE LAND, AND LESSEE
SHALL HAVE FREE ACCESS AND USE OF ANY AND ALL PARKING AND LOADING RIGHTS,
RIGHTS OF INGRESS AND EGRESS NOW OR HEREAFTER APPERTAINING TO THE
LEASED PREMISES.
11.20.310 LEASE SUBORDINATE TO FINANCING REQUIREMENTS.
LESSEE AGREES THAT CITY MAY MODIFY THE LEASE TO MEET REVISED
REQUIREMENTS FOR FEDERAL OR STATE GRANTS, OR TO CONFORM TO THE
REQUIREMENTS OF ANY REVENUE BOND COVENANT. HOWEVER, THE MODIFICATION
SHALL NOT ACT TO REDUCE THE RIGHTS OR PRIVILEGES GRANTED THE LESSEE BY
THIS LEASE, NOR ACT TO CAUSE THE LESSEE FINANCIAL LOSS.
11.20.320 WRITTEN WAIVER.
THE RECEIPT OF RENT BY THE LESSOR WITH KNOWLEDGE OF ANY BREACH OF THE
LEASE BY THE LESSEE, OR ANY DEFAULT ON THE PART OF THE LESSEE IN
OBSERVANCE OR PERFORMANCE OF ANY OF THE CONDITIONS OR COVENANTS OF
THE LEASE, SHALL NOT BE DEEMED TO BE A W AIVER OF ANY PROVISIONS OF THE
LEASE. NO FAILURE ON THE PART OF THE LESSOR TO ENFORCE ANY COVENANT OR
PROVISION THEREIN CONTAINED, NOR ANY WAIVER OF ANY RIGHT THEREUNDER BY
THE LESSOR, UNLESS IN WRITING, SHALL DISCHARGE OR INVALIDATE SUCH
COVENANTS OR PROVISIONS, OR AFFECT THE RIGHT OF THE LESSOR TO ENFORCE
THE SAME IN THE EVENT OF ANY SUBSEQUENT BREACH OR DEFAULT. THE RECEIPT,
BY THE LESSOR, OF ANY RENT OR ANY OTHER SUM OF MONEY AFTER THE
TERMINATION, IN ANY MANNER, OF THE TERM THEREIN DEMISED, OR AFTER THE
GIVING BY THE LESSOR OF ANY NOTICE THEREUNDER TO EFFECT SUCH
TERMINATION, SHALL NOT REINSTATE, CONTINUE, OR EXTEND THE RESULTANT TERM
THEREIN DEMISED, DESTROY, OR IN ANY MANNER IMPAIR THE EFFICACY OF ANY SUCH
NOTICE OR TERMINATION AS MAY HAVE BEEN GIVEN THEREUNDER BY THE LESSOR
TO THE LESSEE PRIOR TO THE RECEIPT OF ANY SUCH SUM OF MONEY OR OTHER
CONSIDERATION, UNLESS SO AGREED TO IN WRITING AND SIGNED BY THE LESSOR.
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11.20.330 SURRENDER ON TERMINATION.
(A) LESSEE SHALL, ON THE LAST DAY OF THE TERM OF THIS LEASE OR UPON ANY
EARLIER TERMINATION OF THIS LEASE, SURRENDER AND DELIVER UP THE
PREMISES INTO THE POSSESSION AND USE OF CITY WITHOUT FRAUD OR DELAY
IN GOOD ORDER, CONDITION, AND REPAIR, EXCEPT FOR REASONABLE WEAR AND
TEAR SINCE THE LAST NECESSARY REPAIR, REPLACEMENT, RESTORATION, OR
RENEWAL, FREE AND CLEAR OF ALL LETTINGS AND OCCUPANCIES UNLESS
EXPRESSLY PERMITTED BY CITY IN WRITING, AND FREE AND CLEAR OF ALL LIENS
AND ENCUMBRANCES OTHER THAN THOSE CREATED BY CITY FOR LOANS TO THE
CITY.
(B) UPON THE END OF THE TERM OF THIS LEASE OR ANY EARLIER TERMINATION
THEREOF, TITLE TO THE BUILDINGS, IMPROVEMENTS, AND BUILDING EQUIPMENT
SHALL AUTOMATICALLY VEST IN THE CITY WITHOUT REQUIREMENT OF ANY DEED,
CONVEYANCE, OR BILL OF SALE DOCUMENT IN CONFIRMATION HEREOF, LESSEE
SHALL EXECUTE, ACKNOWLEDGE, AND DELIVER THE SAME AND SHALL PAY ANY
CHARGE, TAX, AND FEE ASSERTED OR IMPOSED BY ANY AND ALL GOVERNMENTAL
UNITS IN CONNECTION THEREWITH.
11.20.340 SANITATION.
THE LESSEE SHALL COMPLY WITH ALL REGULATIONS OR ORDINANCES OF THE CITY
WHICH ARE PROMULGATED FOR THE PROMOTION OF SANITATION. THE PREMISES OF
THE LEASE SHALL BE KEPT IN A NEAT, CLEAN, AND SANITARY CONDITION, AND EVERY
EFFORT SHALL BE MADE TO PREVENT THE POLLUTION OF WATER.
11.20.350 BUILDING AND ZONING CODES.
LEASED LANDS SHALL BE UTILIZED IN ACCORDANCE WITH THE BUILDING AND ZONING
ORDINANCES AND RULES AND REGULATIONS OF SAID AUTHORITY. FAILURE TO DO SO
SHALL CONSTITUTE A VIOLATION OF THE LEASE.
11.20.360 RULES.
(A) THE LESSEE SHALL OBSERVE, OBEY, AND COMPLY WITH ALL APPLICABLE
RULES, ETC., OF THE STATE OR FEDERAL GOVERNMENTS.
(B) CITY RESERVES THE RIGHT TO ADOPT, AMEND, AND ENFORCE REASONABLE
RULES AND REGULATIONS GOVERNING THE DEMISED PREMISES AND THE PUBLIC
AREAS AND FACILITIES USED IN CONNECTION THEREWITH. EXCEPT IN CASES OF
EMERGENCY, NO RULE OR REGULATION HEREAFTER ADOPTED OR AMENDED BY
THE CITY SHALL BECOME APPLICABLE UNLESS IT HAS BEEN GIVEN THIRTY DAYS
NOTICE OF ADOPTION OR AMENDMENT THEREOF.
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(C) LESSEE, IN THE CONDUCT OF ITS OPERATIONS ON THE DEMISED PREMISES,
SHALL OBSERVE, OBEY, AND COMPLY WITH ANY AND ALL APPLICABLE RULES,
REGULATIONS, LAWS, ORDINANCES, OR ORDERS OF ANY GOVERNMENTAL
AUTHORITY, FEDERAL OR STATE, LAWFULLY EXERCISING AUTHORITY OVER
LESSEE OR LESSEE’S CONDUCT OF ITS BUSINESS.
(D) CITY SHALL NOT BE LIABLE TO LESSEE FOR ANY DIMINUTION OR DEPRIVATION
OF POSSESSION, OR OF ITS RIGHTS HEREUNDER, ON ACCOUNT OF THE EXERCISE
OF ANY SUCH RIGHT OR AUTHORITY AS IN THIS SECTION PROVIDED, NOR SHALL
LESSEE BE ENTITLED TO TERMINATE THE WHOLE OR ANY PORTION OF THE
LEASEHOLD ESTATE HEREIN CREATED, BY REASON OF THE EXERCISE OF SUCH
RIGHTS OR AUTHORITY, UNLESS THE EXERCISE THEREOF SHALL SO INTERFERE
WITH LESSEE’S USE AND OCCUPANCY OF THE LEASEHOLD ESTATE AS TO
CONSTITUTE A TERMINATION IN WHOLE OR IN PART OF THIS LEASE BY OPERATION
OF LAW IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALASKA AND OF THE
UNITED STATES MADE APPLICABLE TO THE STATES.
11.20.370 AIRCRAFT OPERATIONS PROTECTED.
(A) THE CITY SHALL RESERVE TO ITSELF ITS SUCCESSORS AND ASSIGNS, FOR
THE USE AND BENEFIT OF THE PUBLIC, A RIGHT OF FLIGHT FOR THE PASSAGE OF
AIRCRAFT IN THE AIRSPACE ABOVE THE SURFACE AND ALL IMPROVEMENTS
APPROVED BY THE CITY OF THE PREMISES CONVEYED, TOGETHER WITH THE
RIGHT TO CAUSE IN SAID AIRSPACE SUCH NOISE AS MAY BE INHERENT IN THE
OPERATION OF AIRCRAFT, NOW OR HEREAFTER USED FOR NAVIGATION OF OR
FLIGHT IN THE AIR, USING SAID AIRSPACE OF LANDING AT, TAKING OFF FROM, OR
OPERATING ON THE KENAI AIRPORT. (WHEN PLANS FOR IMPROVEMENTS ARE
APPROVED BY THE CITY, THE CITY TO THE EXTENT OF THOSE IMPROVEMENTS
RELEASES THE EASEMENTS HERE EXPRESSED.)
(B) THE LESSEE BY ACCEPTING CONVEYANCE EXPRESSLY AGREES FOR ITSELF,
ITS REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, THAT IT WILL NOT ERECT
NOR PERMIT THE ERECTION OF ANY STRUCTURE OR OBJECT, ON THE AND
CONVEYED, WHICH WOULD BE AN AIRPORT OBSTRUCTION WITHIN THE
STANDARDS ESTABLISHED UNDER THE FEDERAL AVIATION ADMINISTRATION
REGULATIONS, PART 77, AS AMENDED. IN THE EVENT THE AFORESAID COVENANT
IS BREACHED, THE CITY RESERVES THE RIGHT TO ENTER ON THE LAND
CONVEYED HEREUNDER AND TO REMOVE THE OFFENDING STRUCTURE OR
OBJECT, ALL OF WHICH SHALL BE AT THE EXPENSE OF THE LESSEE OR ITS HEIRS,
SUCCESSORS, OR ASSIGNS.
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11.20.380 RIGHT TO ENJOYMENT AND PEACEABLE POSSESSION.
THE CITY SHALL AGREE AND COVENANT THAT THE LESSEE, UPON PAYING RENT AND
PERFORMING OTHER COVENANTS, TERMS, AND CONDITIONS OF THIS LEASE, SHALL
HAVE THE RIGHT TO QUIETLY AND PEACEFULLY HOLD, USE, OCCUPY, AND ENJOY THE
SAID LEASED PREMISES, EXCEPT THAT ANY INCONVENIENCE CAUSED BY PUBLIC
WORKS PROJECTS IN OR ABOUT THE LEASEHOLD PREMISES SHALL NOT BE
CONSTRUED AS A DENIAL OF THE RIGHT OF QUIET OR PEACEABLE POSSESSION.
11.20.390 LESSEE TO PAY TAXES.
LESSEE SHALL PAY ALL LAWFUL TAXES AND ASSESSMENTS WHICH, DURING THE TERM
THEREOF MAY BECOME A LIEN UPON OR WHICH MAY BE LEVIED BY THE STATE,
BOROUGH, CITY, OR ANY OTHER TAX-LEVYING BODY, UPON ANY TAXABLE
POSSESSORY RIGHT WHICH LESSEE MAY HAVE IN OR TO THE REASON OF ITS USE OR
OCCUPANCY, PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL
PREVENT LESSEE FROM CONTESTING AS ANY OTHER LAND OWNER ANY INCREASE IN
SUCH TAX OR ASSESSMENT THROUGH PROCEDURES OUTLINED IN STATE STATUTES.
11.20.400 NO PARTNERSHIP OR JOINT VENTURE CREATED.
THE CITY SHALL NOT BE CONSTRUED OR HELD TO BE A PARTNER OR JOINT VENTURER
OF LESSEE IN THE CONDUCT OF BUSINESS ON THE DEMISED PREMISES; AND IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT THE RELATIONSHIP BETWEEN THE
PARTIES THERETO IS, AND SHALL AT ALL TIMES REMAIN THAT OF LANDLORD AND
TENANT.
11.20.410 DEFAULT BANKRUPTCY.
IF THE LESSEE SHALL MAKE ANY ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR
SHALL BE ADJUDGED A BANKRUPT, OR IF A RECEIVER IS APPOINTED FOR THE LESSEE
OR LESSEE’S ASSETS, OR ANY INTEREST UNDER THIS LEASE, AND IF THE
APPOINTMENT OF THE RECEIVER IS NOT VACATED WITHIN THIRTY DAYS, OR IF A
VOLUNTARY PETITION IS FILED UNDER SECTION 18(A) OF THE BANKRUPTCY ACT BY
THE LESSEE, THEN AND IN ANY EVENT, THE CITY MAY, UPON GIVING THE LESSEE
THIRTY DAYS’ NOTICE, TERMINATE THIS LEASE.
11.20.420 NONDISCRIMINATION.
THE LESSEE, FOR HIMSELF, HIS HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
IN INTEREST, AND ASSIGNS, AS A PART OF THE CONSIDERATION HEREOF, DOES
HEREBY COVENANT AND AGREE AS A COVENANT RUNNING WITH THE LAND, THAT:
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(A) NO PERSON ON THE GROUNDS OF RACE, COLOR, OR NATIONAL ORIGIN SHALL
BE EXCLUDED FROM PARTICIPATION IN, DENIED THE BENEFITS OF, OR BE
OTHERWISE SUBJECTED TO DISCRIMINATION IN THE USE OF SAID FACILITIES.
(B) IN THE CONSTRUCTION OF ANY IMPROVEMENTS ON, OVER, OR UNDER SUCH
LAND AND THE FURNISHING OF SERVICES THEREON, NO PERSON ON THE
GROUNDS OF RACE, COLOR, OR NATIONAL ORIGIN SHALL BE EXCLUDED FROM
PARTICIPATION, DENIED THE BENEFITS OF, OR OTHERWISE BE SUBJECTED TO
DISCRIMINATION.
(C) THE LESSEE SHALL USE THE PREMISES IN COMPLIANCE WITH ALL OTHER
REQUIREMENTS IMPOSED BY OR PURSUANT TO TITLE 49, CODE OF FEDERAL
REGULATIONS, DEPARTMENT OF TRANSPORTATION, SUBTITLE A, OFFICE OF THE
SECRETARY, PART 21, NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS
OF THE DEPARTMENT OF TRANSPORTATION—EFFECTUATION OF TITLE VI OF THE
CIVIL RIGHTS ACT OF 1964, AND AS SAID REGULATIONS MAY BE AMENDED.
(D) IN THE EVENT FACILITIES ARE CONSTRUCTED, MAINTAINED, OR OTHERWISE
OPERATED ON THE SAID PROPERTY DESCRIBED IN THIS LEASE, FOR A PURPOSE
INVOLVING THE PROVISION OF SIMILAR SERVICES OR BENEFITS, THE LESSEE
SHALL MAINTAIN AND OPERATE SUCH FACILITIES AND SERVICES IN COMPLIANCE
WITH ALL OTHER REQUIREMENTS IMPOSED PURSUANT TO TITLE 49, CODE OF
FEDERAL REGULATIONS, DEPARTMENT OF TRANSPORTATION, SUBTITLE A,
OFFICE OF THE SECRETARY, PART 21, NONDISCRIMINATION IN FEDERALLY-
ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION—
EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, AND AS SAID
REGULATIONS MAY BE AMENDED.
11.20.430 PARTIAL INVALIDITY.
IF ANY TERM, PROVISION, CONDITION, OR PART OF THE LEASE IS DECLARED BY A
COURT OF COMPETENT JURISDICTION TO BE INVALID OR UNCONSTITUTIONAL, THE
REMAINING TERMS, PROVISIONS, CONDITIONS, OR PARTS SHALL CONTINUE IN FULL
FORCE AND EFFECT AS THOUGH SUCH DECLARATION WAS NOT MADE.
11.20.440 PAROLE MODIFICATIONS.
IT SHALL BE MUTUALLY UNDERSTOOD AND AGREED BETWEEN THE PARTIES THAT THE
AGREEMENT, AS WRITTEN, SHALL COVER ALL THE AGREEMENTS AND STIPULATIONS
BETWEEN THE PARTIES; AND NO REPRESENTATIONS, ORAL OR WRITTEN, HAVE BEEN
MODIFYING, ADDING TO, OR CHANGING THE TERMS THEREOF.
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11.20.450 AMENDMENT OF LEASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN ORDER TO AID THE LESSEE IN
THE FINANCING OF THE IMPROVEMENTS TO BE SITUATED HEREIN, THE CITY SHALL
AGREE THAT IN THE EVENT THE PROPOSED MORTGAGEE, BENEFICIARY OR SECURITY
ASSIGNEE UNDER ANY INTERIM OR PERMANENT LOAN ON THE SECURITY OF THE
LEASEHOLD INTEREST OF THE LESSEE AND THE IMPROVEMENTS TO BE SITUATED
THEREON SO REQUIRES, THE CITY WILL MAKE A REASONABLE EFFORT TO AMEND THIS
LEASE IN ORDER TO SATISFY SUCH REQUIREMENTS UPON THE EXPRESS CONDITION
AND UNDERSTANDING, HOWEVER, THAT SUCH VARIANCE IN LANGUAGE W ILL NOT
MATERIALLY PREJUDICE THE CITY’S RIGHTS THEREUNDER NOR BE SUCH AS TO ALTER
IN ANY WAY THE RENTAL OBLIGATIONS OF THE LESSEE HEREUNDER NOR ITS
OBLIGATIONS TO COMPLY WITH ALL EXISTING LAWS AND REGULATIONS OF THE CITY
RELATING TO THE LEASING OF AIRPORT LANDS, AND TO ALL APPLICABLE FEDERAL
STATUTES, RULES, AND REGULATIONS, AND ALL COVENANTS AND CONDITIONS OF
THE DEED BY WHICH THE CITY HOLDS TITLE TO THE LAND.
11.20.460 COMPLIANCE WITH LAWS.
(A) LESSEE SHALL COMPLY WITH ALL APPLICABLE LAWS, ORDINANCES, AND
REGULATIONS OF PUBLIC AUTHORITIES NOW OR HEREAFTER IN ANY MANNER
AFFECTING THE LEASED PREMISES OR THE SIDEWALKS, ALLEYS, STREETS, AND
WAY ADJACENT THERETO OR ANY BUILDINGS, STRUCTURES, FIXTURES, AND
IMPROVEMENTS OR THE USE THEREOF, WHETHER OR NOT ANY SUCH LAW S,
ORDINANCES, AND REGULATIONS WHICH MAY BE HEREAFTER ENACTED INVOLVE
A CHANGE OF POLICY ON THE PART OF THE GOVERNMENTAL BODY ENACTING THE
SAME. LESSEE AGREES TO HOLD CITY FINANCIALLY HARMLESS FROM THE
FOLLOWING:
(1) FROM THE CONSEQUENCES OF ANY VIOLATION OF SUCH LAWS,
ORDINANCES, AND/OR REGULATIONS.
(2) FROM ALL CLAIMS FOR DAMAGES ON ACCOUNT OF INJURIES, DEATH, OR
PROPERTY DAMAGE RESULTING FROM SUCH VIOLATION.
(B) LESSEE FURTHER AGREES IT WILL NOT PERMIT ANY UNLAWFUL OCCUPATION,
BUSINESS, OR TRADE TO BE CONDUCTED ON SAID PREMISES OR ANY USE TO BE
MADE THEREOF CONTRARY TO ANY LAW, ORDINANCE, OR REGULATION AS
AFORESAID WITH RESPECT THERETO.
11.20.470 CARE OF PREMISES.
LESSEE, AT ITS OWN COST AND EXPENSE, SHALL KEEP THE LEASED PREMISES, ALL
IMPROVEMENTS WHICH AT ANY TIME DURING THE TERM OF THIS LEASE MAY BE
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SITUATED THEREON, AND ANY AND ALL APPURTENANCES THEREUNTO BELONGING,
IN GOOD CONDITION AND REPAIR, DURING THE ENTRE TERM OF THIS LEASE.
11.20.480 LESSEE’S OBLIGATION TO REMOVE LIENS.
LESSEE WILL NOT PERMIT ANY LIENS INCLUDING, BUT NOT LIMITED TO, MECHANICS’,
LABORERS’, OR MATERIAL-MEN’S LIENS OBTAINABLE OR AVAILABLE UNDER THE THEN
EXISTING LAWS, TO STAND AGAINST THE LEASED PREMISES OR IMPROVEMENTS FOR
ANY LABOR OR MATERIAL FURNISHED TO LESSEE OR CLAIMED TO HAVE BEEN
FURNISHED TO LESSEE OR TO LESSEE’S AGENTS, CONTRACTORS, OR SUBLESSEES,
IN CONNECTION WITH W ORK OF ANY CHARACTER PERFORMED OR CLAIMED TO HAVE
BEEN PERFORMED ON SAID PREMISES OR IMPROVEMENTS BY OR AT THE DIRECTION
OR SUFFERANCE OF LESSEE, PROVIDED, HOWEVER, LESSEE SHALL HAVE THE RIGHT
TO PROVIDE A BOND AS CONTEMPLATED BY ALASKA LAW AND CONTEST THE VALIDITY
OR AMOUNT OF ANY SUCH LIEN OR CLAIMED LIEN. ON FINAL DETERMINATION OF SUCH
LIEN OR SUCH CLAIM FOR LIEN, LESSEE WILL IMMEDIATELY PAY ANY JUDGMENT
RENDERED WITH ALL PROPER COSTS AND CHARGES AND SHALL HAVE SUCH LIEN
RELEASED OR JUDGMENT SATISFIED AT LESSEE’S OWN EXPENSE.
11.20.490 CONDEMNATION.
IN THE EVENT THE LEASED PREMISES OR ANY PART THEREOF SHALL BE CONDEMNED
AND TAKEN FOR A PUBLIC OR A QUASI-PUBLIC USE, THEN UPON PAYMENT OF ANY
AWARD OR COMPENSATION ARISING FROM SUCH CONDEMNATION, THERE SHALL BE
SUCH DIVISION OF THE PROCEEDS, SUCH ABATEMENT IN RENT PAYABLE DURING THE
TERM OR ANY EXTENSION OF THE TERM HEREOF, AND SUCH OTHER ADJUSTMENTS
AS THE PARTIES MAY AGREE UPON AS BEING JUST AND EQUITABLE UNDER ALL THE
CIRCUMSTANCES. IF THE CITY AND LESSEE ARE UNABLE TO AGREE WITHIN THIRTY
DAYS AFTER SUCH AN AWARD HAS BEEN PAID INTO COURT, UPON WHAT DIVISION,
ANNUAL ABATEMENT IN RENT, AND OTHER ADJUSTMENTS ARE JUST AND EQUITABLE,
THE DISPUTE SHALL BE DETERMINED BY ARBITRATION PROVIDED IN KMC 11.20.670
HEREOF.
11.20.500 PROTECTION OF SUBTENANTS.
TO PROTECT THE POSITION OF ANY SUBTENANT(S) HEREAFTER PROPERLY
OBTAINING ANY INTERESTS IN THE LEASEHOLD ESTATE GRANTED LESSEE
HEREUNDER, THE CITY AGREES THAT IN THE EVENT OF THE CANCELLATION,
TERMINATION, EXPIRATION, OR SURRENDER OF THIS LEASE (THE GROUND LEASE),
THE CITY WILL ACCEPT THE SUBTENANT, ITS SUCCESSORS AND ASSIGNS, AS ITS
LESSEE FOR A PERIOD EQUAL TO THE FULL ELAPSED PORTION OF THE TERM OF THE
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SUBLEASE, INCLUDING ANY EXTENSIONS OR RENEWALS THEREOF NOT EXCEEDING
THE TERM OF THIS LEASE, UPON THE SAME COVENANTS AND CONDITIONS THEREIN
CONTAINED, TO THE EXTENT THAT SAID COVENANTS AND CONDITIONS ARE NOT
INCONSISTENT WITH ANY OF THE TERMS AND CONDITIONS OF THIS LEASE, PROVIDED
SUCH SUBTENANT SHALL MAKE FULL AND COMPLETE ATTORNMENT TO THE CITY FOR
THE BALANCE OF THE TERM OF SUCH SUBLEASE SO AS TO ESTABLISH DIRECT PRIVITY
OF ESTATE AND CONTRACT BETWEEN THE CITY AND THE SUBTENANT WITH THE SAME
FORCE AND EFFECT AS THOUGH SUCH SUBLEASE WAS ORIGINALLY MADE DIRECTLY
BETWEEN THE CITY AND SUCH SUBTENANT; AND FURTHER PROVIDED SUCH
SUBTENANT AGREES TO COMPLY WITH ALL THE PROVISIONS OF THE GROUND LEASE
AND ALL THE TERMS OF ANY MORTGAGE, DEED OF TRUST, OR SECURITY ASSIGNMENT
TO WHICH SUCH LEASEHOLD ESTATE IS SUBJECT, EXCEPT THE PAYMENT OF RENT
UNDER THE GROUND LEASE AND THE PAYMENT OF ANY DEBT SERVICE UNDER ANY
SUCH MORTGAGE, DEED OF TRUST, OR SECURITY ASSIGNMENT.
11.20.510 SUCCESSORS IN INTEREST.
THIS LEASE SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO, SUBJECT TO
SUCH SPECIFIC LIMITATIONS OR ASSIGNMENT AS ARE PROVIDED FOR HEREIN.
11.20.520 GOVERNING LAW.
THE INDENTURE OF LEASE SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF
THE STATE OF ALASKA.
11.20.530 NOTICES.
(A) ANY NOTICES REQUIRED BY THE LEASE SHALL BE IN WRITING AND SHALL BE
DEEMED TO BE DULY GIVEN ONLY IF DELIVERED PERSONALLY OR MAILED BY
CERTIFIED OR REGISTERED MAIL IN A PREPAID ENVELOPE ADDRESSED AS
FOLLOWS:
TO CITY:CITY HALL—CITY OF KENAI
[P.O. BOX 580] 210 FIDALGO AVENUE
KENAI, ALASKA 99611
TO TENANT:
(B) THE CITY SHALL ALSO MAIL A COPY OF ANY NOTICE GIVEN TO THE LESSEE,
BY REGISTERED OR CERTIFIED MAIL, TO ANY LEASEHOLD LENDER (MORTGAGEE,
BENEFICIARY OF A DEED OF TRUST, SECURITY ASSIGNEE) WHO SHALL HAVE
GIVEN THE CITY NOTICE OF SUCH MORTGAGE, DEED OF TRUST, OR SECURITY
ASSIGNMENT.
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(C) ANY SUCH ADDRESSES MAY BE CHANGED BY AN APPROPRIATE NOTICE IN
WRITING TO ALL OTHER PARTIES AFFECTED PROVIDED SUCH CHANGE OF
ADDRESS IS GIVEN TO THE OTHER PARTIES BY THE MEANS OUTLINED IN
PARAGRAPH (A) ABOVE AT LEAST FIFTEEN DAYS PRIOR TO THE GIVING OF THE
PARTICULAR NOTICE IN ISSUE.
11.20.540 FIRE PROTECTION.
THE LESSEE WILL TAKE ALL REASONABLE PRECAUTION TO PREVENT AND TAKE ALL
NECESSARY ACTION TO SUPPRESS DESTRUCTIVE OR UNCONTROLLED GRASS,
BRUSH, OR OTHER FIRES ON LEASED LANDS, AND COMPLY WITH ALL LAWS,
REGULATIONS, AND RULES PROMULGATED AND ENFORCED BY THE CITY FOR FIRE
PROTECTION WITHIN THE AREA WHEREIN THE LEASED PREMISES ARE LOCATED.
11.20.550 INSPECTION.
THE LESSEE SHALL ALLOW AUTHORIZED REPRESENTATIVES OF THE CITY TO ENTER
THE LEASED LAND FOR INSPECTION AT ANY REASONABLE TIME.
11.20.560 PERSONAL USE OF MATERIALS.
ALL COAL, OIL, GAS, AND OTHER MINERALS AND ALL DEPOSITS OF STONE OR GRAVEL
VALUABLE FOR EXTRACTION OR UTILIZATION AND ALL MATERIALS SUBJECT TO TITLE
II, DIVISION I, CHAPTERS 4, 5, AND 6 OF THE ALASKA ADMINISTRATIVE CODE ARE
EXCEPTED FROM THE OPERATION OF A SURFACE LEASE. SPECIFICALLY, THE LESSEE
OF THE SURFACE RIGHTS SHALL NOT SELL OR REMOVE FOR USE ELSEWHERE ANY
TIMBER, STONE, GRAVEL, PEAT MOSS, TOPSOIL, OR ANY OTHER MATERIAL VALUABLE
FOR BUILDING OR COMMERCIAL PURPOSES; PROVIDED, HOWEVER, THAT MATERIAL
REQUIRED FOR THE DEVELOPMENT OF THE LEASEHOLD MAY BE USED IF ITS USE IS
FIRST APPROVED BY THE CITY.
11.20.570 RESTRICTIONS AND RESERVATIONS.
THE LEASE SHALL CONTAIN SUCH RESTRICTIONS AND RESERVATIONS AS ARE
NECESSARY TO PROTECT THE PUBLIC INTEREST.
11.20.580 WASTE AND INJURY TO LAND.
IF ANY PERSON SHALL COMMIT WASTE, TRESPASS, OR OTHER INJURY UPON CITY
LAND, THE PERSON SO OFFENDING, IN ADDITION TO BEING CIVILLY LIABLE FOR ANY
DAMAGES CAUSED, SHALL BE DEEMED GUILTY OF A VIOLATION. (ORDS. 532, 1858-2000)
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11.20.590 WARRANTY.
THE CITY DOES NOT WARRANT BY ITS CLASSIFICATION OR LEASING OF LAND THAT
THE LAND IS IDEALLY SUITED FOR THE USE AUTHORIZED UNDER SAID CLASSIFICATION
OR LEASE, AND NO GUARANTY IS GIVEN OR IMPLIED THAT IT SHALL BE PROFITABLE
TO EMPLOY LAND TO SAID USE. CITY BEARS NO RESPONSIBILITY FOR ANY WATER
EROSION OF LAND.
11.20.600 APPROVAL OF OTHER AUTHORITIES.
THE ISSUANCE BY THE CITY OF LEASES DOES NOT RELIEVE THE GRANTEE OR LESSEE
OF RESPONSIBILITY OF OBTAINING LICENSES OR PERMITS AS MAY BE REQUIRED BY
DULY AUTHORIZED BOROUGH, STATE, OR FEDERAL AGENCIES.
11.20.610 TITLE RESTRICTIONS.
ALL LEASES OR SALES OF PROPERTY SHALL BE MADE SUBJECT TO RESTRICTIONS
AND RESERVATIONS IN THE PATENT, DEED, OR OTHER INSTRUMENT UNDER WHICH
THE CITY HOLDS.
11.20.620 INSURANCE—HOLD HARMLESS.
LESSEE SHALL COVENANT TO SAVE THE CITY HARMLESS FROM ALL ACTIONS, SUITS,
LIABILITIES, OR DAMAGES RESULTING FROM OR ARISING OUT OF ANY ACTS OF
COMMISSION OR OMISSION BY THE LESSEE, HIS AGENTS, EMPLOYEES, CUSTOMERS,
INVITEES, OR ARISING FROM OR OUT OF THE LESSEE’S OCCUPATION, OR USE OF THE
PREMISES DEMISED, OR PRIVILEGES GRANTED, AND TO PAY ALL COSTS CONNECTED
THEREWITH. IN THIS CONNECTION, THE LESSEE SHALL AGREE TO ARRANGE AND PAY
FOR ALL THE FOLLOWING:
(A) PUBLIC LIABILITY INSURANCE PROTECTING BOTH THE CITY AND/OR ITS
AGENTS AND THE LESSEE, SUCH INSURANCE TO BE EVIDENCED BY A CERTIFICATE
SHOWING THE INSURANCE IN FORCE. THE AMOUNT OF SUCH PUBLIC LIABILITY
INSURANCE SHALL HAVE LIMITS NOT LESS THAN THOSE KNOWN AS
$250,000/$500,000/$100,000.
(B) LIQUOR LIABILITY (WHERE APPLICABLE).
(C) LESSEE AGREES TO CARRY EMPLOYER’S LIABILITY INSURANCE AND
WORKMEN’S COMPENSATION INSURANCE, AND TO FURNISH A CERTIFICATE
THEREOF TO THE CITY, IF APPLICABLE.
(D) INSURANCE CONTRACTS PROVIDING LIABILITY INSURANCE AND WORKMEN’S
COMPENSATION SHALL PROVIDE FOR NOT LESS THAN THIRTY DAYS W RITTEN
NOTICE TO THE CITY OF CANCELLATION OR EXPIRATION OR SUBSTANTIAL
CHANGE IN POLICY CONDITIONS AND COVERAGE.
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(E) LESSEE AGREES THAT WAIVER OF SUBROGATION AGAINST THE CITY SHALL
BE REQUESTED OF LESSEE’S INSURER, AND SHALL BE PROVIDED AT NO COST TO
THE CITY.
(F) CROSS LIABILITY: IT IS UNDERSTOOD AND AGREED THAT THE INSURANCE
AFFORDED BY THIS POLICY OR POLICIES FOR MORE THAN ONE NAMED INSURED,
SHALL NOT OPERATE TO INCREASE THE LIMITS OF THE COMPANY’S LIABILITY, BUT
OTHERWISE SHALL NOT OPERATE TO LIMIT OR VOID THE COVERAGE OF ANY ONE
NAMED INSURED AS RESPECTS CLAIMS AGAINST THE SAME NAMED INSURED OR
EMPLOYEES OF SUCH OTHER NAMED INSURED.
(G) THE INSURANCE PROCURED BY THE LESSEE AS HEREIN REQUIRED SHALL BE
ISSUED IN THE NAME OF THE LESSEE AND THE CITY BY A COMPANY LICENSED TO
DO BUSINESS IN THE STATE OF ALASKA, AND SHALL CONTAIN ENDORSEMENTS
THAT:
(1) SUCH INSURANCE MAY NOT BE CANCELED OR AMENDED WITH RESPECT
TO THE CITY WITHOUT THIRTY DAYS WRITTEN NOTICE BY REGISTERED OR
CERTIFIED MAIL TO THE CITY BY THE INSURANCE COMPANY.
(2) LESSEE SHALL BE SOLELY RESPONSIBLE FOR PAYMENT OF PREMIUMS
AND THAT CITY SHALL NOT BE REQUIRED TO PAY ANY PREMIUMS FOR SUCH
INSURANCE.
(H) THE AMOUNT OF INSURANCE COVERAGE REQUIRED ABOVE MAY BE SUBJECT
TO REVIEW FOR INCREASE AT EACH FIVE-YEAR RENEGOTIATION OF THE LEASE.
(I) UPON REVIEW BY THE COMMISSION, THE LESSEE MAY BE REQUIRED TO
OBTAIN SUCH OTHER INSURANCE PROTECTING THE CITY AND LESSEE THAT MAY
BE NECESSARILY REQUIRED OR ADVISABLE OWING TO THE PARTICULARITIES OF
THE HARBOR-RELATED ACTIVITIES ON THE LEASE-HOLD INTEREST.
11.20.630 INSURANCE OF USERS—SUBTENANTS.
LESSEE, FOR ITS OWN PROTECTION, MAY REQUIRE BONA FIDE PUBLIC USERS AND
SUBTENANTS TO EXECUTE AGREEMENTS HOLDING LESSEE HARMLESS FROM
ACTIONS ARISING OUT OF USER’S OPERATIONS AND MAY REQUIRE SUCH BONA FIDE
PUBLIC USERS AND SUBTENANTS TO SHOW PROOF OF PUBLIC LIABILITY INSURANCE
COVERING THEIR OPERATIONS ON THE DEMISED PREMISES IN SUCH AMOUNTS AS
WILL ADEQUATELY PROTECT THEM.
11.20.640 ANNUAL REPORT.
THE LESSEE MAY BE REQUIRED TO SUBMIT TO THE CITY EACH YEAR ON OR ABOUT
MARCH 15, AN ANNUAL REPORT ON ITS OPERATIONS, PARTICULARLY THOSE
SERVICES AND FACILITIES OFFERED TO THE PUBLIC, WHETHER ON A FEE OR NON-FEE
BASIS].
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11.20.650 Tidelands [C]Claims.
The City shall lease the subject land subject to any preference rights claims made pursuant to the
provisions of Alaska State 38.05.[3]820 or Ordinance No. 455-78, dated September 5, 1979 of
the City of Kenai, adopted pursuant thereto, and the lessee holds lessor harmless for any
damages, legal expenses, or compensation necessitated by the resolution or satisfaction of said
claims, if any.
11.20.660 Subjection to [H]Harbor [O]Ordinance.
All leases are subject to the terms, conditions, and regulations imposed by Title II, Harbor and
Harbor Facilities, of the 1979 Kenai Code of ordinances as amended of which this section is part.
[11.20.670 ARBITRATION.
IN THE EVENT THE CITY AND LESSEE SHALL BE UNABLE TO AGREE AS TO ANY MATTER
PROVIDED FOR IN THE LEASE EXCEPT AS TO THE AMOUNT OF THE FIVE-YEAR RENT
REDETERMINATION AMOUNT WHICH IS HANDLED PURSUANT TO KMC 11.20.160, SUCH
DISPUTE SHALL BE DETERMINED BY THREE DISINTERESTED ARBITRATORS (UNLESS
THE PARTIES CAN AGREE ON ONE ARBITRATOR). SUCH ARBITRATION SHALL BE
CONDUCTED UPON REQUEST OF EITHER THE CITY OR THE LESSEE, BEFORE THREE
ARBITRATORS (UNLESS THE CITY OR THE LESSEE AGREE TO ONE ARBITRATOR)
DESIGNATED BY THE AMERICAN ARBITRATION ASSOCIATION AND IN ACCORDANCE
WITH THE RULES OF SUCH ASSOCIATION. THE ARBITRATORS DESIGNATED AND
ACTING UNDER THIS LEASE SHALL HAVE NO POWER TO DEPART FROM OR CHANGE
ANY OF THE PROVISIONS THEREOF. THE EXPENSE OF ARBITRATION PROCEEDINGS
CONDUCTED HEREUNDER SHALL BE BORNE EQUALLY BY THE PARTIES. THE
PROCEEDINGS SHALL TAKE PLACE IN KENAI, ALASKA UNLESS OTHERWISE AGREED
UPON BY THE PARTIES.]
11.20.680 Provisions [R]Regulating [P]Public [U]Use [P]Purpose.
The City Council realizes that only a limited area of tidelands bordering navigable waters are
available within the City of Kenai and which are owned by the City of Kenai. It would be in the
public interest to insure that these lands do not pass out of community control at least to the extent
that the public would not be deprived of harbor services at reasonable rates in the future.
Therefore, areas of City-owned tidelands which are developable for the bona fide public purposes
as enumerated below shall be leased only with the following covenants defined to insure public
use and access at reasonable rates.
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11.20.690 Provision to be [I]Included in [P]Public [U]Use [L]Lease.
The following provision shall be included in leases where harbor facilities are constructed to be
utilized all or in part for bona fide public uses.
11.20.700 Public [U]Use: [D]Defined.
(a) Public use shall mean a use limited in part or in whole to the following:
(1) In general, the lessee may use the demised premises or part thereof for any of the
following purposes only:
(i) Public dock facilities.
(ii) Maritime commerce.
(iii) Transportation.
(iv) Fishing.
(v) Boat harbor.
(vi) Port and waterfront development purposes.
(b) Before lessee may conduct any activities which fall under this general criteria, but are
not specifically mentioned above, lessee must obtain written consent of the City.
11.20.710 Controlled [A]Access.
Lessee, for its own protection, may construct or install fences, gates, or other types of barriers to
restrict access to portions of the demised premises that are not designated for a public use and may
provide reasonable controls for access to public use areas to allow for security for such areas while
insuring reasonable public access. Reasonable public access includes accommodations made for
fishing operations during fishing season. Any Controlled Access measures shall be indicated on the
Lessee’s Development Plan.
11.20.720 Use [C]Charges.
Lessee shall make reasonable and non-discriminatory charges to the public for use of any of its
facilities. [IT IS EXPRESSLY RECOGNIZED THAT LESSEE IS ENTITLED TO A MARGIN OF
PROFIT, WHICH SHOULD BE FAIR, REASONABLE, AND COMPETITIVE, AND THAT CITY
WILL COOPERATE TO THIS END IN CONSIDERING RATES AND FEES. THE COMMISSION
SHALL REVIEW ALL RATE STRUCTURES ANNUALLY. THE LEASE SHALL CONTAIN AN
ARBITRATION PROVISION AS SET FORTH IN KMC 11.20.670 TO RESOLVE DISPUTES
ARISING HEREUNDER.]
[11.20.730 MAINTENANCE OF DOCK.
LESSEE COVENANTS THAT IT WILL MAINTAIN THE DOCK FACILITY IN A SAFE CONDITION
AND IN ACCORDANCE WITH APPLICABLE STATE AND FEDERAL STANDARDS.]
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[11.20.740 MODIFICATIONS OF EXISTING LEASES.
LEASES SHALL ONLY BE MODIFIED TO THAT EXTENT DEEMED TO BE NECESSARY TO
PROTECT THE PUBLIC’S INTEREST.
11.20.750 UNAUTHORIZED REMOVAL OF MATERIAL PROHIBITED.
ANY PERSON, FIRM, OR CORPORATION WHO WITHOUT WRITTEN AUTHORITY FROM
THE CITY REMOVES ROCK, GRAVEL, OR OTHER MATERIAL FROM THE LANDS OWNED
BY THE CITY WITHOUT THE EXPRESS CONSENT OF THE CITY SHALL BE DEEMED
GUILTY OF A VIOLATION. ANY CRIMINAL ACTION TAKEN AGAINST SUCH PERSON SHALL
NOT PRECLUDE THE INSTITUTION OF CIVIL PROCEEDINGS BY THE CITY.
11.20.760 REMOVAL NOT AUTHORIZED BY LEASE.
NO DEED OR LEASE GRANTED BY THE CITY TO ANY PERSON SHALL CONTAIN TERMS
OR BE CONSTRUED AS GRANTING ANY RIGHT TO REMOVE MATERIAL FROM CITY
LANDS.]
[11.20.770 DISPOSITION OF RIGHTS BY COUNCIL.
IN RECOGNITION THAT CONDITIONS MAY EXIST FROM TIME TO TIME WHEREBY USE OF
SUCH LANDS AND THE MATERIAL COMPRISING THE SAME MAY BE BENEFICIAL TO THE
PUBLIC INTEREST AND PROMOTE THE PROGRESS AND DEVELOPMENT OF THE CITY,
APPLICATIONS FOR THE USE THEREOF MAY BE RECEIVED AND CONSIDERED BY THE
COMMISSION, PROVIDING SUCH APPLICATIONS FULLY DISCLOSE TO THE CITY ALL
MATERIAL FACTS AND PLANS FOR THE PROPOSED USE. SUCH APPLICATIONS SHALL
BE CONSISTENT WITH THE COMPREHENSIVE PLAN OF THE CITY AND REFERRED TO
THE CITY PLANNING COMMISSION FOR ITS RECOMMENDATIONS. DISPOSITION OF
SUCH APPLICATIONS SHALL BE MADE BY THE COUNCIL AFTER RECOMMENDATION
FROM THE COMMISSION.]
11.20.780 Penalties.
(a) It is unlawful for any person to violate any of the provisions of this chapter and upon
conviction thereof shall be fined as provided for violations in KMC 13.05.010. Each day such
violation is committed or permitted to continue shall constitute a separate offense and shall
be punishable as such hereunder.
(b) In addition to or as an alternative to the above penalty provision, the City may impose a
civil penalty in an amount as provided by KMC 13.05.010 per day for the violation of any
provision of this chapter and seek injunctive relief for any infraction thereof for which the
offending party will be charged for reasonable attorney’s fees and costs incurred by the City
as awarded by the court.
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(c) Nothing in this section shall be deemed to restrict the City’s exercise of any of its rights
pursuant to the lease agreement including those enumerated in KMC 11.20.220 and KMC
11.20.240 hereof.
11.20.790 Tideland [L]Leases for [S]Shore [F]Fisheries.
(a) Notwithstanding other provisions of the City’s Code of Ordinances [T]the annual
minimum rental rate for tideland leases used primarily for shore fisheries shall be an annual
fee as set forth in the City’s schedule of fees adopted by the City Council. However, should
the State of Alaska set an annual lease rate higher than that established by the City for similar
tideland leases for shore fisheries on land owned by the State, the City may amend the annual
rental to a rate equal to that charged by the State of Alaska. [ANY MONEY OWED
PURSUANT TO KMC 11.20.150 ] SHALL BE IN ADDITION TO THE ANNUAL MINIMUM
SET FORTH ABOVE.
(B) NEITHER KMC 11.20.160 NOR KMC 11.20.620(A) SHALL APPLY TO TIDELAND
LEASES FOR SHORE FISHERIES.
(C) THE PROVISIONS OF KMC 11.20.110 AND KMC 11.20.130 REQUIRING
APPRAISALS OF TIDELAND PROPERTY SHALL NOT APPLY TO LEASES OF
TIDELANDS FOR SHORE FISHERIES. HOWEVER, THE SURVEY PROVISIONS OF KMC
11.20.110 ARE APPLICABLE TO SHORE FISHERY LEASES.]
Section 2. Severability: That if any part or provision of this ordinance or application thereof to
any person or circumstances is adjudged invalid by any court of competent jurisdiction, such
judgment shall be confined in its operation to the part, provision, or application directly involved
in all controversy in which this judgment shall have been rendered, and shall not affect or impair
the validity of the remainder of this title or application thereof to other persons or circumstances.
The City Council hereby declares that it would have enacted the remainder of this ordinance even
without such part, provision, or application.
Section 3. Effective Date: That pursuant to KMC 1.15.070(f), this ordinance shall take effect
30 days after enactment.
ENACTED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this * day of *, 2020.
BRIAN GABRIEL SR., MAYOR
ATTEST:
___________________________________
Jamie Heinz, CMC, City Clerk
Introduced: February 19, 2020
Enacted: *, 2020
Effective: *, 2020
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MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
FROM: Council Members Jim Glendening and Robert Peterkin
DATE: February 10, 2020
SUBJECT: Ordinance No. 3106-2020 – Amending Title 11 – Harbor and Harbor
Facilities
The Harbor Commission, and a subcommittee, has been reviewing Title 11 of the Kenai Municipal
Code to recommend changes that more appropriately reflect the Harbor Commissions current
functions, relationship with other commissions, and desires moving forward. This process is
especially relevant now, with the enactment of Ordinance No. 3072-2019 (Substitute) which
repealed and re-enacted the City’s approach to the managing City lands. Part of this approach
was to bring certain harbor lands, along with airport lands outside the airport reserve into the
City’s general fund land sales and leasing process to establish a consistent Citywide approach.
Additionally relevant to revisions of Title 11, many procedures and processes described in the
Title are no longer applicable because they address the transfer of certain tidelands from the
State of Alaska to the City on January 6, 1977 and the adjudication of preference rights or
commercial fishermen, much of which had to be accomplished by October 6, 1981.
It appears that when the Harbor Code was originally enacted, the City had a vision for a harbor
that did not come to fruition. Further, many current code provisions address specific conveyance
restrictions on specific parcels of land that do not broadly apply to all harbor lands. These specific
restrictions are carried forward in the City’s land management plan and do not need to remain
codified. Rather than retain old code provisions that are no longer applicable or applied, we
recommend removing the old language and addressing changes or new plans for the harbor on
a go forward basis. The proposed changes will not limit the City’s ability to move forward with any
new plans or projects, however new code provisions may be appropriate to address any
significant changes in harbor usage.
The Harbor Commission and a subcommittee formed especially to review Title 11 have put
considerable time and effort into revising the code and strategizing a path forward so the
Commission can be of greatest service to the City. The code revisions in this Ordinance
incorporate the recommended revisions from the Harbor Commission and its subcommittee,
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Ordinance No. 3106-2020
along with other proposed changes based on the enactment of Ordinance No. 3072-2019
(Substitute) and continued relevance of other sections of code recommended by the City Attorney.
We ask that this Ordinance be referred to the Harbor Commission upon introduction. Your
consideration is appreciated.
Page 66 of 136
MEMORANDUM
TO: Mayor Brian Gabriel and Kenai City Council
FROM: Scott Bloom, City Attorney
DATE: February 10, 2020
SUBJECT: Ordinance No. 3106-2020 – Amending Title 11 – Harbor and Harbor
Facilities
Below is a sectional analysis of the code changes recommended in Ordinance 3106-
2020. Comments are provided in red. In general, many of the provisions are
recommended to be deleted for three main reasons: 1) because they address specific
tasks that were temporal in nature and were completed over three decades ago; 2) they
provide a process for leasing lands that are already described in Chapter 22.05-
Disposition of City Lands; or 3) they contain lease provisions that are now contained in
the City’s standard lease form approved by Council. With regard to the first reason, I don’t
think the City’s municipal code should contain provisions that are only relevant for a
relatively short periods of time. Removing these items will reduce clutter within the code,
improve readability and clarity. A record will be kept and is available should any of these
removed issues become relevant again. As to the second reason, the City Council
recently approved significant amendments to the City’s Lands Code, including its leasing
provisions which now apply to harbor lands. The lease provisions in Title 11 should be
removed as they are inconsistent with Chapter 22 and recent practices of the City. Finally,
as to the third reason, maintaining fairly specific contract language in code, in this case
specific lease provisions, makes the City inflexible as a business partner and makes it
difficult to address unique situations in a timely and efficient manner. I support the removal
of these provisions from Title 11.
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Ordinance No. 3106-2020
Title 11
HARBOR AND HARBOR FACILITIES
Chapters:
11.05 Harbor Master
11.10 Harbor Commission
11.15 Tidelands
11.20 Leasing of Tidelands
Chapter 11.05
HARBOR MASTER
Sections:
11.05.010 Harbor Master.
11.05.020 Harbor [D]Defined.
11.05.030 Harbor [R]Regulations.
[11.05.040 PERMIT FOR TERMINAL OR TRANSPORTATION FACILITIES.
11.05.050 CONDITION AS TO EQUAL SERVICES AND RATES.
11.05.060 INVESTIGATION OF HOLDER—CANCELLATION.
11.05.070 FACILITY RATES AND CHARGES.]
11.05.080 Leasing [N]Not [P]Prohibited.
11.05.090 Use of [L]Launch [R]Ramp and [F]Float.
11.05.100 No [W]Wake [Z]Zones.
11.05.010 Harbor Master.
The Harbor Master, shall be the Public Works Director. The Harbor Master shall be the chief
administrator of the harbor and its facilities. He or she shall have all powers and duties prescribed
by ordinance and the regulations and rates prescribed by the City Manager. In addition, insofar
as it is appropriate, shall have all powers and duties and rates prescribed by the City Manager,
subject to approval by the Council; and, in addition, insofar as it is appropriate, shall have all
powers and duties imposed upon harbor masters, port directors, and administrative heads of
harbors and ports by Federal or State law. No Changes
11.05.020 Harbor [D]Defined. (House Keeping)
The harbor shall embrace all that portion of the Kenai River located within the City of Kenai,
including all tide and submerged lands, whether filled or unfilled, situated below the line of mean
high tide, as may be leased from the State of Alaska.
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11.05.030 Harbor [R]Regulations. (House Keeping)
The City Manager is hereby empowered, subject to change by the Council, to make such rules
and regulations required for the operation of the harbor, not in conflict with the provisions of this
Code, and to establish the fees, rates, and charges for the billing and collections for the support
of the harbor, and no person shall fail to comply with any such rule or regulation.
[11.05.040 PERMIT FOR TERMINAL OR TRANSPORTATION FACILITIES.
(A) ALL LESSEES, OWNERS, OR OCCUPANTS OF PROPERTY WITHIN THE HARBOR OR
CONTIGUOUS TO IT WHO WISH TO CONSTRUCT OR OPERATE TERMINAL OR
TRANSPORTATION FACILITIES OF ANY KIND THEREIN, INCLUDING, BUT NOT LIMITED
TO, DOCKS AND WAREHOUSES, SHALL APPLY TO THE LANDSCAPING/SITE PLAN
REVIEW BOARD FOR A PERMIT]. APPLICATION THEREFOR SHALL BE MADE IN
ACCORDANCE WITH REGULATIONS DESCRIBED IN KMC 14.25, ENTITLED
“LANDSCAPING/SITE PLAN REGULATIONS,” AND SHALL BE ACCOMPANIED BY A PLAN
OF THE PROPOSED CONSTRUCTION, WHICH SHALL MEET ALL STANDARDS AND
REQUIREMENTS WHICH MAY BE SET FORTH BY THE COUNCIL.
(B) THE APPLICANT SHALL REFER ALL PLANS OF THE TYPE OR LOCATION OF ANY
PROPOSED CONSTRUCTION WHICH ARE OR MAY BE IN CONFLICT WITH THE GENERAL
CITY PLAN TO THE HARBOR COMMISSION AND THE LANDSCAPING/SITE PLAN REVIEW
BOARD TO DETERMINE WHETHER SUCH PROPOSED CONSTRUCTION IS IN KEEPING
WITH THE OBJECTIVES OF THE GENERAL PLAN. THE DECISION OF THE
LANDSCAPING/SITE PLAN REVIEW BOARD SHALL BE BINDING UNLESS APPEALED BY
COUNCIL. THE BUILDING OFFICIAL MAY ISSUE PERMITS UPON SUCH TERMS AND
CONDITIONS AND FOR SUCH DURATION AS IT MAY DEEM PROPER, AND NO
CONSTRUCTION MAY BEGIN OR OPERATION CARRIED ON WITHOUT A PERMIT FROM
THE BUILDING OFFICIAL.] This section last amended in 1990 is no longer current with the
applicable procedures for landscape site plan review. There is no landscape site plan review
board, nor is there a general plan for the City. We do however have a comprehensive plan. All
qualifying improvements within the City are required to go through an applicable administrative
site plan review process and building permit process pursuant to provision in the Planning and
Zoning code. Removing this section in Title will not affect those requirements.
[11.05.050 CONDITION AS TO EQUAL SERVICES AND RATES.
IT SHALL BE A CONDITION OF ALL PERMITS GRANTED BY THE CITY COUNCIL THAT THE
FACILITIES TO BE CON-STRUCTED AND THE SERVICES TO BE SUPPLIED IN
CONNECTION WITH THEM SHALL BE MADE AVAILABLE TO ALL CARRIERS UPON EQUAL
TERMS, AT EQUAL RATES, AND WITHOUT DISCRIMINATION OF ANY KIND.] The City
Council no longer grants permits of this nature, I am unable to confirm if they ever have. The City
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can restrict property use and services provided through any deed or grant restrictions if applicable
through lease requirements, grant requirements, or permits, such as ‘special use’ permits. I am
uncertain of other regulatory authority imposed by the City in this regard. Through the City’s
administrative process and the land management plan, any conditions necessary to be imposed
on a property or activities on such property based on third party regulatory authority or title
restrictions should be carried forward.
[11.05.060 INVESTIGATION OF HOLDER—CANCELLATION.
THE CITY COUNCIL MAY INQUIRE INTO THE MANNER IN WHICH OBLIGATIONS UNDER
THE PERMITS ISSUED BY IT ARE CARRIED OUT, AND INTO THE RATE SCHEDULES AND
PRACTICES OF THE PERMIT HOLDERS FOR PURPOSES OF DETERMINING WHETHER
THE PROVISIONS OF THE PERMITS ARE BEING COMPLIED WITH. IT SHALL HAVE
ACCESS TO BOOKS AND RECORDS AND TO TERMINAL AND TRANSPORTATION
FACILITIES AS MAY BE REASONABLY NECESSARY TO ENABLE IT TO MAKE SUCH A
DETERMINATION. SHOULD THE COUNCIL AT ANY TIME FIND THE PERMIT HOLDER IS
NOT COMPLYING WITH THE TERMS OF HIS OR HER PERMIT, IT MAY CANCEL THE
PERMIT UPON SUCH NOTICE AND IN ACCORDANCE WITH SUCH PROCEDURE AS IT MAY,
BY REGULATION, PRESCRIBE.] Similar to the proceeding section, the City Council does not
issue permits in this regard, nor have regulations been enacted to provide for these activities.
[11.05.070 FACILITY RATES AND CHARGES.
THE CITY SHALL FIX THE RATES AND CHARGES FOR THE USE OF ANY AND ALL
TERMINAL OR TRANSPORTATION FACILITIES CONSTRUCTED ON PROPERTY UNDER
ITS JURISDICTION, INCLUDING CHARGES ASSESSED AGAINST VESSELS, THEIR
OWNERS, AGENTS OR OPERATORS WHICH LOAD OR DISCHARGE CARGO AT ANY OF
THE TERMINALS WITHIN THE HARBOR AREA; CHARGES FOR BERTHAGE WHILE
LOADING OR DISCHARGING CARGO; CHARGES FOR ADMINISTRATIVE EXPENSES IN
SERVING THE CARRIER’S CHARGES FOR FREIGHT HANDLING, LOADING, UNLOADING
AND WHARF DEMURRAGE RATES. SUCH RATES AND CHARGES SHALL BE JUST AND
REASONABLE. THE RATES AND CHARGES SHALL BE AS SET FORTH IN THE CITY’S
SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL.] The City does not fix these rates
and has not regulated the contemplated industries in such a manner. The City only regulates the
rates for use of its own dock facility.
11.05.080 Leasing [N]Not [P]Prohibited. (House Keeping)
Nothing in this chapter or in this code of ordinances shall prohibit the City Council from leasing
the docks, dock sites, and other harbor facilities to private persons, firms, and corporations. While
this language is arguably not necessary, it is not harmful and I recommend it be kept.
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11.05.090 Use of [L]Launch [R]Ramp and [F]Float. (House Keeping)
(a) The City of Kenai launching facility shall be open to the public upon reasonable terms
and conditions as provided by regulation.
(b) Failure to pay a boat launch fee for the City of Kenai launching facility set forth according
to KMC 11.05 within one (1) hour of the retrieval of the boat or vessel from the water shall be
a violation punishable by a fine of fifty dollars ($50.00).
(c) It is unlawful to block access to either of the launch ramp or float facilities. “Blocking
access” means leaving a boat, trailer, or vehicle upon the launch ramp or float in such a
position as to prevent the launching or retrieval of boats.
(d) Person blocking access to the ramp or float facilities shall be subject to a civil penalty as
provided in KMC 13.05.010(b).
(e) Each one (1) hour period for which the ramp or float is blocked shall be considered a
separate offense for the purposes of civil penalties. I recommend this section be left in for
now, however the Harbor Commission may want to address these provisions moving forward.
For example, I would recommend imposing a fine for blocking the ramp that can be imposed
as a minor offense as opposed to a civil penalty, which is much more difficult and costly to
enforce administratively.
11.05.100 No [W]Wake [Z]Zones. (House Keeping)
(a) The City Manager, subject to change by the Council, is authorized to establish no wake
zones within the Kenai Harbor outside of the Kenai River Special Management Area as
needed to protect public and private property, and/or public safety.
(b) No wake zones may be established on a temporary or permanent basis.
(c) A “no wake zone” is defined as a zone where no person may operate a boat at a speed
greater than five (5) miles per hour.
(d) Established no wake zones shall be marked with appropriate signage in a manner to
provide reasonable public notice.
(e) A violation of this section shall be punishable as provided in KMC 13.05.010.
I recommend this section be left in as is. This may be an area the Harbor Commission wants
to revisit moving forward to ensure it is adequately addressing concerns.
Chapter 11.10
HARBOR COMMISSION
Sections:
11.10.010 Duties and [P]owers.
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11.10.010 Duties and [P]Powers. (House Keeping)
(a) The Harbor Commission shall be required to do the following:
(1) Develop, adopt, alter, or revise, subject to approval by the City Council, a master
plan for the physical development of harbor or port facilities for the City. Such master
plan with accompanying maps, plats, charts, descriptive, and explanatory matter, shall
show the Harbor Commission’s recommendations for the development of the City Harbor
facilities may include, among other things:
(i) development of the type, location, and sequence of all public harbor facilities;
(ii) the relocation, removal, extension, or change of use of existing harbor facilities;
(2) Submit annually to the City Manager and Council, not less than ninety (90) days
prior to the beginning of the budget year, a list of the recommended capital improvements
which, in the opinion of the Commission, are necessary or desirable to be constructed
during the forthcoming three (3) year period. Such list shall be arranged in order of
preference, with recommendations as to which projects shall be constructed in which
year.
(3) Make investigations regarding any matter related to City harbor facilities, tide or
submerged lands. Make recommendations to the Council relative to the care, control,
and development of tide and submerged lands.
[(4) ACT IN THE CAPACITY AS DIRECTED AND AUTHORIZED BY A TIDELANDS
ORDINANCE ADOPTED BY THE CITY.]
([5]4) Review all City leases of City-owned tide, submerged, and lands or navigable
waters within the City, and as to the planned improvements proposed and make
recommendations to the City Council.
([6]5) Make and prepare reports and plans for approval by the City Council.
([7]6) Coordinate public efforts, individual and group, to the effectuation of approved
plans.
([8]7) Shall act in advisory capacity in the selection of a Harbor Director should such a
position be created by the City Council. These are primarily housekeeping changes. The
reference to the Tidelands Ordinance is removed as provisions in the Tidelands
Ordinance related to duties of the commission are proposed to be removed as provided
below, New duties may added moving forward.
Chapter 11.15
TIDELANDS
Sections:
11.15.010 Short [T]Title.
[11.15.020 DEFINITIONS.]
11.15.030 Approval and [A]Acceptance of State [C]Conveyance.
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11.15.040 Approval and [A]Adoption of [S]Subdivision [P]Plat.
[11.15.050 TIME AND PLACES OF POSTING PLAT.
11.15.060 PUBLICATION OF NOTICE OF POSTING PLAT AND PLAT AND PASSAGE
OF ORDINANCE.
11.15.070 TIME IN WHICH APPLICATIONS WILL BE ACCEPTED FOR FILING.
11.15.080 PROCEDURE FOR FILING APPLICATIONS.
11.15.090 INITIAL REVIEW BY COMMISSION.
11.15.100 PRELIMINARY PLAT.
11.15.110 PRELIMINARY PLAT REQUIREMENTS.
11.15.120 SURVEY PROCEDURE.
11.15.130 PROCEDURE ON FINAL PLAT.
11.15.140 FINAL PLAT REQUIREMENTS.
11.15.150 DEPOSITS FOR COSTS PREREQUISITE TO FILING.
11.15.160 ADDITIONAL COSTS IN CERTAIN CASES.
11.15.170 PROCEDURES FOR PROCESSING FILED APPLICATIONS.
11.15.180 APPRAISAL.
11.15.190 REVIEW BY CITY ENGINEER.
11.15.200 RECOMMENDED APPROVAL BY COMMISSION.
11.15.210 PROCESSING OF APPROVED APPLICATIONS BY CLERK AND NOTICE TO
PUBLIC.
11.15.220 DEEDS—PERMANENT REGISTER.
11.15.230 SPECIAL PROCEEDINGS FOR DISPUTED CLAIMS.
11.15.240 PROCEEDINGS FOR DETERMINATION BY COUNCIL OF ALL DISPUTES.
11.15.250 DETERMINATION UPON STIPULATION OF FACTS.
11.15.260 REJECTION OF PROTESTS OTHER THAN BY APPLICANT.
11.15.270 HANDLING OF DEPOSIT AND PURCHASE FUNDS.
11.15.280 FORFEITURE OF PREFERENCE RIGHTS.
11.15.290 FORMS.]
11.15.010 Short [T]Title.
This ordinance shall be known as the “Kenai Tidelands Ordinance.” No change recommended.
[11.15.020 DEFINITIONS.
FOR THE PURPOSE OF THIS ORDINANCE, THE TERMS DEFINED HEREIN SHALL HAVE
THE MEANING PROVIDED UNLESS THE CONTEXT REQUIRES OTHERWISE:
(A) “ALASKA” MEANS THE STATE OF ALASKA.
(B) “AGRICULTURAL LANDS” MEANS TIDELANDS CHIEFLY VALUABLE FOR
AGRICULTURAL PURPOSES.
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(C) “ASSESSOR” MEANS THE ASSESSOR OF THE CITY OF KENAI, ALASKA, OR
OTHER INDIVIDUAL DESIGNATED BY THE CITY MANAGER TO PERFORM THE
FUNCTIONS HEREIN ASSIGNED TO THE ASSESSOR.
(D) “CITY” MEANS THE CITY OF KENAI, ALASKA.
(E) “CITY ENGINEER” MEANS THE CITY ENGINEER OF THE CITY, OR OTHER CITY
OFFICIAL DESIGNATED TO PERFORM THE FUNCTIONS HEREIN ASSIGNED TO THE
CITY ENGINEER.
(F) “CLASS I PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO PERSONS
WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS SEAWARD OF A
SURVEYED TOWNSITE ON AND PRIOR TO SEPTEMBER 7, 1957, AND WHO HAVE
EXECUTED A WAIVER TO THE CITY AND STATE OF ALL RIGHTS SUCH OCCUPANT
MAY HAVE HAD PURSUANT TO PUBLIC LAW 85-303. UPON EXECUTION OF THE
WAIVER, SUCH PERSONS OR THEIR SUCCESSORS IN INTEREST, HAVE THE RIGHT
TO ACQUIRE SUCH OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS FROM
THE CITY FOR CONSIDERATION OF THE COSTS OF SURVEY, AND TRANSFERRING
AND CONVEYING THE TITLE.
(G) “CLASS II PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO CLASS I
PREFERENCE RIGHT CLAIMANTS WHO REFUSE TO EXECUTE A WAIVER TO THE
CITY OF ANY RIGHTS SUCH OCCUPANTS MAY HAVE ACQUIRED PURSUANT TO
PUBLIC LAW 85-303. IT SHALL BE MANDATORY FOR THE CITY TO EXPEDITIOUSLY
HONOR THE APPLICATION FROM THE OCCUPANT AFTER THE SECRETARY OF THE
ARMY HAS SUBMITTED TO THE SECRETARY OF THE INTERIOR AND GOVERNOR OF
THE STATE MAPS SHOWING THE PIERHEAD LINE ESTABLISHED BY THE CORPS OF
ENGINEERS WITH RESPECT TO THE TRACT SO GRANTED. THE MOST EXPEDITIOUS
METHOD OF SECURING TITLE TO SUCH LANDS IS TO EXECUTE THE WAIVER OF
CLASS II RIGHTS AND PROCEED TO APPLY FOR TITLE UNDER A CLASS I
PREFERENCE RIGHT.
(I) “CLASS III PREFERENCE RIGHT” MEANS THE RIGHT EXTENDED TO PERSONS
WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS AFTER SEPTEMBER
7, 1957, AND WHO CONTINUED TO OCCUPY THE SAME ON JANUARY 3, 1959. SUCH
PERSONS, OR THEIR SUCCESSORS, HAVE THE RIGHT TO ACQUIRE SUCH
OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS FOR A CONSIDERATION
NOT TO EXCEED THE COSTS OF APPRAISAL, AND THE ADMINISTERING AND
TRANSFERRING, INCLUDING SURVEY, TOGETHER WITH THE APPRAISED FAIR
MARKET VALUE THEREOF, EXCLUSIVE OF ANY VALUE OCCURRING FROM
IMPROVEMENTS OR DEVELOPMENT, SUCH AS FILL MATERIAL, BUILDING, OR
STRUCTURES THEREON.
(J) “CLERK” MEANS THE CLERK OF THE CITY.
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(K) “COMMISSION” MEANS THE CITY OF KENAI ADVISORY HARBOR COMMISSION
UNLESS NOTED OTHERWISE.
(L) “DIRECTOR” MEANS THE DIRECTOR OF LANDS, STATE OF ALASKA.
(M) “DIRECTOR’S LINE” MEANS A LINE SEAWARD OF THE CITY, APPROVED BY THE
DIRECTOR, WITH THE CONCURRENCE OF THE COMMISSIONER OF NATURAL
RESOURCES, STATE OF ALASKA, SEAWARD OF ALL TIDE AND SUBMERGED LANDS
OCCUPIED OR SUITABLE FOR OCCUPATION AND DEVELOPMENT WITHOUT
UNREASONABLE INTERFERENCE WITH NAVIGATION.
(N) “FAIR MARKET VALUE” MEANS THE HIGHEST PRICE, DESCRIBED IN TERMS OF
MONEY, WHICH THE PROPERTY WOULD BRING IF EXPOSED FOR SALE FOR A
REASONABLE TIME IN THE OPEN MARKET, WITH A SELLER, WILLING BUT NOT
FORCED TO SELL, AND A BUYER, WILLING BUT NOT FORCED TO BUY, BOTH BEING
FULLY INFORMED OF ALL THE PURPOSES FOR W HICH THE PROPERTY IS BEST
ADAPTED OR COULD BE USED.
(O) “FILL” SHALL MEAN EARTH, GRAVEL, ROCK, SAND, OR OTHER SIMILAR
MATERIALS PLACED UPON TIDE OR CONTIGUOUS SUBMERGED LANDS TO A
HEIGHT ABOVE THE HIGH WATER LINE FOR THE PURPOSE OF ELEVATING THE
LANDS FOR A SPECIAL USEFUL PURPOSE. EARTH, GRAVEL, ROCK, SAND, OR
OTHER SIMILAR MATERIALS, PLACED ON TIDE OR CONTIGUOUS SUBMERGED LAND
SOLELY FOR THE PURPOSE OF SPOILS DISPOSAL SHALL NOT BE CONSIDERED FILL
UNLESS SUCH FILL WAS USED FOR USEFUL AND BENEFICIAL PURPOSE ON AND
PRIOR TO JANUARY 3, 1959.
(P) “HEARINGS OFFICER” MEANS THAT CITY OFFICIAL EMPLOYED TO HEAR
DISPUTES BETWEEN CLAIMANTS, SUMMARIZE THE TESTIMONY, ATTEMPT TO
REACH STIPULATIONS OF FACT BETWEEN THE PARTIES, ASSEMBLE THE RECORD
OF THE DISPUTE, AND SUBMIT THE SAME TO THE COUNCIL FOR DETERMINATION.
(Q) “IMPROVEMENTS” MEANS BUILDINGS, WHARVES, PIERS, DRY DOCKS, AND
OTHER SIMILAR TYPES OF STRUCTURES PERMANENTLY FIXED TO THE TIDE OR
CONTIGUOUS SUBMERGED LANDS THAT WERE CONSTRUCTED AND/OR
MAINTAINED BY THE APPLICANT FOR BUSINESS, COMMERCIAL, RECREATION,
RESIDENTIAL, OR OTHER BENEFICIAL USES OR PURPOSES. FLOATS SECURED BY
GUIDE PILES USED AS FLOATING WHARVES, WHERE ACCESS IS PROVIDED TO THE
SHORE, SHALL BE IMPROVEMENTS WITHIN THE MEANING OF THIS SECTION, AND
FILL MATERIAL NOT ACTUALLY IN PLACE TO ABOVE THE LINE OF MEAN HIGH TIDE
OF JANUARY 3, 1959 AND ACTUALLY UTILIZED FOR BENEFICIAL PURPOSES ON
JANUARY 3, 1959 BY THE APPLICANT SHALL BE CONSIDERED A PERMANENT
IMPROVEMENT, BUT IN NO EVENT SHALL FILL BE CONSIDERED A PERMANENT
IMPROVEMENT WHEN PLACED ON THE TIDELANDS SOLELY FOR THE PURPOSE OF
DISPOSING OF WASTE OR SPOILS. FILL MATERIAL NOT UTILIZED FOR A BENEFICIAL
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PURPOSE ON AND PRIOR TO JANUARY 3, 1959, AND FILL MATERIAL NOT ACTUALLY
IN PLACE TO ABOVE THE LINE MEAN HIGH TIDE ON JANUARY 3, 1959 SHALL NOT BE
THE BASIS FOR AN APPLICATION, NOR SHALL IT BE INCLUDED IN ANY APPLICATION,
FOR THE EXERCISE OF PREFERENCE RIGHTS HEREUNDER.
(R) “INDUSTRIAL AND COMMERCIAL LANDS” MEANS TIDE LANDS CHIEFLY
VALUABLE FOR INDUSTRIAL, MANUFACTURING, OR COMMERCIAL PURPOSES.
(S) “KENAI” MEANS THE CITY OF KENAI, ALASKA.
(T) “MANAGER” MEANS THE MANAGER OF THE CITY OF KENAI, ALASKA.
(U) “MEAN HIGH TIDE” AT ANY PLACE SUBJECT TO TIDAL INFLUENCE SHALL BE
INTERPRETED AS THE TIDAL DATUM PLANE DERIVED FROM AVERAGING ALL THE
HIGH WATERS OBSERVED AT THAT PLACE OVER A PERIOD OF NINETEEN (19)
YEARS. MEAN HIGH WATER SHALL BE INTERPRETED TO BE AS THE INTERSECTION
OF THE DATUM PLACE OF MEAN HIGH WATER WITH THE SHORE.
(V) “MEAN LOW TIDE” SHALL BE INTERPRETED TO BE MEAN LOWER LOW W ATER
WHICH IS THE MEAN OF THE LOWER OF THE TWO LOW WATERS OF EACH DAY FOR
A TIDAL CYCLE OF NINETEEN (19) YEARS.
(W) “OCCUPANT” MEANS ANY PERSON AS DEFINED HEREIN, OR HIS SUCCESSOR
IN INTEREST, WHO ACTUALLY OCCUPIED FOR ANY BUSINESS, RESIDENTIAL, OR
OTHER BENEFICIAL PURPOSE, TIDE OR SUBMERGED LAND, WITHIN THE
CONVEYANCE OF SUCH BY THE STATE TO THE CITY, ON OR PRIOR TO JANUARY 3,
1959, WITH SUBSTANTIAL PERMANENT IMPROVEMENTS. NO PERSON SHALL BE
CONSIDERED AN OCCUPANT BY REASON OF HAVING:
(1) PLACED A FISH TRAP IN POSITION FOR OPERATION OR STORAGE UPON
THE TIDE, SHORE, OR SUBMERGED LAND;
(2) PLACED A SET NET OR PILING THEREFOR OR ANY OTHER DEVICE OR
FACILITY FOR TAKING OF FISH;
(3) PLACED PILINGS OR DOLPHINS FOR LONG STORAGE OR OTHER
MOORAGE;
(4) PLACED TELEPHONE, POWER, OR OTHER TRANSMISSION FACILITIES,
ROADS, TRAILS, OR OTHER CONTIGUOUS SUBMERGED LANDS; OR
(5) CLAIMED THE LAND BY VIRTUE OF SOME FORM OF CONSTRUCTIVE
OCCUPANCY. WHERE LAND IS OCCUPIED BY A PERSON OTHER THAN THE
OWNER OF THE IMPROVEMENTS THEREON, THE OWNER OF THE
IMPROVEMENTS SHALL, FOR THE PURPOSE OF THIS ORDINANCE, BE
CONSIDERED THE OCCUPANT OF SUCH LANDS.
(X) “OCCUPIED OR DEVELOPED” MEANS THE ACTUAL USE, CONTROL, AND
OCCUPANCY, BUT NOT NECESSARILY RESIDENCE, OF THE TIDE OR SUBMERGED
LAND BY THE ESTABLISHMENT THEREON OF SUBSTANTIAL PERMANENT
IMPROVEMENTS.
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(Y) “ORDINANCE” MEANS THE KENAI TIDELANDS ORDINANCE.
(Z) “PARK AND RECREATION LANDS” MEANS TIDELANDS CHIEFLY VALUABLE FOR
PUBLIC PARK AND RECREATION USE, INCLUDING SCENIC OVERLOOKS.
(AA) “PERSON” MEANS ANY PERSON, FIRM, CORPORATION, COOPERATIVE
ASSOCIATION, PARTNERSHIP OR OTHER ENTITY LEGALLY CAPABLE OF OWNING
LAND OR ANY INTEREST THEREIN.
(BB) “PIERHEAD LINE” IS A LINE FIXED BY THE CORPS OF ENGINEERS ROUGHLY
PARALLEL TO THE EXISTING LINE OF MEAN LOW TIDE AT SUCH DISTANCE
OFFSHORE THEREFROM THAT SAID PIERHEAD LINE SHALL ENCOMPASS
LANDWARD ALL STATIONARY, MANMADE STRUCTURES UNDER THE AUTHORITY OF
PUBLIC LAW 85-303.
(CC) “PREFERENCE RIGHT” SUBJECT TO THE CLASSIFICATIONS THEREOF HEREIN
ESTABLISHED MEANS THE RIGHT OF AN OCCUPANT TO ACQUIRE BY GRANT,
PURCHASE, OR OTHERWISE, AT THE ELECTION OF THE OCCUPANT, EXCEPT AS
OTHERWISE LIMITED OR PRESCRIBED IN THIS ORDINANCE, ANY LOT, PIECE,
PARCEL, OR TRACT OF TIDELAND OR SUBMERGED LAND OCCUPIED OR
DEVELOPED BY SUCH OCCUPANT ON AND PRIOR TO JANUARY 3, 1959.
(DD) “STATE” MEANS THE STATE OF ALASKA.
(EE) “SUBMERGED LANDS” MEANS LAND COVERED BY TIDAL WATERS BETWEEN
THE LINE OF MEAN LOW WATER AND SEAWARD TO A DISTANCE OF THREE (3)
GEOGRAPHICAL MILES, IN THEIR NATURAL STATE, WITHOUT BEING AFFECTED BY
MANMADE STRUCTURES, FILL, AND SO FORTH.
(FF) “SUBSTANTIAL PERMANENT IMPROVEMENTS” SHALL FOR THE PURPOSES OF
THE ORDINANCE HAVE THE SAME MEANING AS IMPROVEMENTS, AS HEREIN
DEFINED.
(GG) “TIDELANDS” MEANS LANDS PERIODICALLY COVERED BY TIDAL WATERS
BETWEEN THE ELEVATIONS OF MEAN HIGH TIDE AND MEAN LOW TIDES, WITHOUT
REGARD TO ARTIFICIAL INTERFERENCE WITH TIDAL FLOWS CAUSED BY MANMADE
STRUCTURES, BREAKWATERS, FILL, AND THE LIKE. WHEN USED IN THIS
ORDINANCE, IT SHALL ALSO INCLUDE SUBMERGED LANDS CONVEYED BY THE
STATE TO THE CITY.
(HH) “TIDELANDS SUBDIVISION PLAT” IS THAT CERTAIN PLAT OF SUBDIVISION OF
TIDELANDS AND SUBMERGED LANDS CONVEYED BY THE STATE TO THE CITY MADE
BY H.H. GALLIETT, JR., REGISTERED ENGINEER, DATED DECEMBER, 1968, KNOWN
AS ALASKA TIDELANDS SURVEY NO. 272 AND FILED AS 76-179 IN THE KENAI
RECORDING DISTRICT SHOWING ALL STRUCTURES AND IMPROVEMENTS
THEREON AND THE BOUNDARIES OF EACH TRACT OCCUPIED OR DEVELOPED,
TOGETHER WITH THE NAME OF THE OWNER OR CLAIMANT THEREOF, INCLUDING
WITHIN THE BOUNDARIES OF EACH TRACT OCCUPIED OR DEVELOPED SUCH
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SURROUNDING TIDE AND SUBMERGED LANDS AS SHALL BE REASONABLY
NECESSARY IN THE OPINION OF THE COUNCIL FOR THE USE AND ENJOYMENT OF
THE STRUCTURES AND IMPROVEMENTS THEREON BY THE OWNER OR CLAIMANT,
BUT SHALL NOT INCLUDE ANY TIDE OR SUBMERGED LANDS WHICH IF GRANTED TO
SUCH OCCUPANT, WOULD UNJUSTLY DEPRIVE ANY OCCUPANT OF ADJOINING
LANDS FROM HIS REASONABLE USE AND ENJOYMENT THEREOF.] These definitions
are not relevant nor needed based on removal of code sections below. For example, section
11.15.040 contains sufficient information to identify the plat in question without need of the
definition immediately preceding (HH).
11.15.030 Approval and [A]Acceptance of State [C]Conveyance. (House
Keeping)
The conveyance by the State to the City, dated January 6, 1977 of tidelands and submerged
lands lying seaward of the City is hereby approved and accepted and the lands therein are hereby
declared incorporated into the limits of the City. This has historical significance that should be
maintained.
11.15.040 Approval and [A]Adoption of [S]Subdivision [P]Plat. (House
Keeping)
The Tidelands Subdivision Plat, hereinafter called “Plat” is hereby approved and adopted as the
official Tidelands Subdivision Plat of the City of Kenai, Alaska, of tide and submerged lands
conveyed by the State to the City by conveyance dated January 6, 1977. Said Alaska Tidelands
Survey is numbered 272 and is filed under 76-179 in the Kenai Recording District. This has
historical significance that should be maintained.
Sections 11.15.050 through 11.15.290 below are all proposed to be deleted because they
describe a process that expired over 30 years ago.
[11.15.050 TIME AND PLACES OF POSTING PLAT.
SAID PLAT SHALL BE POSTED FOR A PERIOD OF NOT LESS THAN SIXTY (60) DAYS,
COMMENCING WITH THE DATE FOLLOWING THE DATE OF FINAL PASSAGE OF THIS
ORDINANCE, IN THE OFFICE OF THE CLERK, CITY HALL BUILDING. This posting has already
been completed.
11.15.060 PUBLICATION OF NOTICE OF POSTING PLAT AND PLAT AND
PASSAGE OF ORDINANCE.
THE CLERK SHALL CAUSE TO BE ISSUED AND PUBLISHED ONCE A WEEK FOR FOUR
WEEKS, IN A NEWSPAPER OF GENERAL CIRCULATION IN THE CITY, COMMENCING THE
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DAY AFTER THE DATE OF FINAL PASSAGE OF THIS ORDINANCE, A NOTICE OF THE
POSTING OF SAID PLAT CONTAINING THE FOLLOWING STATEMENTS:
(A) TIME AND PLACE OF POSTING.
(B) THE DAY OF FINAL PASSAGE AND THE EFFECTIVE DATE OF THIS ORDINANCE
WHICH ADOPTS THE PLAT AS THE OFFICIAL TIDELANDS SUBDIVISION PLAT OF THE
TIDE AND SUBMERGED LANDS CONVEYED BY THE STATE TO THE CITY ON
JANUARY 6, 1977.
(C) THAT ANY AND ALL PERSONS HAVING OR CLAIMING PREFERENCE RIGHTS
PROVIDED BY LAW AND AS HEREIN DEFINED TO ANY PART OR PARTS OF THE
SUBDIVIDED LAND EMBRACED WITHIN THE BOUNDARIES OF SAID PLAT, WHO FAIL
TO APPLY TO EXERCISE SUCH RIGHTS UNDER THE PROVISIONS OF THIS
ORDINANCE WITHIN TWO (2) YEARS FROM AND AFTER OCTOBER 6, 1979, WHICH IS
HEREBY DECLARED TO BE THE DATE UPON WHICH APPLICATIONS THEREFOR WILL
BE FIRST ACCEPTED BY THE CITY, SHALL HAVE FORFEITED THEIR PREFERENCE
RIGHTS PROVIDED BY LAW AND THIS ORDINANCE.
(D) THAT THIS ORDINANCE WAS ENACTED TO PROTECT OCCUPANTS HAVING
PREFERENCE RIGHTS, TO AFFORD DUE PROCESS OF LAW, TO PROVIDE
PROCEDURES FOR APPLYING FOR EXERCISE OF PREFERENCE RIGHTS, FOR
HEARING AND ADJUDICATING ADVERSE CLAIMS, AND FOR CONVEYING TITLE TO
OCCUPANTS HOLDING PREFERENCE RIGHTS DEFINED BY LAW AND THIS
ORDINANCE.
(E) THAT COPIES OF THIS ORDINANCE AND APPLICATION FORMS ARE AVAILABLE
AT THE OFFICE OF THE CLERK OF THE CITY. This publication has already been
completed.
11.15.070 TIME IN WHICH APPLICATIONS WILL BE ACCEPTED FOR
FILING.
APPLICATION FORMS, IN SUBSTANTIALLY THE FORM SET FORTH IN KMC 11.15.290(A)
WILL BE ACCEPTED FOR FILING ONE BUSINESS DAY AFTER THE EFFECTIVE DATE OF
THIS ORDINANCE, AND ENDING TWO CALENDAR YEARS THEREAFTER AND AT THE
CLOSE OF BUSINESS AT 5:00 P.M., AFTER WHICH NO APPLICATION FORMS WILL BE
FURNISHED AND AFTER WHICH NO APPLICATIONS WILL BE ACCEPTED FOR FILING. This
timeline has long expired.
11.15.080 PROCEDURE FOR FILING APPLICATIONS.
APPLICATIONS SHALL BE SUBMITTED, AND WILL BE RECEIVED FOR FILING, ONLY FOR
THE PURPOSE OF CLAIMING PREFERENCE RIGHTS HEREIN DEFINED TO THE
TIDELANDS CONVEYED TO THE CITY BY THE STATE.
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(A) APPLICATION FORMS W ILL BE PROVIDED BY THE CLERK WITHOUT CHARGE AT
THE CITY CLERK’S OFFICE IN THE CITY HALL BUILDING.
(B) APPLICATIONS MUST BE SUBMITTED IN TRIPLICATE.
(C) APPLICATIONS NOT CLEARLY LEGIBLE NOR PROPERLY COMPLETED AND
CERTIFIED BY THE APPLICANT WILL NOT BE ACCEPTED FOR FILING. SINCE THE
FACT ALLEGED MAY BE USED IN HEARINGS OF DISPUTES THEIR TRUTH MUST BE
CERTIFIED. THE FACTS ALLEGED WILL ALSO BE THE BASIS FOR THE
CONVEYANCES OF VALUABLE PROPERTY. WILLFUL AND DELIBERATE
MISSTATEMENTS OF FACT WILL BE EQUIVALENT TO ATTEMPTING TO OBTAIN
VALUABLE PUBLIC PROPERTY BY MISREPRESENTATION AND MAY BE
PROSECUTED AS OBTAINING PROPERTY UNDER FALSE PRETENSES.
(D) APPLICATIONS MAY BE MAILED TO THE CITY CLERK, [P.O. BOX 580] 210
FIDALGO AVENUE, KENAI, ALASKA, 99611, WITH THE PROPER DEPOSIT COMPUTED
ACCORDING TO THE NATURE OF THE APPLICATION MADE. APPLICATIONS
PROPERLY COMPLETED ACCOMPANIED WITH THE PROPER DEPOSIT WILL BE
STAMPED WITH THE TIME AND DATE OF FILING AND SIGNED BY THE PERSON
ACCEPTING THE DEPOSIT. THE TRIPLICATE COPY WILL THEN BE DELIVERED TO
THE APPLICANT, OR MAILED TO HIM IF A RETURN ENVELOPE WITH POSTAGE
AFFIXED IS FURNISHED OR DELIVERED TO THE CITY CLERK, CITY ADMINISTRATION
OFFICES, AIRPORT TERMINAL BUILDING, KENAI, ALASKA.
(E) ANY APPLICATION FOR A DEED BASED ON AN ASSERTED RIGHT OTHER THAN
A PREFERENCE RIGHT SHALL BE REJECTED.
(F) ANY APPLICATIONS NOT WAIVING THE CLASS II PREFERENCE RIGHT SHALL BE
FILED BY THE CLERK, TOGETHER WITH ALL OTHERS OF LIKE NATURE, TO AWAIT
THE OFFICIAL PROMULGATION OF THE PIERHEAD LINE. THEREAFTER SUCH
APPLICATIONS SHALL BE PROCESSED AS APPLICATIONS UNDER THE CLASS I
RIGHTS.
(G) APPLICATIONS NOT ACCOMPANIED BY THE PROPER DEPOSIT FOR COSTS
SHALL BE REJECTED. These application are no longer accepted.
11.15.090 INITIAL REVIEW BY PLANNING & ZONING COMMISSION.
AFTER INITIAL REVIEW OF THE APPLICATION BY THE COMMISSION, THE APPLICANT
SHALL HAVE PREPARED AT HIS OWN COST A PRELIMINARY AND FINAL PLAT AS
DESCRIBED IN THE FOLLOWING SECTION. There are no new applications to review.
11.15.100 PRELIMINARY PLAT.
(A) THE APPLICANT SHALL PREPARE, OR HAVE PREPARED, A PRELIMINARY PLAT
OF THE TIDE, SHORE, OR SUBMERGED LANDS WHICH HE CLAIMS. THIS PLAT SHALL
COMPLY WITH THE REQUIREMENTS HEREINAFTER SET FORTH.
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Ordinance No. 3106-2020
(B) THE PURPOSE OF A PRELIMINARY PLAT IS TO AFFORD THE OCCUPANT AN
OPPORTUNITY OF RECEIVING PRELIMINARY REVIEW AND PREVENT THE
UNNECESSARY EXPENDITURE OF MONEY AND TIME THAT WOULD BE
NECESSITATED IF MAJOR CHANGES WERE REQUIRED.
(C) THE APPLICANT MUST FILE HIS APPLICATION ACCOMPANIED BY FOUR BLACK
OR BLUE-LINED PLATS OF THE LAYOUT.
(D) THE PLANNING & ZONING COMMISSION SHALL FORWARD THE PRELIMINARY
PLAT TO AN ENGINEER TO BE DESIGNATED BY THE PLANNING & ZONING
COMMISSION, WHO SHALL REPORT TO THE PLANNING & ZONING COMMISSION HIS
APPROVAL OR DISAPPROVAL OF THE PLAT FOR TECHNICAL OR ENGINEERING
REASONS AND THE PLANNING & ZONING COMMISSION SHALL, WITHIN NINETY (90)
DAYS AFTER SUBMISSION OF THE PRELIMINARY PLAT, NOTIFY THE APPLICANT OF
THE TENTATIVE APPROVAL OR DISAPPROVAL OF THE PLAT AND HIS REASONS
THEREFOR.
(E) CONDITIONAL APPROVAL OF THE PRELIMINARY PLAT SHALL NOT CONSTITUTE
APPROVAL OF THE FINAL PLAT. RATHER, IT SHALL BE DEEMED AN EXPRESSION OF
APPROVAL AS A GUIDE TO PREPARATION OF THE FINAL PLAT. There are no new plats
of this nature to review.
11.15.110 PRELIMINARY PLAT REQUIREMENTS.
THE PRELIMINARY PLAT SHALL SHOW THE FOLLOWING INFORMATION:
(A) LEGAL DESCRIPTION OF LOCATION TO INCLUDE LATITUDE AND LONGITUDE TO
THE NEAREST MINUTE AT ONE CORNER OF THE SURVEY AND THE TOTAL ACRES
OF THE AREA OCCUPIED OR CLAIMED.
(B) NAME AND ADDRESS OF APPLICANT AND NAME OF LAND SURVEYOR, IF ANY,
WHO PREPARED THE PRELIMINARY LAYOUT.
(C) THE HORIZONTAL SCALE SHALL BE 100’ TO THE INCH UNLESS OTHERWISE
APPROVED BY THE PLANNING & ZONING COMMISSION.
(D) DATE OF PREPARATION AND NORTH POINT.
(E) THE HORIZONTAL SCALE SHALL BE 100’ TO THE INCH UNLESS OTHERWISE
APPROVED BY THE PLANNING & ZONING COMMISSION.
(F) THE LOCATION OF ALL ROADS WITHIN 200’ OF THE TRACT, FILL MATERIAL,
EXISTING PERMANENT BUILDINGS, OR OTHER STRUCTURES WITHIN THE PARCEL,
EXISTING UTILITY LINES, MEAN HIGH AND LOW TIDE LINES WITH REFERENCE TO
PERMANENT STRUCTURES AND OTHER PERMANENT FEATURES SUCH AS SECTION
LINES, AND SUCH OTHER INFORMATION AS MAY BE REQUESTED BY THE CITY.
(G) SPACE FOR APPROVAL AND/OR COMMENT BY THE PLANNING & ZONING AND
HARBOR COMMISSIONS.
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Ordinance No. 3106-2020
(H) THE NAMES OF ADJACENT OWNERS OR CLAIMANTS, IF ANY, OTHER THAN THE
CITY.
(I) ADJACENT U.S. SURVEYS, IF ANY, GIVING THE NUMBER OF THE SURVEY.
(J) A VICINITY SKETCH OR KEY MAP SHOULD BE SHOWN ON THE PRELIMINARY
LAYOUT. THE SCALE SHALL NOT BE LESS THAN ONE-HALF INCH TO THE MILE. THE
RELATIVE LOCATION OF THE PARCEL BEING APPLIED FOR, THE PRINCIPAL ROAD
SYSTEMS AND SECTION OR SPECIAL SURVEY LINES SHALL ALSO BE SHOWN. There
are no new related plats to review and the city and borough have requirements for other plats.
11.15.120 SURVEY PROCEDURE.
WHEREVER FEASIBLE, DATA AS SET FORTH IN ATS 272, RECORDED IN THE KENAI
RECORDING DISTRICT AS 76-179 SHALL BE USED. WHERE ADDITIONAL DATA IS
REQUIRED THE FOLLOWING PROCEDURES SHALL GOVERN:
(A) DETERMINING THE LINE OF MEAN HIGH TIDE.
(1) IN THE CASE OF U.S. SURVEY WHICH ABUTS THE TIDELANDS, SUCH U.S.
SURVEY BEING MADE PRIOR TO THE DATE OF STATEHOOD, THE LINE OF MEAN
HIGH TIDE SHALL BE CONSTRUED TO BE EITHER THE MEANDER LINES
ESTABLISHED ON THE SEAWARD SIDE OF THE U.S. SURVEY OR THE LINE AS
DEFINED UNDER SECTION 2(S) OF THESE REGULATIONS, WHICHEVER IS THE
LOWER.
(2) FOR TIDELANDS SURVEYS ABUTTING ANY U.S. SURVEY MADE AFTER THE
DATE OF STATEHOOD OR IN ANY LOCATION WHERE NO UPLANDS SURVEY
EXISTS, THE LINE OF MEAN HIGH TIDE SHALL BE DETERMINED BY USING
U.S.C. & G.S. BENCH MARKS (OR ANY OTHER BENCH MARKS WHICH HAVE BEEN
ESTABLISHED FROM THAT SOURCE), AND TIDE TABLE DATUM. THE UPLAND
BOUNDARY NEED NOT FOLLOW THIS LINE IN ITS ENTIRE EXACTNESS, BUT MAY
FOLLOW IN A “MEANDER” OR “AVERAGE” LINE OF MEAN HIGH TIDE. EACH END
OF THE BOUNDARY SHOULD BE ESTABLISHED ON THE ELEVATION OF MEAN
HIGH TIDE. PROVIDED, HOWEVER, THAT WHERE THE TRUE LINE OF MEAN HIGH
TIDE HAS BEEN ALTERED BY FILL OR ARTIFICIAL ACCRETION, THE LINE OF HIGH
TIDE AS IT EXISTED PRIOR TO SUCH ALTERATION SHALL GOVERN.
(3) IN THE CASE THAT NO U.S.C. & G.S. BENCH MARK EXISTS WITHIN ONE MILE
OF THE PROPERTY BEING SURVEYED, THE SURVEYOR MAY, BY USING THE
TIDE TABLES FOR THE IMMEDIATE BODY OF WATER, AND APPLYING TIDAL
READINGS HE HAS TAKEN, DETERMINE THE LINE OF MEAN HIGH TIDE AND USE
IT IN ACCORDANCE WITH PARAGRAPH (2) OF THIS SECTION. IN SOME CASES,
SUCH AS SALT OR MUD FLAT AREAS WHERE THE AVERAGE GRADE OF THE
BENCH IS TEN PERCENT (10%) OR LESS AND DETERMINING THE ELEVATION OF
THE LINE OF MEAN HIGH TIDE COULD CREATE A LENGTHY HORIZONTAL
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Ordinance No. 3106-2020
DISTANCE, THE CITY COUNCIL MAY REQUIRE THAT THE TRUE LINE OF MEAN
HIGH TIDE BE ESTABLISHED, REGARDLESS OF THE DISTANCE FROM A KNOWN
BENCH MARK.
(B) METHOD OF ESTABLISHING SIDE BOUNDARY LINES.
(1) IN FIXING THE SIDE BOUNDARY LINES, THE GENERAL RULES OF
EXTENDING RIPARIAN BOUNDARY LINES, AS OUTLINED BY SUCH AUTHORS AS
RAYNER, CLARK OR BROWN, SHALL BE FOLLOWED. IN THE EVENT THAT
ACTUAL OCCUPANCY DOES NOT MATCH THE RIPARIAN BOUNDARIES, THE
SURVEY SHALL BE MADE TO INCLUDE THE OCCUPANT’S HOLDINGS AND NOT
TO ENCROACH ON THE ADJOINING OCCUPANT. This section applies to specific
plats which are no longer reviewed.
11.15.130 PROCEDURE ON FINAL PLAT.
(A) THE FINAL PLAT SHALL CONFORM SUBSTANTIALLY TO THE PRELIMINARY
LAYOUT AS APPROVED BY THE COMMISSION.
(B) THE FINAL PLAT SHALL BE SUBMITTED TO THE CITY CLERK ON GOOD QUALITY
TRACING CLOTH, IN INK, OR MYLARS TOGETHER WITH FIVE PRINTS.
(C) THE FINAL PLAT SHALL BE DRAWN TO SCALE OF 1” EQUALS 100’, WITH AN
OPTION OF USING 1” EQUALS 20’ OR 40’, ON SHEETS OF ONE OF THREE SIZES: 18”
X 24”, 31 1/2” X 34”, OR 22” X 36”, UNLESS OTHERWISE APPROVED BY THE
COMMISSION. WHEN MORE THAN ONE SHEET IS REQUIRED, AN INDEX SHALL BE
FILED SHOWING THE ENTIRE PARCEL WITH THE SHEETS IN NUMERICAL ORDER,
AND EACH SHEET SHOWING THE TOTAL NUMBER, I.E., SHEET 1 OF 3. WHEN MORE
THAN ONE SHEET IS SUBMITTED, ONLY THE LAST MUST HAVE THE APPROVAL
BLOCKS, BUT ALL SHEETS MUST BE THE SAME SIZE.
(D) WHEN THE FINAL PLAT HAS BEEN APPROVED BY THE PLANNING & ZONING
COMMISSION, ONE COPY SHALL BE SENT, ALONG WITH THE DEED TO THE
PROPERTY, TO THE MAGISTRATE OF THE RECORDING DISTRICT IN WHICH THE
TRACT LIES FOR OFFICIAL RECORDING. SPECIAL INSTRUCTIONS SHALL BE SENT
TO THE MAGISTRATE INSTRUCTING HIM TO SEND THE DEED TO THE OCCUPANT
AFTER RECORDING. ONE COPY OF THE PLAT WILL BE RETURNED TO THE
OCCUPANT. THE ORIGINAL TRACING CONTAINING THE CERTIFICATION BY THE
PLANNING & ZONING COMMISSION WILL BE RETAINED BY THE CITY. PRINTS OR
DUPLICATE TRANSPARENCIES WILL BE FURNISHED AT COST OF REPRODUCTION.
This provision applies to plats that are no longer processed.
11.15.140 FINAL PLAT REQUIREMENTS.
(A) THE FINAL PLAT SHALL INCLUDE ALL INFORMATION REQUIRED ON THE
PRELIMINARY PLAT.
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Ordinance No. 3106-2020
(B) THE FINAL PLAT MUST REPRESENT AN ACTUAL SURVEY MADE BY A PERSON
WHO HAS BEEN QUALIFIED BY THE STATE OF ALASKA, BOARD OF ENGINEERS &
ARCHITECTS EXAMINERS TO PRACTICE LAND SURVEYING IN THE STATE OF
ALASKA.
(C) IN ADDITION THERETO, THE FOLLOWING INFORMATION SHALL BE SHOWN ON
THE FINAL PLAT:
(1) BOUNDARY LINES OF THE PARCEL WITH LENGTH AND BEARINGS WHICH
MUST CLOSE WITHIN THE LIMITS OF ONE TO 5,000. IF THE SEAWARD LIMITS OF
THE SURVEY FALLS WITHIN THE LINE OF MEAN LOW TIDE, THE SEAWARD
BOUNDARY MUST REPRESENT LINES ACTUALLY ESTABLISHED BY THE
SURVEYOR.
(2) ALL EASEMENTS AS REQUIRED BY THE CITY.
(3) BASIS OF BEARINGS USED.
(4) A PROPERLY LABELED LEGEND SHOWING MONUMENTS AS FOUND OR
ESTABLISHED.
(5) THE COURSE OF THE SHORELINE FOR AN ADDITIONAL 400’ FROM EACH
SIDE OF THE SURVEY.
(D) MONUMENTS.
(1) MINIMUM REQUIREMENTS: MONUMENTS SHALL CONSIST OF A 1 1/2”
GALVANIZED IRON PIPE, 30 OR MORE INCHES LONG. THIS PIPE SHALL HAVE A
FOUR-INCH FLANGE ACROSS THE BOTTOM AND SHALL BE FILLED WITH
CONCRETE. FIRMLY EMPLACED IN THE CONCRETE AT THE TOP SHALL BE A
BRASS OR BRONZE CAP. THE PIPE SHALL BE THOROUGHLY TAMPED WHEN
SET.
(2) THE BRASS OR BRONZE CAP SHALL HAVE A MINIMUM OF TWO-INCH
DIAMETER ACROSS THE TOP AND 3/4” BY 2 1/2” SHANK. EACH CAP SHALL BE
MARKED IN ACCORDANCE WITH THE MANUAL OF SURVEYING INSTRUCTIONS
AS COMPILED BY THE BUREAU OF LAND MANAGEMENT AND SHALL ALSO SHOW
THE REGISTRATION NUMBER OF THE SURVEYOR.
(3) WHERE IMPRACTICABLE TO SET AN IRON PIPE MONUMENT, A TABLET
CONTAINING A MINIMUM OF ONE THOUSAND (1,000) CUBIC INCHES OF
CONCRETE AND A BRASS OR BRONZE CAP MARKING THE ACTUAL CORNER
POINT MAY BE USED. SHOULD THE POINT FOR A CORNER BE IN A PLACE WHICH
WOULD BE IMPRACTICABLE TO MONUMENT, WITNESS CORNERS SHALL BE SET
IN A SAFE PLACE ON THE SURVEY BOUNDARY LINE OR HAVE TWO (2)
REFERENCE MONUMENTS SET. THE MONUMENTS ON THE UPLANDS SIDE OF
THE SURVEY SHALL BE REFERENCED TO BEARING OBJECTS, SUCH AS TREES,
ROCKS, PILING, BUILDINGS, ETC., OR HAVE TWO (2) REFERENCE MONUMENTS
SET MARKING THE CORNER.
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Ordinance No. 3106-2020
(E) THESE REFERENCES MAY BE SHOWN ON THE PLAT OF SURVEY OR MAY BE
LISTED SEPARATELY ON A PLAT AS DESCRIBED UNDER KMC 11.15.130(C).
(1) UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL, EACH SURVEY
SHALL HAVE AT LEAST FOUR (4) MONUMENTS, EACH FULLY DESCRIBED IN THE
PLAT OF SURVEY. IT IS DESIRABLE BUT NOT MANDATORY THAT MONUMENTS
BE SET AT ALL EXTERIOR ANGLE POINTS OF THE PARCEL. THE LINE OF SIGHT
BETWEEN ADJACENT MONUMENTS SHALL BE UNOBSTRUCTED. THE DISTANCE
BETWEEN ADJACENT MONUMENTS SHALL NOT EXCEED ONE THOUSAND
THREE HUNDRED TWENTY FEET (1,320′). NO PART OF THE PARCEL SHALL BE
FARTHER THAN ONE THOUSAND THREE HUNDRED TWENTY FEET (1,320′) FROM
A MONUMENT UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL.
(2) IF THE POINT FOR THE SEAWARD CORNER FALLS IN AN UNSAFE PLACE, A
WITNESS CORNER SHALL BE ESTABLISHED ON THE SIDE BOUNDARY LINE.
(F) RELATIONSHIP TO KNOWN MONUMENT.
(1) BEARINGS OF ALL LINES SHALL BE REFERRED TO THE TRUE MERIDIAN.
THE MAGNETIC NEEDLE MAY NOT BE USED FOR THIS PURPOSE. BEARINGS
SHALL BE OBTAINED BY DEFLECTION FROM EXISTING OFFICIAL SURVEYS AT
THE G.L.O., B.L.M., U.S.C., AND G.S., U.S.G.S., THE ALASKA DIVISION OF LANDS,
OR MONUMENTS WITH PROPER IDENTIFICATION WHICH ARE DELINEATED ON
RECORDED PLATS, UNLESS OTHERWISE PROVIDED FOR IN THESE
REGULATIONS.
(2) TRUE BEARINGS AND DISTANCES TO THE NEAREST ESTABLISHED SURVEY
LINES, SUCH AS THOSE LISTED PREVIOUSLY, WHICH SHALL BE ACCURATELY
DESCRIBED ON THE PLAT, SHALL BE SHOWN. This provision applies to plats athat are
no longer processed.
11.15.150 DEPOSITS FOR COSTS PREREQUISITE TO FILING.
THE APPLICATION FORM WILL ASSIST THE APPLICANT IN DETERMINING THE
PROPER COSTS TO ADVANCE, WHICH WILL DEPEND UPON THE NATURE OF THE
RIGHT CLAIMED. IN ALL CASES A FILING FEE AS SET FORTH IN THE CITY’S
SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL SHALL BE REQUIRED.
SURVEY COSTS DEPEND UPON THE AREA CLAIMED AT A PER FOOT RATE AS SET
FORTH IN THE CITY’S SCHEDULE OF FEES. IF THE AREA CLAIMED IS DIFFERENT
FROM THE LOT AS IT APPEARS ON THE PLAT, THE APPLICANT SHALL SHOW THE
MEASUREMENTS OF THE ADDITIONAL OR LESSER AREA CLAIMED AND COMPUTE
AND PAY THE DIFFERENT SURVEY COST ACCORDINGLY. TRANSFER COSTS WILL
BE THE SAME IN ALL CASES. THEY COVER THE COST OF TIME ESTIMATED TO BE
REQUIRED TO EXAMINE, PROCESS, AND APPROVE THE APPLICATION, AS WELL AS
TO PREPARE AND EXECUTE THE DEED, PUBLISH NOTICE, GIVE NOTICE OF
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Ordinance No. 3106-2020
ADDITIONAL COSTS, IF ANY, AND GIVE NOTICE TO APPLICANT. IN ALL CASES,
TRANSFER COSTS WILL BE IN AN AMOUNT AS SET FORTH IN THE CITY’S SCHEDULE
OF FEES ADOPTED BY THE CITY COUNCIL. DEPOSIT FOR APPRAISAL COSTS WILL
BE REQUIRED IN ALL CASES OF CLASS III PREFERENCE RIGHTS, OR WHERE
ANOTHER ASSERTED RIGHT IS DETERMINED BY THE COUNCIL TO BE A CLASS III
RIGHT. APPRAISAL COSTS SHALL DEPEND UPON THE AREA INVOLVED AND THE
COMPLEXITY OF THE APPRAISAL SOUGHT. WHERE REQUIRED AS A DEPOSIT, THE
MINIMUM AND MAXIMUM DEPOSIT FOR THE APPRAISAL FEE SHALL BE AS SET
FORTH IN THE CITY’S SCHEDULE OF FEES. This provision applies to plats that are no
longer processed.
11.15.160 ADDITIONAL COSTS IN CERTAIN CASES.
ASIDE FROM DEPOSITS REQUIRED AT THE TIME OF FILING APPLICATIONS, ADDITIONAL
COSTS WILL BE REQUIRED TO BE PAID PRIOR TO HEARINGS WHERE DISPUTES
REQUIRE HEARINGS, AND FOR COST OF LAND UNDER A CLASS III RIGHT AS WELL AS
APPRAISAL THEREOF WHEN A PREFERENCE RIGHT SOUGHT TO BE EXERCISED IS
DETERMINED TO BE A CLASS III RIGHT, AS FOLLOWS:
(A) WHEN THE AREA CLAIMED DOES NOT COMPLY WITH THE BOUNDARIES OF THE
LOT SHOWN ON THE PLAT, IT IS NECESSARY TO HAVE A HEARING TO ESTABLISH
THE VALIDITY OF THE RIGHT CLAIMED AND WHETHER IT IS NECESSARY FOR THE
PLAT TO BE CHANGED TO COMPLY WITH THE APPLICATION. THIS MAY REQUIRE
NOTICE TO BE GIVEN TO ADJACENT OCCUPANTS INTERESTED IN THE DIFFERENCE
BETWEEN THE LANDS CLAIMED AND LAND AS SHOWN ON THE PLAT SO THAT ALL
PARTIES IN INTEREST MAY BE HEARD AT THE HEARING.
(B) WHEN APPLICATIONS CONFLICT WITH THE SAME AREA OR PORTIONS
THEREOF, IT SHALL BE NECESSARY TO CONDUCT A HEARING TO DETERMINE THE
FACT AND THE ISSUE IN QUESTION. CONFLICTING CLAIMS WILL BE CAREFULLY
SCRUTINIZED AND EACH DISPUTING PARTY WILL BEAR THE BURDEN OF PROVING
FACTS SUFFICIENT TO ESTABLISH THE VALIDITY OF HIS OR HER CLAIM.
(C) THE PARTY FILING AN APPLICATION CONFLICTING WITH A CLAIM PREVIOUSLY
FILED SHALL BE REQUIRED TO DEPOSIT HEARINGS COSTS IN THE AMOUNT OF ONE
HUNDRED DOLLARS ($100.00). IF THE CONFLICT IS NOT KNOWN AT THE TIME OF
FILING, THE APPLICANT SHALL BE ADVISED OF THE CONFLICT AS SOON AS IT IS
KNOWN AND OF THE NEED TO DEPOSIT THE HEARING COST DEPOSIT.
(D) THE APPLICANT WHO AFTER HEARING AND DETERMINATION BY THE COUNCIL
IS DETERMINED TO HAVE CLAIMED THE LAND OF ANOTHER SHALL BE THE PARTY
TO BEAR THE COST OF THE HEARING. IF SUCH PARTY DID NOT DEPOSIT SUCH
COSTS, NO DEED SHALL BE DELIVERED TO HIM OR HER UNTIL THE COST IS PAID.
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Ordinance No. 3106-2020
WHERE THE DEPOSITOR IS THE PREVAILING PARTY, THE HEARING COST
DEPOSITED SHALL BE REFUNDED TO HIM OR HER BY THE CITY.
(E) WHEN TITLE BY CLASS III PREFERENCE RIGHT IS CLAIMED, THE APPLICANT
SHALL BE REQUIRED TO DEPOSIT THE APPRAISED PURCHASE PRICE AFTER
APPRAISAL HAS BEEN MADE AND THE PURCHASE PRICE HAS BEEN SO
DETERMINED. THE SAME PROCEDURE WILL BE APPLIED WHEN NO APPLICATION
UNDER ANOTHER CLASS OF RIGHT IS SOUGHT BUT IS DETERMINED THAT THE
ONLY AVAILABLE RIGHT TO THE APPLICANT IS A CLASS III RIGHT.
(F) WHEN A PREFERENCE RIGHT IS SOUGHT TO BE EXERCISED OTHER THAN A
CLASS III RIGHT AND SUCH RIGHT IS DETERMINED TO BE A CLASS RIGHT, THEN
THE APPLICANT SHALL BE REQUIRED TO DEPOSIT THE ESTIMATED COST OF
APPRAISING THE PROPERTY CLAIMED.
(G) THE APPLICANT WHO RECEIVES THE DEED FROM THE CITY SHALL AT HIS OR
HER OWN COST BEAR THE COST OF RECORDING THE DEED. This provision applies to
plats that are no longer processed.
11.15.170 PROCEDURES FOR PROCESSING FILED APPLICATIONS.
THE CLERK SHALL CAUSE THE FOLLOWING PROCEDURES TO BE CARRIED OUT:
(A) ALL COPIES OF APPLICATIONS ACCEPTED FOR FILING SHALL BE STAMPED
WITH TIME AND DATE OF FILING AND AN APPLICATION NUMBER IN
CHRONOLOGICAL ORDER OF FILING.
(B) ALL ORIGINAL APPLICATIONS SHALL BE FILED IN A PERMANENT REGISTER AND
THE NAMES OF THE APPLICANTS ENTERED IN AN ALPHABETICAL INDEX WHICH
SHALL BE A PERMANENT PART OF SUCH REGISTER.
(C) THE APPLICATION REGISTER SHALL BE AVAILABLE FOR PUBLIC INSPECTION
DURING OFFICE HOURS OF THE CLERK EXCEPT WHEN IN ACTUAL USE FOR FILING
AND INDEXING.
(D) CERTIFIED COPIES OF ALL APPLICATIONS SHALL BE PREPARED FOR ALL
PERSONS UPON REQUEST UPON THEIR PAYING TWO DOLLARS ($2.00) PER PAGE
FOR COPIES OF SAID APPLICATIONS AND ANY ATTACHMENTS FORMING A PART
THEREOF.
(E) PROCESSING OF DUPLICATE APPLICATIONS. THE THIRD COPY OF THE
APPLICATION WILL BE RETURNED TO THE APPLICANT AS HIS OR HER RECORD AND
AS RECEIPT FOR DEPOSIT MADE, OR MAILED TO APPLICANT IF HE OR SHE HAS
PROVIDED A RETURN ENVELOPE. THE SECOND COPY SHALL BE THE WORKING FILE
COPY TO BE HANDLED AND PROCESSED AS FOLLOWS:
(1) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING
WAIVERS ATTACHED AND WHICH APPLY FOR LANDS WHICH COMPLY WITH THE
PLAT WITH RESPECT TO AREA AND BOUNDARY LOCATIONS SHALL BE
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Ordinance No. 3106-2020
TRANSMITTED TO THE CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC
11.15.190. APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS WHICH
DO NOT HAVE WAIVERS ATTACHED, IRRESPECTIVE OF WHETHER THE LANDS
APPLIED FOR COMPLY WITH THE PLAT SHALL BE SEGREGATED FOR HANDLING
IN THE SAME MANNER AS CLASS II PREFERENCE RIGHT APPLICATIONS.
(2) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING
WAIVERS ATTACHED, AND WHICH CLAIM LANDS WHICH DO NOT COMPLY WITH
THE PLAT WITH RESPECT TO AREA AND BOUNDARY LOCATIONS, SHALL BE
TRANSMITTED TO THE CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC
11.15.190 AND FURTHER PROCESSING AS PROVIDED IN KMC 11.15.220.
(3) APPLICATIONS TO EXERCISE CLASS II PREFERENCE RIGHTS SHALL BE
SEGREGATED AND KEPT WITH CLASS I PREFERENCE RIGHT APPLICATIONS
NOT HAVING WAIVERS ATTACHED. ALL SUCH APPLICATIONS SHALL BE HELD IN
ABEYANCE BY THE CITY UNTIL SUCH TIME AS THE PIERHEAD LINE IS
ESTABLISHED BY THE CORPS OF ENGINEERS, W HEREUPON SUCH
APPLICATIONS SHALL BE PROMPTLY HONORED AND PROCESSED IN THE
MANNER HEREIN DESCRIBED FOR CLASS I PREFERENCE RIGHT
APPLICATIONS, WHERE WAIVERS ARE ATTACHED.
(4) APPLICATIONS TO EXERCISE CLASS III PREFERENCE RIGHTS, AND ALL
APPLICATIONS DETERMINED IN WHOLE OR IN PART TO BE CLASS III, SHALL BE
TRANSMITTED TO THE ASSESSOR FOR APPRAISAL AS PROVIDED IN KMC
11.15.180.
(5) NO APPLICATIONS WHICH COMBINE CLASS I, CLASS II, AND CLASS III, OR
ANY COMBINATION OF SUCH PREFERENCE RIGHTS, WILL BE ACCEPTED FOR
FILING. ANY SUCH APPLICATION PRESENTED FOR FILING SHALL BE RETURNED
TO THE APPLICANT FOR REVISION INTO TWO OR MORE APPLICATIONS, EACH
OF WHICH WILL APPLY FOR LAND UNDER ONLY ONE TYPE OF PREFERENCE
RIGHT.
(6) AN APPLICATION TO EXERCISE ONE CLASS OF PREFERENCE RIGHT WHICH
IN PART COMPLIES WITH THE PLAT WITH RESPECT TO AREA AND BOUNDARY
LOCATIONS, BUT DOES NOT WHOLLY COMPLY WITH THE PLAT IN SUCH
RESPECTS, SHALL BE TREATED AS IF NO PART OF THE APPLICATION SO
COMPLIES WITH THE PLAT AND SHALL BE PROCESSED FOR CONTEST
HEARING. These application are no longer accepted.
11.15.180 APPRAISAL.
ALL APPLICATIONS FOR CLASS II PREFERENCE RIGHTS SHALL BE TRANSMITTED TO A
PROFESSIONAL APPRAISER FOR APPRAISAL. HIS APPRAISAL SHALL BE MADE ON A
FORM PREPARED IN DUPLICATE, THE ORIGINAL OF WHICH SHALL BE ATTACHED TO
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Ordinance No. 3106-2020
THE APPLICATION AND THE DUPLICATE OF WHICH SHALL BE RETAINED FOR HIS
RECORDS. APPLICATIONS WHEN APPRAISED SHALL BE TRANSMITTED TO THE CITY
ENGINEER FOR FURTHER PROCESSING. These application are no longer accepted.
11.15.190 REVIEW BY CITY ENGINEER.
ALL APPLICATIONS BEING READY FOR PROCESSING SHALL BE REVIEWED BY THE CITY
ENGINEER. UPON REVIEW AND COMPARISON WITH THE PLAT, HE SHALL MAKE HIS
REQUEST TO THE HARBOR COMMISSION GIVING A COPY THEREOF TO THE APPLICANT
AS TO WHETHER OR NOT THE APPLICATION SEEKS TO EXERCISE A PREFERENCE
RIGHT TO LAND WHICH IS DESCRIBED ON THE PLAT, AND COMPLIES WITH IT IN
RESPECT TO AREA AND BOUNDARY LOCATIONS. These application are no longer accepted.
11.15.200 RECOMMENDED APPROVAL BY COMMISSION.
THE CITY OF KENAI [ADVISORY HARBOR] PLANNING & ZONING COMMISSION SHALL
REVIEW ALL APPLICATIONS FOR TIDELANDS UPON THE SUBMISSION OF THE CITY
ENGINEER’S REPORT. THE PLANNING & ZONING COMMISSION MAY CONDUCT PUBLIC
HEARINGS TO VERIFY THE VALIDITY OF THE APPLICANT’S CLAIM AND REQUEST
ADDITIONAL EVIDENCE BY WAY OF AFFIDAVITS AND THE LIKE IN ORDER TO COME TO
RECOMMEND SAID CLAIM FOR APPROVAL BY THE CITY COUNCIL NOTIFYING
APPLICANT THEREOF BY MAIL SENT TO THE ADDRESS STATED ON HIS APPLICATION.
THE PLANNING & ZONING COMMISSION MAY PROVIDE A CHECK-OFF LIST TO AID IT IN
CONSIDERING APPLICATIONS. THE CITY COUNCIL SHALL CONSIDER FOR APPROVAL
THE CLAIM OF THE APPLICANT WITHIN THE TIME LIMITATIONS AND W ITH THE RIGHT OF
APPEAL GIVEN PURSUANT TO KMC 11.15.240. These application are no longer accepted.
11.15.210 PROCESSING OF APPROVED APPLICATIONS BY CLERK AND
NOTICE TO PUBLIC.
ALL APPLICATIONS RETURNED TO THE CLERK APPROVED BY THE CITY ENGINEER, AND
APPRAISED BY THE ASSESSOR IF REQUIRED, SHALL BE PROCESSED BY THE CLERK IN
THE FOLLOWING MANNER:
(A) THE CLERK SHALL ASCERTAIN IF THE DEPOSIT MADE BY THE APPLICANT IS
SUFFICIENT TO PAY ALL KNOWN AND ESTIMATED COSTS OF SURVEY, APPRAISAL,
TRANSFER, AND PURCHASE, IF OF CLASS III AND IF NOT, TO ADVISE THE
APPLICANT THAT THE REMINDER DUE SHALL BE DEPOSITED WITH THE CLERK
BEFORE FURTHER PROCESSING.
(B) IF OR WHEN THE DEPOSIT IS SUFFICIENT TO PAY ALL SUCH COSTS, THE CLERK
SHALL CAUSE TO BE PUBLISHED ONCE A WEEK FOR FOUR WEEKS, IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE CITY, THE FOLLOWING:
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(1) NOTICE OF THE NAMES OF THE APPLICANT(S), THE BLOCK AND LOT
NUMBERS OF THE PROPERTY CLAIMED ACCORDING TO PLAT DESIGNATIONS;
(2) THE PREFERENCE RIGHT CLAIMED;
(3) THE IMPROVEMENTS MADE;
(4) THE LENGTH OF TIME (INCLUDING THE DATES) THE APPLICANT OCCUPIED
THE LAND; AND
(C) IF CLASS III ITS APPRAISED VALUE, AND THAT THE CITY WILL ISSUE TO THE
APPLICANT(S) ITS DEED THEREFOR WITHIN THIRTY (30) DAYS AFTER THE LAST
DATE OF PUBLICATION, PROVIDED THAT BEFORE DATE OF LAST PUBLICATION NO
ADVERSE APPLICATION OR CLAIM HAS BEEN FILED WITH THE CITY.
(D) DURING SAID PERIOD OF PUBLICATION, THE APPLICATIONS THEREOF SHALL
BE RETURNED TO THE CITY ENGINEER WHO, AT THE END OF SAID PERIOD OF
PUBLICATION, SHALL NOTE ON THE APPLICATION WHETHER OR NOT ANY ADVERSE
CLAIMS HAVE BEEN FILED FOR THE LAND IN QUESTION.
(E) IF ADVERSE CLAIMS HAVE BEEN FILED, THE APPLICATIONS SHALL BE
FURTHER PROCESSED FOR HEARING. IF NO ADVERSE CLAIMS HAVE BEEN FILED,
THE RESPECTIVE APPLICATIONS SHALL BE RETURNED TO THE CLERK. These
application are no longer accepted.
11.15.220 DEEDS—PERMANENT REGISTER.
THE CLERK SHALL THEN CAUSE TO BE PREPARED A QUIT-CLAIM DEED CONVEYING
SUCH LAND TO THE APPLICANT(S) THAT THE CITY HAS AND TRANSMIT THE QUIT -CLAIM
DEED TO THE MANAGER FOR EXECUTION. NOTICE SHALL THEN BE SENT TO THE
APPLICANT TO TAKE DELIVERY OF SAID DEED AT THE OFFICE OF THE CLERK, WHO
SHALL DELIVER THE SAME TO THE APPLICANT IF ALL REQUIREMENTS HAVE BEEN MET
AND ALL COSTS, INCLUDING PURCHASE PRICE, IF REQUIRED, HAVE BEEN PAID.
DUPLICATE ORIGINALS OF ALL EXECUTED DEEDS SHALL BE KEPT IN THE OFFICE OF
THE CLERK IN A PERMANENT REGISTER ENTITLED “KENAI TIDELANDS DEEDS” WITH
PERMANENT ALPHABETICAL INDEX OF GRANTEES. This process is no longer applicable.
11.15.230 SPECIAL PROCEEDINGS FOR DISPUTED CLAIMS.
THE PLANNING & ZONING COMMISSION SHALL SIT AS A QUASI ADJUDICATORY BODY
TO SET DISPUTES FOR HEARING AND HEAR THE EVIDENCE UNDER OATH OF THE
PARTIES TO THE DISPUTES. PROCEEDINGS SHALL BE INFORMALLY CONDUCTED BUT
TESTIMONY TAKEN UNDER OATH, AND NOTICE OF THE PROCEEDINGS SHALL BE GIVEN
TO THE DISPUTING PARTIES. THEIR OBJECT SHALL BE TO DETERMINE WITHOUT DELAY
THE RESPECTIVE BASIS OF THE CONFLICTING CLAIMS. UPON THE SUBMISSION OF
EACH DISPUTE, THE PLANNING & ZONING COMMISSION SHALL PREPARE A SHORT
SUMMARY ON THE CONFLICTING CLAIMS AND THE EVIDENCE SUBMITTED IN SUPPORT
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Ordinance No. 3106-2020
THEREOF, TOGETHER WITH THEIR WRITTEN FINDINGS OF FACT, AND CONCLUSIONS
OF LAW. This process is no longer applicable.
11.15.240 PROCEEDINGS FOR DETERMINATION BY COUNCIL OF ALL
DISPUTES.
UPON RECEIPT OF THE WORKING FILES IN ALL CASES OF DISPUTES, AND THE
SUMMARY OF THE HEARINGS OFFICER, TOGETHER WITH COPIES OF NOTICES OF
HEARINGS SERVED UPON OR MAILED TO ALL PARTIES TO THE DISPUTE, THE COUNCIL
SHALL SET THE DISPUTE OF HEARING AND DETERMINATION, AND CAUSE NOTICE TO
BE SERVED ON ALL PARTIES. UPON THE COUNCIL HAVING HEARD THE DISPUTE IT
SHALL ENTER ITS RULING THEREON AS QUICKLY AS POSSIBLE, BUT NOT LATER THAN
TEN (10) DAYS AFTER THE MATTER IS SUBMITTED. AGGRIEVED PERSONS SHALL HAVE
THE RIGHT OF APPEAL TO THE SUPERIOR COURT, WITHIN THIRTY (30) DAYS AFTER
THE RULING OF THE COUNCIL IS RENDERED. This process is no longer applicable.
11.15.250 DETERMINATION UPON STIPULATION OF FACTS.
WHEREVER POSSIBLE, TO REACH AGREEMENT OF THE PARTIES AT HEARINGS
BEFORE THE PLANNING & ZONING COMMISSION, A STIPULATION OF FACTS SHALL BE
PREPARED AND AGREED UPON BY THE PARTIES. WHERE THIS IS DONE, THE PLANNING
& ZONING COMMISSION SHALL PREPARE AND ATTACH ITS CONCLUSIONS OF LAW AND
SUBMIT THE FILE TO THE CITY ENGINEER TO DETERMINE IF THE CITY’S INTERESTS
ARE AFFECTED BY THE STIPULATION, OR IF A BOUNDARY CHANGE IS REQUIRED AND
NO THIRD PARTY OR CITY INTERESTS ARE AFFECTED ADVERSELY BY THE PROPOSED
CHANGE IN BOUNDARIES OF LOTS SHOWN ON THE PLAT, UPON APPROVAL OF THE
COUNCIL THE PLAT SHALL BE DIRECTED TO BE CHANGED. SHOULD IT BE DETERMINED
BY THE CITY ENGINEER THAT THE STIPULATION ADVERSELY AFFECTS THE INTEREST
OF THE CITY OR THOSE OF THIRD PARTIES, THE DISPUTE SHALL BE RETURNED TO THE
PLANNING & ZONING COMMISSION FOR FURTHER PROCEEDINGS UPON NOTICE GIVEN.
This process is no longer applicable.
11.15.260 REJECTION OF PROTESTS OTHER THAN BY APPLICANT.
NO OBJECTIONS WILL BE RECEIVED TO PROPOSED ISSUANCE BY DEED BY THE CITY
ON PUBLICATION OF NOTICE THEREOF, NOR WILL ANY PERSON BE PERMITTED TO
APPEAR AND BE HEARD AT ANY HEARING OF A DISPUTE BEFORE THE PLANNING &
ZONING COMMISSION OR THE COUNCIL, UNLESS SUCH OBJECTOR OR PERSON IS AN
APPLICANT FOR PREFERENCE RIGHTS OF CLASS I OR II AND HAS FILED AN
APPLICATION WITH THE CLERK. THE FOREGOING SHALL NOT PREVENT THE
APPEARANCES BEFORE THE PLANNING & ZONING COMMISSION OR COUNCIL OF
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Ordinance No. 3106-2020
WITNESSES APPEARING ON BEHALF OF THE PARTIES IN DISPUTE OR PERSONS
CALLED BY THE PLANNING & ZONING COMMISSION OR COUNCIL WHO MAY HAVE
PERSONAL KNOWLEDGE CONCERNING THE VERIFICATION OF CLAIMS. (ORD. 455-78)
this process is no longer applicable.
11.15.270 HANDLING OF DEPOSIT AND PURCHASE FUNDS.
(A) ALL FUNDS RECEIVED AS DEPOSITS WITH APPLICATIONS FOR COSTS OR
PURCHASE PRICE FOR TIDELANDS SHALL BE DEPOSITED BY THE FINANCE
DIRECTOR IN THE GENERAL FUND. SUCH DEPOSITS WILL BE CREDITED BY THE
FINANCE DIRECTOR AS FOLLOWS:
(1) SURVEY COSTS - AS A CREDIT TO DISBURSEMENTS MADE BY THE CITY
FOR COSTS OF PREPARING THE TIDELANDS SUBDIVISION PLAT.
(2) TRANSFER COSTS - TO ADMINISTRATIVE COSTS AS DEEDS ARE ISSUED.
(3) APPRAISAL COSTS - TO ADMINISTRATIVE COSTS AS EARNED, OR AS
CREDIT TO APPRAISAL COSTS INCURRED.
(B) PURCHASE COSTS OF CLASS II LANDS—SHALL BE CREDITED TO A SEPARATE
ACCOUNT IN THE GENERAL FUND TO PAY FOR IMPROVEMENTS IN TIDELANDS
AREAS CONSISTING OF FILL, STREET, SIDEWALK, AND SEWER IMPROVEMENTS.
This process is no longer applicable.
11.15.280 FORFEITURE OF PREFERENCE RIGHTS.
ANY OCCUPANT, OWNER, OR HOLDER OF PREFERENCE RIGHTS AS HEREIN DEFINED,
WHO HAS NOT APPLIED TO THE CITY FOR TITLE THERETO AS HEREIN PROVIDED, ON
OR BEFORE TWO (2) YEARS AFTER THE DATE APPLICATIONS TO EXERCISE
PREFERENCE RIGHTS WILL BE ACCEPTED FOR FILING BY THE CITY UNDER THIS
ORDINANCE, BY A PROPERLY COMPLETED APPLICATION DULY FILED WITH THE CLERK
AND ACCOMPANIED BY THE REQUIRED DEPOSIT, SHALL HAVE FORFEITED HIS RIGHT
TO ASSERT THIS PREFERENCE RIGHTS AND ACQUIRE TITLE TO TIDELANDS SUBJECT
THERETO FROM THE CITY; AND SUCH TIDELANDS AND CONTIGUOUS SUBMERGED
LANDS SUBJECT TO SUCH UNUSED PREFERENCE RIGHTS SHALL THEREAFTER BE
FREE AND CLEAR OF ALL CLAIMS TO PREFERENCE RIGHTS AND THE CITY SHALL HAVE
NO OBLIGATION TO CONVEY THE SAME TO ANY PERSON OR PERSONS WHOSOEVER,
AND SAID LAND SHALL THEN BE AND REMAIN THE PROPERTY OF THE CITY AND BE
SUBJECT TO SUCH DISPOSITION AS PROVIDED FOR BY LAW OR ORDINANCE. This
process is no longer applicable.
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Ordinance No. 3106-2020
11.15.290 FORMS.
THE CLERK SHALL CAUSE TO BE PRINTED APPLICATION FORMS AND OTHER FORMS
FOR USE IN PROCESSING THE SAME IN SUBSTANTIALLY THE FOLLOWING FORM:
(A)
APPLICATION FOR TIDELAND
PREFERENCE RIGHTS
NAME _______________________ APPLICATION NO. __________
HOME ADDRESS
POST OFFICE ADDRESS
MARK X TO DESIGNATE NATURE OF PREFERENCE RIGHT CLAIMED:
CLASS I___________________________________
CLASS II___________________________________
CLASS III___________________________________
DOES THE TIDELAND PLAT 272 CORRECTLY SHOW THE LAND APPLIED
FOR:
YES ____ NO ____
IF TIDELAND PLAT DOES NOT CORRECTLY SHOW LAND APPLIED FOR,
DESCRIBE IT BY METES AND BOUNDS AND ATTACHED PLAT OF LAND
APPLIED FOR (USE ATTACHMENT IF MORE SPACE IS REQUIRED).
ALL CLAIMED IMPROVEMENTS WERE FIRST CONSTRUCTED AND USED (1)
BEFORE SEPTEMBER 7, 1957? (2) BEFORE SEPTEMBER 7, 1957 AND
JANUARY 3, 1969? (3) AFTER JANUARY 3, 1959?
IS ANY PART OF YOUR CLAIM BASED ON IMPROVEMENTS AND/OR FILL
CONSTRUCTED OR PLACED AFTER JANUARY 3, 1959?
YES ______,
NO ______. IF ANSWER IS “YES,” DESCRIBE AREA IMPROVED AFTER
JANUARY 3, 1959 (USE ATTACHMENT IF MORE SPACE IS NEEDED), AND
STATE NATURE OF IMPROVEMENTS.
HAVE ANY OF THESE IMPROVEMENTS BEEN EXTENDED OR IMPROVED
AFTER (1) SEPTEMBER 7, 1957? (2) JANUARY 3, 1959? DESCRIBE.
WAS THIS BENEFICIAL USE CONTINUED THROUGH JANUARY 3, 1959?
DESCRIBE.
THE PLAT IS BASED ON APPARENT USE AND IMPROVEMENTS EXISTING
ON JANUARY 3, 1959, RECOGNIZED BY THE ALASKA LAND ACT; STATE ANY
REASON KNOWN TO YOU WHY YOUR CLAIM DOES NOT CORRESPOND
WITH THE PLAT. (USE ATTACHMENT IF MORE SPACE IS REQUIRED.)
I OFFER CASH ____________, MONEY ORDER _____________, CASHIER’S
CHECK _____________, IN THE AMOUNT OF $ _____________AS DEPOSIT
FOR THE FOLLOWING COSTS:
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Ordinance No. 3106-2020
USE BY CLERK
FILING FEE $__________ $__________
SURVEY COSTS (AT RATE OF
____/SQ. FT.)
$__________ $__________
APPRAISAL COSTS (CLASS II
APPLICATIONS)
$__________ $__________
TRANSFER COSTS ($ ________) $__________ $__________
HEARING COSTS (IF CLAIM ADVERSE
TO PRIOR APPLICATION A DEPOSIT
OF $ __________ FOR HEARING AND
SERVICE NOTICE IS REQUIRED.)
$__________ $__________
TOTAL DEPOSIT (DOES NOT INCLUDE
PURCHASE PRICE OF LAND IN CLASS
II APPLICATIONS)
$__________ $__________
DEPOSIT RECEIVED BY CITY BY: ____________________________________
DATE OF APPLICATION: ____________________________________
DATE APPLICATION RECEIVED BY
CITY:
____________________________________
TIME FILED: ____________________________________
CERTIFICATION
I, ____________________ , THE ABOVE-NAMED APPLICANT, OR ITS AGENT,
HEREBY CERTIFIES THAT ALL OF THE STATEMENTS MADE IN THE
APPLICATION AND INCORPORATED ATTACHMENTS, IF ANY, ARE TRUE
AND CORRECT.
PRINT NAME(S)
SIGNATURE(S)
(B)
ASSESSOR’S APPRAISAL
THE UNDERSIGNED APPRAISER(S) DO HEREBY CERTIFY THAT HE HAS
DULY APPRAISED THE TIDE AND/OR SUBMERGED LAND DESCRIBED IN
THE ATTACHED APPLICATION NO. _____________ OF ____________,
WITHOUT INCLUDING IN THE HEREINAFTER STATED VALUE ANY VALUE
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Ordinance No. 3106-2020
FOR VALUABLE IMPROVEMENTS CONSTRUCTED OR PLACED HEREON
PRIOR TO JANUARY 3, 1959, AT THE FAIR MARKET VALUE.
TIDELAND __________ SQ. FT. AT $ _____________ PER SQ. FT., $
____________.
DATED, AT KENAI, ALASKA, THIS __________ DAY OF ___________, 19 ____.
SIGNED:
(C)
WAIVER OF CLASS II PREFERENCE RIGHTS
(ATTACH TO EACH CLASS I APPLICATION)
I, _______________, THE APPLICANT, OR HIS AUTHORIZED AGENT, IN THE
APPLICATION FOR TIDELAND PREFERENCE RIGHTS, APPLICATION NO.
_______________, TO WHICH THIS WAIVER IS ATTACHED, DO HEREBY
WAIVE ANY AND ALL PREFERENCE RIGHTS, TO ACQUIRE TIDE OR
SUBMERGED AND LYING SEAWARD OF THE CITY OF KENAI, TO WHICH I
AM NOW OR MAY HEREAFTER BECOME ENTITLED BY REASON OF THE
PROVISIONS OF PUBLIC LAW 85-303.
DATED, AT KENAI, ALASKA, THIS ___________ DAY OF _____________, 19
____.
(PRINT NAME)
(SIGNATURE)
(D)
CITY OF KENAI, ALASKA
TIDELAND QUIT-CLAIM DEED
THIS DEED, MADE IN DUPLICATE THIS __________ DAY OF ______________,
19 ____, BY AND BETWEEN THE CITY OF KENAI, ALASKA, GRANTOR, AND
________________, GRANTEE(S).
W I T N E S S E T H:
THAT THE SAID GRANTOR, FOR AND IN CONSIDERATION OF THE SUM OF
ONE AND NO 100/THS ($1.00) DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDERATION, TO IT IN HAND PAID BY THE SAID GRANTEE(S),
PURSUANT TO THE PROVISIONS OF THE ALASKA LAND ACT (CHAPTER
169, SLA 1959) AND ORDINANCE NO. 455-78, ENACTED ON JANUARY 3,
1979, PURSUANT THERETO, DOES HEREBY CONVEYS, QUIT CLAIMS, AND
CONFIRMS UNTO SAID GRANTEE(S) AS TENANTS BY THE ENTIRETY, WITH
THE RIGHT OF SURVIVORSHIP (STRIKE IF GRANTEES ARE NOT HUSBAND
AND WIFE), AND TO HIS (THEIR) HEIRS AND ASSIGNS (STRIKE IF GRANTEE
A CORPORATION) AND TO ITS SUCCESSORS AND ASSIGNS (STRIKE IF
GRANTEE NOT A CORPORATION), ALL SUCH INTEREST AS THE GRANTOR
HAS, IF ANY, IN THE FOLLOWING DESCRIBED LOT, PIECE, PARCEL AND
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Ordinance No. 3106-2020
TRACT OF TIDELAND AND CONTIGUOUS SUBMERGED LAND SITUATED
WITHIN THE CORPORATE LIMITS OF THE CITY OF KENAI, ALASKA, AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT:
ALL OF LOT ________, BLOCK __________, ACCORDING TO THE OFFICIAL
TIDELANDS SUBDIVISION PLAT OF THE CITY OF KENAI, ALASKA.
TOGETHER WITH ALL AND SINGULAR THE TENEMENTS, HEREDITAMENTS
AND APPURTENANCES THEREUNTO BELONGING OR IN ANYWISE
APPERTAINING.
TO HAVE AND TO HOLD THE SAME UNTO THE SAID GRANTEE(S), HIS OR
THEIR HEIRS AND ASSIGNS, (OR) TO ITS SUCCESSORS AND ASSIGNS,
FOREVER.
IN WITNESS WHEREOF, THE GRANTOR HAS CAUSED THIS DEED TO BE
EXECUTED THE DAY AND YEAR HEREINABOVE FIRST WRITTEN.
CORPORATE SEAL CITY OF KENAI, ALASKA
_________________
BY: (ITS MANAGER)
ATTEST:
_________________
CLERK
] This process is no longer applicable.
Chapter 11.20
LEASING OF TIDELANDS
Sections:
[11.20.010 POLICY.]
11.20.020 Lands [A]Available for [L]Leasing.
[11.20.030 QUALIFICATIONS OF APPLICANTS.
11.20.040 CLASSIFICATION PRIOR TO LEASE REQUIRED.
11.20.050 APPLICATIONS.
11.20.060 RIGHTS PRIOR TO LEASING.
11.20.070 PROCEDURE.
11.20.080 PUBLIC NOTICE—PUBLIC HEARING.
11.20.090 SELECTION OF APPLICANT.
11.20.100 APPEAL.
11.20.110 APPRAISAL AND SURVEY OF LEASED LANDS.
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11.20.120 THE LEASE DOCUMENT—TERMS.
11.20.130 APPRAISAL.
11.20.140 REVIEW.
11.20.150 ANNUAL MINIMUM RENTAL.
11.20.160 PRINCIPLES AND POLICY OF LEASE RATES.
11.20.170 RESPONSIBILITY TO PROPERLY LOCATE.
11.20.180 LEASE UTILIZATION.
11.20.190 SUBLEASING.
11.20.200 ASSIGNMENTS.
11.20.210 MODIFICATION.
11.20.220 CANCELLATION—FORFEITURE.
11.20.230 DEFAULT—RIGHT OF ENTRY.
11.20.240 NOTICE OR DEMAND.
11.20.250 FINANCING—RIGHTS OF MORTGAGES OR LIENHOLDER.
11.20.260 ENTRY AND RE-ENTRY.
11.20.270 RE-LEASE.
11.20.280 FORFEITURE OF RENTAL.
11.20.290 RIGHT OF INSPECTION.
11.20.300 EASEMENT GRANTS RESERVED.
11.20.310 LEASE SUBORDINATE TO FINANCING REQUIREMENTS.
11.20.320 WRITTEN WAIVER.
11.20.330 SURRENDER ON TERMINATION.
11.20.340 SANITATION.
11.20.350 BUILDING AND ZONING CODES.
11.20.360 RULES.
11.20.370 AIRCRAF T OPERATIONS PROTECTED.
11.20.380 RIGHT TO ENJOYMENT AND PEACEABLE POSSESSION.
11.20.390 LESSEE TO PAY TAXES.
11.20.400 NO PARTNERSHIP OR JOINT VENTURE CREATED.
11.20.410 DEFAULT BANKRUPTCY.
11.20.420 NONDISCRIMINATION.
11.20.430 PARTIAL INVALIDITY.
11.20.440 PAROLE MODIFICATIONS.
11.20.450 AMENDMENT OF LEASE.
11.20.460 COMPLIANCE WITH LAWS.
11.20.470 CARE OF PREMISES.
11.20.480 LESSEE’S OBLIGATION TO REMOVE LIENS.
11.20.490 CONDEMNATION.
11.20.500 PROTECTION OF SUBTENANTS.
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Ordinance No. 3106-2020
11.20.510 SUCCESSORS IN INTEREST.
11.20.520 GOVERNING LAW.
11.20.530 NOTICES.
11.20.540 FIRE PROTECTION.
11.20.550 INSPECTION.
11.20.560 PERSONAL USE OF MATERIALS.
11.20.570 RESTRICTIONS AND RESERVATIONS.
11.20.580 WASTE AND INJURY TO LAND.
11.20.590 WARRANT Y.
11.20.600 APPROVAL OF OTHER AUTHORITIES.
11.20.610 TITLE RESTRICTIONS.
11.20.620 INSURANCE—HOLD HARMLESS.
11.20.630 INSURANCE OF USERS—SUBTENANTS.
11.20.640 ANNUAL REPORT.]
11.20.650 Tidelands [C]Claims.
11.20.660 Subjection to [H]Harbor [O]Ordinance.
[11.20.670 ARBITRATION.]
11.20.680 Provisions [R]Regulating [P]Public [U]se [P]Purpose.
11.20.690 Provision to be [I]Included in [P]Public [U]Use [L]Lease.
11.20.700 Public [U]Use: [D]Defined.
11.20.710 Controlled [A]Access.
11.20.720 Use [C]Charges.
[11.20.730 MAINTEN ANCE OF DOCK.
11.20.740 MODIFICATIONS OF EXISTING LEASES.
11.20.750 UNAUTHORIZED REMOVAL OF MATERIAL PROHIBITED.
11.20.760 REMOVAL NOT AUTHORIZED BY LEASE.
11.20.770 DISPOSITION OF RIGHTS BY COUNCIL.]
11.20.780 Penalties.
11.20.790 Tideland [L]Leases for [S]Shore [F]Fisheries.
[11.20.010 POLICY.
THE CITY, IN ORDER TO MAKE SITES AVAILABLE FOR BENEFICIAL INDUSTRIES, MAY
LEASE CITY-OWNED TIDELANDS TO PERSONS WHO AGREE TO OPERATE A BENEFICIAL
INDUSTRY UPON THE TERMS AND CONDITIONS THE COUNCIL CONSIDERS
ADVANTAGEOUS TO THE CITY.] The new general fund land code provides that lands can be
leased to encourage responsible growth and development to support a thriving business,
residential, recreational and cultural community. The Policy statement above does not add
anything different and should be removed. Additionally, specific parcels require specific industries
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Ordinance No. 3106-2020
per the conveyance documents to the City (i.e. public docking, maritime commerce, etc.) and
these limitations are carried forward in the City’s land management plan.
11.20.020 Lands [A]Available for [L]Leasing. (House Keeping)
All classified tide and contiguous submerged land within the limits of the City to which the City
holds title may be leased [AS HEREINAFTER PROVIDED,] for surface use only, and under the
condition that said lease is subject and inferior to preference right claims [THAT MAY BE MADE
WITHIN A TWO (2) YEAR FILING PERIOD FOR PREFERENCE RIGHTS] and subject to the
rights of existing set net site holders within the City limits. This should stay in as amended for the
benefit of preference right holders and set net site holders, as it is not retained elsewhere in code.
[11.20.030 QUALIFICATIONS OF APPLICANTS.
AN APPLICANT FOR A LEASE IS QUALIFIED IF THE APPLICANT:
(A) IS AN INDIVIDUAL AT LEAST NINETEEN (19) YEARS OF AGE OR OVER; OR
(B) IS A GROUP, ASSOCIATION, OR CORPORATION WHICH IS AUTHORIZED TO
CONDUCT BUSINESS UNDER THE LAWS OF ALASKA.] Qualifications for applicants for
leases is provided in KMC 22.05.020.
[11.20.040 CLASSIFICATION PRIOR TO LEASE REQUIRED.
BEFORE ACCEPTING APPLICATIONS TO LEASE TIDELANDS, THE AREA INVOLVED
SHALL HAVE FIRST BEEN CLASSIFIED FOR LEASING BY THE CITY COUNCIL WITH THE
APPROVAL OF THE PLANNING AND HARBOR COMMISSIONS, AND THEIR AVAILABILITY
ADVERTISED IN A NEWSPAPER OF GENERAL CIRCULATION IN THE AREA ONCE EACH
WEEK FOR TWO (2) SUCCESSIVE WEEKS NOT LESS THAN THIRTY (30) DAYS PRIOR TO
THE TIME SET FOR THE CLOSING OF THE ACCEPTANCE OF APPLICATIONS, AND THAT
ALL APPLICATIONS ARE AVAILABLE FOR PUBLIC INSPECTION AT THE CITY HALL
OFFICES.] This is now covered in KMC 22.05.015 and 22.05.040 regarding classification and
advertising.
[11.20.050 APPLICATIONS.
(A) ALL APPLICATIONS FOR LEASE OF TIDELANDS SHALL BE FILED WITH THE
CLERK ON FORMS PROVIDED BY HIM OR HER AND AVAILABLE AT CITY HALL WHICH
SHALL UPON EXECUTION OF THE LEASE BECOME PART OF THE LEASE DOCUMENT.
ONLY FORMS COMPLETED IN FULL AND ACCOMPANIED BY A FILING FEE AS SET
FORTH IN THE CITY’S SCHEDULE OF FEES ADOPTED BY THE CITY COUNCIL WILL
BE ACCEPTED FOR FILING. FILING FEES ARE NOT REFUNDABLE.
(B) WITH EVERY APPLICATION, THE APPLICANT SHALL SUBMIT A DEVELOPMENT
PLAN SHOWING AND STATING:
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Ordinance No. 3106-2020
(1) THE PURPOSE OF THE PROPOSED LEASE;
(2) THE USE, VALUE, AND NATURE OF IMPROVEMENTS TO BE CONSTRUCTED;
(3) THE TYPE OF CONSTRUCTION;
(4) DATES CONSTRUCTION IS ESTIMATED TO COMMENCE AND BE
COMPLETED;
(5) WHETHER INTENDED USE COMPLIES WITH THE ZONING ORDINANCE AND
COMPREHENSIVE PLAN OF THE CITY;
(6) DESCRIBE BY REFERENCE TO THE PLAT THE AREA TO BE LEASED;
(7) A DETAILED FINANCIAL PLAN SHOWING ABILITY TO CARRY THROUGH WITH
THE DEVELOPMENT PLAN;
(8) A PERFORMANCE BOND OF FIVE PERCENT (5%) OF THE PROJECT’S
ESTIMATED COST (WHICH BOND SHALL NOT EXCEED FIFTY THOUSAND
DOLLARS ($50,000.00)), PAYABLE TO THE CITY. Lease applications are now covered
in 22.05.025.
11.20.060 RIGHTS PRIOR TO LEASING.
NEITHER THE FILING OF AN APPLICATION FOR A LEASE NOR THE HOLDING OF A PUBLIC
HEARING THEREON AS PROVIDED BELOW, SHALL GIVE THE APPLICANT A RIGHT TO A
LEASE OR TO THE USE OF THE LAND APPLIED FOR. ANY USE NOT AUTHORIZED BY A
LEASE SHALL CONSTITUTE A TRESPASS AGAINST THE CITY. This is now provided for in
22.05.035.
11.20.070 PROCEDURE.
(A) PLANNING AND ZONING COMMISSION. ALL LEASE APPLICATIONS SHALL BE
REVIEWED FIRST BY THE CITY OF KENAI PLANNING AND ZONING COMMISSION TO
DETERMINE WHETHER THE CONTEMPLATED USE FALLS WITHIN THAT PERMITTED
UNDER THE ZONING ORDINANCE.
(B) HARBOR COMMISSION. ALL LEASE APPLICATIONS SHALL BE REVIEWED BY THE
HARBOR COMMISSION. IF THE COMMISSION AFTER CONSIDERING THE LEASE
APPLICATIONS DETERMINES AT A PUBLIC HEARING AS SET FORTH IN THE SECTION
BELOW THAT ANY ONE LEASE WILL BE IN THE BEST INTERESTS OF THE CITY OF
KENAI, THE COMMISSION MAY MAKE A RECOMMENDATION TO THE CITY COUNCIL
OF APPLICANT ALONG WITH ANY MODIFICATIONS OR CONDITIONS RECOMMENDED
BY THE COMMISSION.
(C) CITY COUNCIL. THE CITY COUNCIL SHALL MAKE THE FINAL DETERMINATION
OF THE SELECTION OF THE APPLICANT BASED UPON THE COMMISSION’S
RECOMMENDATION AND APPROVE OR REJECT THE CHOICE OF APPLICATION
MADE. This is now covered in 22.05.040.
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11.20.080 PUBLIC NOTICE—PUBLIC HEARING.
NOTICE OF THE LEASE APPLICATION SHALL BE PUBLISHED IN A NEWSPAPER OF
GENERAL CIRCULATION WITHIN THE CITY NOT LESS THAN TEN (10) OR MORE THAN
THIRTY (30) DAYS PRIOR TO THE DATE OF PUBLIC HEARING. THE NOTICE MUST
CONTAIN THE NAME OF THE APPLICANT, A BRIEF DESCRIPTION OF THE LAND,
PROPOSED USE, TERM, AND A DECLARATION THAT THE COMMISSION WILL CONSIDER
THE LEASE TO THE APPLICANT ON THE BASIS OF THE APPLICANT’S AGREEMENT TO
OPERATE A BENEFICIAL INDUSTRY UPON THE TERMS AND CONDITIONS AS SET FORTH
IN ITS APPLICATION WHICH IS AVAILABLE FOR PUBLIC INSPECTION AT THE CITY HALL
OFFICES. THE NOTICE SHALL STATE THE DATE UPON WHICH PUBLIC HEARING WILL BE
HELD BEFORE THE COMMISSION FOR CONSIDERATION OF THE APPLICATION. The
current process provides for review by relevant commissions and a public hearing before council
which is publicly noticed. See 22.05.040.
11.20.090 SELECTION OF APPLICANT.
AFTER THE HEARING PROVIDED IN KMC 11.20.080 ABOVE, THE COMMISSION MAY MAKE
ITS RECOMMENDATION OF THE APPLICANT TO THE CITY COUNCIL IF IN THE
COMMISSION’S OPINION, ON THE BASIS OF ALL THE TESTIMONY PRESENTED, THE
AWARD OF THE PROSPECTIVE LEASE WILL BE ADVANTAGEOUS TO THE CITY AND IN
THE BEST INTERESTS OF THE PUBLIC WELFARE, HEALTH, AND SAFETY. IN THE
ALTERNATIVE, THE COMMISSION MAY ELECT TO MAKE NO RECOMMENDATION FOR
ANY APPLICANT GIVING ITS REASONS THEREFOR. THE COMMISSION MAY IMPOSE
ADDITIONAL CONDITIONS UPON THE APPLICANT BEFORE MAKING ITS AWARD. THE
DECISION OF THE COUNCIL SHALL BE POSTED ON THE CITY BULLETIN BOARD THE DAY
AFTER THE HEARING AND REMAIN POSTED FOR TEN (10) DAYS. KMC 22.05.050 now
addresses competing lease applications.
11.20.100 APPEAL.
ANY PERSON DISAGREEING WITH THE DECISION OF THE COUNCIL MAY APPEAL THE
DECISION BY FILING SUIT IN THE SUPERIOR COURT, THIRD JUDICIAL DISTRICT AT
KENAI, WITHIN TEN (10) DAYS FROM THE DATE OF THE POSTING OF COUNCIL’S
DECISION. This is not set up as an appealable decision in the new code provisions.
11.20.110 APPRAISAL AND SURVEY OF LEASED LANDS.
THE APPLICANT WILL FURNISH A SURVEY AND APPRAISAL OF THE LAND IN QUESTION
PRIOR TO LEASING. ANY RESURVEYING OR RE-PLATTING REQUIRED WILL BE THE
APPLICANT’S RESPONSIBILITY AND EXPENSE. Appraisals and surveys are provided for
throughout title 22.
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11.20.120 THE LEASE DOCUMENT—TERMS.
LEASES MAY BE ISSUED FOR A TERM OF NOT LESS THAN TWO (2) YEARS NOR MORE
THAN [NINETY-NINE (99)] FORTY-FIVE (45) YEARS. THE APPLICANT SHALL STATE IN HIS
OR HER APPLICATION THE TERM DESIRED. IN DETERMINING WHETHER TO GRANT A
LEASE FOR THE REQUESTED TERM, THE COUNCIL SHALL CONSIDER THE NATURE,
EXTENT, AND COST OF THE IMPROVEMENTS WHICH THE APPLICANT AGREES TO
CONSTRUCT THEREON AS A CONDITION OF THE LEASE THE TIME REQUIRED TO
AMORTIZE THE PROPOSED INVESTMENT, THE VALUE OF THE APPLICANT’S PROPOSED
USE TO THE ECONOMY OF THE CITY AND OTHER RELEVANT FACTORS. THE TERM OF
THE LEASE MAY BE EXTENDED FOR A NUMBER OF SUCCESSIVE PERIODS FOR A SET
NUMBER OF YEARS EACH AS LONG AS THE APPROPRIATE EXTENSIONS AND ORIGINAL
TERM DO NOT EXCEED 99 YEARS. Lease terms are now addressed in 22.05.055
11.20.130 APPRAISAL.
NO LAND SHALL BE LEASED, OR A RENEWAL LEASE ISSUED, UNLESS THE SAME HAS
BEEN APPRAISED WITHIN A [SIX] TWELVE MONTH PERIOD PRIOR TO THE DATE FIXED
FOR BEGINNING OF THE TERM OF THE LEASE OR RENEWAL LEASE. NO LAND SHALL BE
LEASED FOR LESS THAN THE APPROVED, APPRAISED ANNUAL RENTAL, ACCORDING
TO THE METHOD AS DESCRIBED IN SECTION 11.20.150 BELOW , EXCEPT TO STATE OR
FEDERAL AGENCIES OR THEIR SUBDIVISIONS IF IT IS IN THE PUBLIC INTEREST TO DO
SO. APPRAISALS SHALL REFLECT THE NUMBER AND VALUE OF CITY SERVICES
RENDERED THE LAND IN QUESTION. Appraisals are now addressed in 22.05.050.
11.20.140 REVIEW.
NO LEASED LAND MAY BE CHANGED IN USE, NOR MAY ANY RENEWAL LEASE BE ISSUED
UNTIL THE PROPOSED USE OR RENEWAL HAS BEEN REVIEWED BY THE PLANNING
COMMISSION AND APPROVED BY THE COUNCIL. This is now provided for in 22.05.040 and
22.05.045.
11.20.150 ANNUAL MINIMUM RENTAL.
(A) ANNUAL MINIMUM RENTALS SHALL BE COMPUTED FROM THE APPROVED
APPRAISED MARKET VALUE UTILIZING THE METHOD AS DESCRIBED IN KMC
11.20.160(A). ANNUAL MINIMUM RENTAL SHALL INCLUDE:
(1) TAXES PERTAINING TO THE LEASEHOLD INTEREST OF THE LESSEE.
(2) SALES TAX NOW ENFORCED OR LEVIED IN THE FUTURE COMPUTED UPON
RENT PAYABLE IN MONTHLY INSTALLMENTS WHETHER RENT IS PAID ON A
MONTHLY OR YEARLY BASIS.
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(3) ALL TAXES AND ASSESSMENTS LEVIED IN THE FUTURE BY THE CITY OF
KENAI, AS IF LESSEE WAS CONSIDERED THE LEGAL OWNER OF RECORD OF
THE LEASED PROPERTY.
(4) INTEREST AT THE RATE OF EIGHT PERCENT (8%) PER ANNUM AND TEN
PERCENT (10%) PENALTIES OF ANY AMOUNT OF MONEY OWED UNDER THIS
LEASE WHICH IS NOT PAID ON OR BEFORE THE DATE IT BECOMES DUE.
(5) ALL SALES TAXES DUE ON PAYMENTS UNDER THIS LEASE AND TO ALL
SALES TAXES APPLICABLE TO ITS OPERATIONS.
(6) ALL SPECIAL ASSESSMENTS FOR PUBLIC IMPROVEMENTS LEVIED BY THE
CITY OF KENAI, AS IF LESSEE WERE CONSIDERED LEGAL OWNER OF LEASED
PROPERTY.
(B) UPON EXECUTION OF THE LEASE THE LANDS DEMISED BECOME TAXABLE TO
THE EXTENT OF ITS LEASEHOLD INTEREST AND LESSEE SHALL PAY ALL REAL
PROPERTY TAXES LEVIED UPON SUCH LEASEHOLD INTEREST IN THESE LANDS,
THAT THE CITY AS PART OF THE CONSIDERATION OF RENTAL PAYMENTS DEPENDS
AND RELIES UPON THE PAYMENT BY THE LESSEE OF SAID ASSESSMENTS AND
TAXES AS IF HE WERE THE OWNER OF SAID DEMISED LAND.
(C) RENT SHALL BE PAID ANNUALLY IN ADVANCE. SAID PAYMENTS SHALL BE
PRORATED TO CONFORM WITH THE CITY OF KENAI’S FISCAL YEAR BEGINNING
JULY 1 AND ENDING JUNE 30. IF THE EQUIVALENT MONTHLY PAYMENT EXCEEDS
$200, THEN THE LESSEE SHALL HAVE THE OPTION OF MAKING PAYMENTS ON A
MONTHLY OR QUARTERLY BASIS. This is now covered in 22.05.060.
11.20.160 PRINCIPLES AND POLICY OF LEASE RATES.
(A) TO INSURE A FAIR RETURN, ALL LEASES FOR A PERIOD IN EXCESS OF FIVE (5)
YEARS SHALL INCLUDE A REDETERMINATION CLAUSE AS OF THE FIFTH
ANNIVERSARY OF EACH LEASE, NORMALLY SET FOR THE FIRST OF JULY OF THAT
FIFTH YEAR. IN PURSUING A FAIR RETURN, ALL LANDS FOR LEASE SHALL BE
APPRAISED PRIOR TO LEASE AND AGAIN PRIOR TO REDETERMINATION.
THEREFORE, LEASE RATES SHALL BE BASED ON:
(1) FAIR MARKET VALUE OF THE LAND, INCLUDING AN APPROPRIATE
CONSIDERATION OF FACILITIES AND SERVICES AVAILABLE (PUBLIC WATER,
PUBLIC SEWER, STORM SEWERS, AND OTHER PUBLIC UTILITIES) AS
DETERMINED BY A QUALIFIED INDEPENDENT APPRAISER, CONSIDERING THE
BEST USE OF THE SPECIFIC LAND.
(2) THE ACTUAL RATE OF RETURN DETERMINED TO BE A FAIR RETURN TO THE
CITY SHALL BE SET AT SIX PERCENT (6%) OF FAIR MARKET VALUE. THE
APPRAISAL SHALL NOT INCLUDE STRUCTURAL IMPROVEMENTS MADE TO THE
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LAND OR IMPROVEMENTS MADE BY WAY OF GRAVEL OR OTHER APPROVED
FILL PLACED ON THE LAND. (ORD. 1631-95)
(B) REALIZING THAT INVESTORS, DEVELOPERS, AND OTHER POTENTIAL LESSEES
NEED A REASONABLE ASSURANCE OF STABILITY IN FUTURE LEASE RATES, THE
REDETERMINATION CLAUSE OF ALL FUTURE LEASES SHALL INCLUDE THE
FOLLOWING LANGUAGE:
AT EACH FIVE-YEAR INTERVAL, THE FAIR MARKET VALUE SHALL BE
DETERMINED BY QUALIFIED, INDEPENDENT APPRAISERS. THE
REDETERMINED LEASE RATE (ANNUAL RENT) UNDER THIS PROVISION,
SHALL BE LIMITED TO A FIFTY PERCENT (50%) INCREASE IN THE PRIOR
LEASE RATE UNTIL THE THIRTIETH-YEAR ANNIVERSARY OF THE LEASE
AFTER WHICH THE FIFTY PERCENT (50%) CAP PROVISION SHALL NO
LONGER APPLY AND THE LEASE RATE SHALL BE REDETERMINED EVERY
FIVE YEARS ON THE BASIS OF FAIR MARKET EVALUATION AS DETERMINED
IN KMC 11.20.080.
(C) CITY LEASES OF TIDELANDS EXISTING AT THE TIME OF THE ENACTMENT OF
THIS CHAPTER SHALL HAVE A THIRTY-YEAR PERIOD DETERMINED FROM THE DATE
FROM WHICH THE LEASE WAS ORIGINALLY ENTERED INTO.
(D) FAILURE BY THE CITY TO INSIST UPON RENEGOTIATION AT THE END OF ANY
GIVEN FIVE-YEAR PERIOD SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OF
THE CITY TO INSIST UPON RENEGOTIATION IN ANY SUBSEQUENT YEAR, PROVIDED
THAT NEITHER THE CITY NOR THE LESSEE SHALL HAVE THE RIGHT TO INSIST UPON
RENEGOTIATION UNTIL FIVE YEARS SHALL HAVE ELAPSED FROM THE DATE THE
RENTAL WAS LAST ADJUSTED. This is now covered in 22.05.060.
11.20.170 RESPONSIBILITY TO PROPERLY LOCATE.
IT SHALL BE THE RESPONSIBILITY OF THE LESSEE TO PROPERLY LOCATE HIMSELF
AND HIS IMPROVEMENTS ON THE LEASED LAND. IT SHALL BE UNLAWFUL TO
ENCROACH ON OTHER LANDS OF THE CITY, OR ON LANDS OWNED OR LEASED BY
ANOTHER. This provision is not something that needs to be stated in code.
11.20.180 LEASE UTILIZATION.
LEASED LANDS SHALL BE UTILIZED FOR PURPOSES WITHIN THE SCOPE OF THE
APPLICATION, THE TERMS OF THE LEASE AND IN CONFORMITY WITH THE ORDINANCES
OF THE CITY AND BOROUGH, AND IN SUBSTANTIAL CONFORMITY WITH THE
COMPREHENSIVE PLAN. UTILIZATION OR DEVELOPMENT FOR OTHER THAN THE
ALLOWED USES SHALL CONSTITUTE A VIOLATION OF THE LEASE AND SUBJECT THE
LEASE TO CANCELLATION AT ANY TIME. FAILURE TO SUBSTANTIALLY COMPLETE THE
DEVELOPMENT PLAN OF THE LAND WITHIN THE SPECIFIED TIME FROM THE DATE OF
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EXECUTION OF THE LEASE, CONSISTENT WITH THE PROPOSED USE AND TERMS OF
THE LEASE, SHALL CONSTITUTE GROUNDS FOR CANCELLATION. THE LEASE SHALL
SET FORTH IN DETAIL WITH APPROPRIATE PLANS AND SPECIFICATIONS THE
IMPROVEMENTS TO BE MADE WITHIN THE TIME PERIOD DESCRIBED ABOVE. This is now
provided for in 22.05.085
11.20.190 SUBLEASING.
LEASES MAY PROVIDE FOR SUBLEASING A PORTION OF THE LEASED LAND WITHOUT
PRIOR COUNCIL APPROVAL. SUBLEASES SHALL BE IN WRITING AND BE SUBJECT TO
THE TERMS AND CONDITIONS OF THE ORIGINAL LEASE. NO APPROVAL OF THE CITY
SHALL BE GIVEN TO THE SUBLEASE OF PROPERTY UNTIL THE LESSEE HAS
SUBSTANTIALLY COMPLIED WITH THE DEVELOPMENT PLAN. Subleasing is now covered in
the lease form approved by council and requires council consent.
11.20.200 ASSIGNMENTS.
EXCEPT FOR ASSIGNMENTS FOR COLLATERAL PURPOSES, NO LESSEE MAY ASSIGN
THE LANDS LEASED TO HIM WITHOUT PRIOR CO UNCIL APPROVAL. THE ASSIGNEE
SHALL BE SUBJECT TO ALL OF THE PROVISIONS OF THE LEASE. ANY ATTEMPTED
ASSIGNMENT MADE IN VIOLATION OF THIS SECTION SHALL BE VOID. ANY ASSIGNMENT
REQUIRING COUNCIL APPROVAL WILL NOT BE UNREASONABLY DENIED. This is also
covered in the standard lease form approved by council.
11.20.210 MODIFICATION.
NO LEASE MAY BE MODIFIED ORALLY OR IN ANY MANNER OTHER THAN BY AN
AGREEMENT IN WRITING, SIGNED BY ALL PARTIES IN INTEREST OR THEIR
SUCCESSORS IN INTEREST. ANY SUCH MODIFICATION SHALL REQUIRE COUNCIL
APPROVAL. This is also covered in the standard lease form approved by council.
11.20.220 CANCELLATION—FORFEITURE.
(A) LEASES IN GOOD STANDING MAY BE CANCELED IN WHOLE, OR IN PART, AT
ANY TIME UPON MUTUAL WRITTEN AGREEMENT BY LESSEE AND THE CITY
COUNCIL.
(B) ANY LEASE USED FOR AN UNLAWFUL PURPOSE MAY BE CANCELED.
(C) IF THE LESSEE SHALL DEFAULT IN THE PERFORMANCE OR OBSERVANCE OF ANY
OF THE LEASE TERMS, COVENANTS, OR STIPULATIONS THERETO, OR OF THE
REGULATIONS NOW OR HEREAFTER IN FORCE, AND SHOULD SAID DEFAULT CONTINUE
FOR THIRTY (30) CALENDAR DAYS AFTER SERVICE OF WRITTEN NOTICE BY THE CITY
WITHOUT REMEDY BY LESSEE OF THE CONDITIONS WARRANTING DEFAULT, THE CITY
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SHALL SUBJECT LESSEE TO APPROPRIATE LEGAL ACTION, INCLUDING, BUT NOT
LIMITED TO, FORFEITURE OF THE LEASE. NO IMPROVEMENTS MAY BE REMOVED BY
LESSEE OR OTHER PERSON DURING ANY TIME THE LESSEE IS IN DEFAULT. THIS
PROVISION SHALL NOT BE CONSTRUED TO PROHIBIT THE CITY FROM TAKING ANY
APPROPRIATE LEGAL ACTION, INCLUDING, BUT LIMITED TO, FORFEITURE OF THE
LEASE, IMMEDIATELY UPON THE OCCURRENCE OF A DEFAULT. This is also covered in the
standard lease form approved by council and disposition of improvements is in 22.05.075.
11.20.230 DEFAULT—RIGHT OF ENTRY.
SHOULD DEFAULT BE MADE IN THE PAYMENT OF ANY PORTION OF THE RENT OR FEES
WHEN DUE OR IN ANY OF THE COVENANTS OR CONDITIONS CONTAINED IN THE LEASE
OR IN ANY REGULATIONS NOW OR HEREINAFTER IN FORCE, THEN IN SUCH EVENT THE
CITY SHALL GIVE LESSEE THIRTY DAYS AFTER SUCH WRITTEN NOTICE TO CURE SUCH
DEFAULT OR DEFAULTS, AFTER WHICH IF THE DEFAULT IS NOT CURED, THE CITY MAY
TERMINATE THE LEASE, RE-ENTER AND TAKE POSSESSION OF THE PREMISES,
REMOVE ALL PERSONS THEREFROM. This is now covered in the standard lease form.
11.20.240 NOTICE OR DEMAND.
ANY NOTICE OR DEMAND WHICH UNDER THE TERMS OF A LEASE OR UNDER ANY
STATUTE MUST BE GIVEN OR MADE BY THE PARTIES THERETO, SHALL BE IN WRITING
AND BE GIVEN OR MADE BY REGISTERED OR CERTIFIED MAIL, ADDRESSED TO THE
OTHER PARTY AT THE ADDRESS OF RECORD. HOWEVER, EITHER PARTY MAY
DESIGNATE IN WRITING SUCH NEW OR OTHER ADDRESS TO WHICH SUCH NOTICE OR
DEMAND SHALL THEREAFTER BE SO GIVEN, MADE OR MAILED. A NOTICE GIVEN
HEREUNDER SHALL BE DEEMED DELIVERED WHEN DEPOSITED IN A U.S. GENERAL OR
BRANCH POST OFFICE, ENCLOSED IN A REGISTERED OR CERTIFIED MAIL ENVELOPE,
ADDRESSED AS HEREINABOVE PROVIDED. This is now covered in the standard lease form.
11.20.250 FINANCING—RIGHTS OF MORTGAGES OR LIENHOLDER.
(A) FOR THE PURPOSE OF INTERIM OR PERMANENT FINANCING OR REFINANCING
FROM TIME TO TIME OF THE IMPROVEMENTS TO BE PLACED UPON THE LEASED
PREMISES, AND FOR NO OTHER PURPOSE, A LESSEE, AFTER GIVING W RITTEN NOTICE
THEREOF TO THE CITY, MAY ENCUMBER BY MORTGAGE, DEED OF TRUST,
ASSIGNMENT, OR OTHER APPROPRIATE INSTRUMENT, THE LESSEE’S INTEREST IN THE
LEASED PREMISES AND IN AND TO THE LEASE, PROVIDED SUCH ENCUMBRANCE
PERTAINS ONLY TO SUCH LEASEHOLD INTEREST AND DOES NOT PERTAIN TO OR
CREATE ANY INTEREST IN THE CITY’S TITLE TO THE LEASED PREMISES. IF SUCH
MORTGAGE, DEED OF TRUST, OR ASSIGNMENT, SHALL BE HELD BY A BANK OR OTHER
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ESTABLISHED LENDING OR FINANCIAL INSTITUTION (WHICH TERMS SHALL INCLUDE AN
ESTABLISHED INSURANCE COMPANY AND QUALIFIED PENSION OR PROFIT-SHARING
TRUST), AND SUCH INSTITUTION SHALL ACQUIRE THE LESSEE’S INTEREST IN SUCH
LEASE AS A RESULT OF A SALE UNDER SAID ENCUMBRANCE PURSUANT TO A
FORECLOSURE OR OTHER REMEDY OF THE SECURED PARTY, OR THROUGH ANY
TRANSFER IN LIEU OF FORECLOSURE, OR THROUGH SETTLEMENT OF OR ARISING OUT
OF ANY PENDING OR CONTEMPLATED FORECLOSURE ACTION, SUCH LENDING
INSTITUTION SHALL HAVE THE PRIVILEGE OF TRANSFERRING ITS INTEREST IN SUCH
LEASE TO A NOMINEE OR A WHOLLY-OWNED SUBSIDIARY CORPORATION WITH THE
PRIOR CONSENT OF THE CITY, PROVIDED, HOWEVER, SUCH TRANSFEREE SHALL
ASSUME ALL OF THE COVENANTS AND CONDITIONS REQUIRED TO BE PERFORMED BY
THE LESSEE, WHEREUPON SUCH LENDING INSTITUTION SHALL BE RELIEVED OF ANY
FURTHER LIABILITY UNDER SUCH LEASE FROM AND AFTER SUCH TRANSFER. SUCH
LENDING INSTITUTE FOR THE NOMINEE OR WHOLLY-OWNED SUBSIDIARY
CORPORATION TO WHICH IT MAY HAVE TRANSFERRED SUCH LEASE, OR ANY OTHER
LENDING INSTITUTION WHICH MAY AT ANY TIME ACQUIRE SUCH LEASE, SHALL BE
RELIEVED OF ANY FURTHER LIABILITY UNDER SUCH LEASE FROM AND AFTER A
TRANSFER OF SUCH LEASE.
(B) A LEASEHOLD MORTGAGEE, BENEFICIARY OF A DEED OF TRUST, OR
SECURITY ASSIGNEE, SHALL HAVE AND BE SUBROGATED TO ANY AND ALL RIGHTS
OF THE LESSEE WITH RESPECT TO THE CURING OF ANY DEFAULT HEREUNDER BY
LESSEE.
(C) IF THE HOLDER OF ANY SUCH MORTGAGE, BENEFICIARY OF ANY SUCH DEED
OF TRUST, OR THE SECURITY ASSIGNEE SHALL GIVE THE CITY BEFORE ANY
DEFAULT SHALL HAVE OCCURRED IN THE LEASE, A WRITTEN NOTICE CONTAINING
THE NAME AND POST OFFICE ADDRESS OF SUCH HOLDER, THE CITY SHALL
THEREAFTER GIVE TO SUCH HOLDER A COPY OF EACH NOTICE OF DEFAULT BY
THE LESSEE AT THE SAME TIME AS ANY NOTICE OF DEFAULT SHALL BE GIVEN BY
THE CITY TO THE LESSEE, AND THE CITY WILL NOT THEREAFTER ACCEPT ANY
SURRENDER OR ENTER INTO ANY MODIFICATION OF THIS LEASE WITHOUT THE
PRIOR WRITTEN CONSENT OF THE HOLDER OF ANY FIRST MORTGAGE, BENEFICIAL
INTEREST UNDER A FIRST DEED OF TRUST, OR SECURITY ASSIGNEE, IN THIS
LEASE.
(D) IF, BY REASON OF ANY DEFAULT OF THE LESSEE, EITHER THIS LEASE OR ANY
EXTENSION THEREOF SHALL BE TERMINATED AT THE ELECTION OF THE CITY
PRIOR TO THE STATED EXPIRATION THEREFOR, THE CITY WILL ENTER INTO A NEW
LEASE WITH THE LEASEHOLD MORTGAGEE FOR THE REMAINDER OF THE TERM,
EFFECTIVE AS OF THE DATE OF SUCH TERMINATION, AT THE RENT AND
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ADDITIONAL RENT, AND ON THE TERMS HEREIN CONTAINED, SUBJECT TO THE
FOLLOWING CONDITIONS:
(1) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE, SHALL MAKE
WRITTEN REQUEST TO THE CITY FOR SUCH NEW LEASE WITHIN TWENTY DAYS
AFTER THE DATE OF SUCH TERMINATION AND SUCH WRITTEN REQUEST SHALL
BE ACCOMPANIED BY A PAYMENT TO THE CITY OF ALL SUMS THEN DUE TO THE
CITY UNDER THE LEASE.
(2) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE, SHALL PAY
TO THE CITY, AT THE TIME OF THE EXECUTION AND DELIVERY OF SUCH NEW
LEASE, ANY AND ALL SUMS DUE THEREUNDER IN ADDITION TO THOSE WHICH
WOULD AT THE TIME OF THE EXECUTION AND DELIVERY THEREOF BE DUE
UNDER THIS LEASE; BUT FOR SUCH TERMINATION AND IN ADDITION THERETO,
ANY REASONABLE EXPENSES, INCLUDING LEGAL AND ATTORNEY’S FEES, TO
WHICH THE CITY SHALL HAVE BEEN SUBJECTED BY REASON OF SUCH
DEFAULT.
(3) SUCH MORTGAGEE, BENEFICIARY, OR SECURITY ASSIGNEE SHALL, ON OR
BEFORE THE EXECUTION AND DELIVERY OF SUCH NEW LEASE, PERFORM ALL
THE OTHER CONDITIONS REQUIRED TO BE PERFORMED BY THE LESSEE TO
THE EXTENT THAT THE LESSEE SHALL HAVE FAILED TO PERFORM SUCH
CONDITIONS.
(E) IF A LENDING INSTITUTION OR ITS NOMINEE OR WHOLLY-OWNED SUBSIDIARY
CORPORATION SHALL HOLD A MORTGAGE, DEED OF TRUST, OR SIMILAR SECURITY
INTEREST IN AND TO THIS LEASE AND SHALL THEREAFTER ACQUIRE A LEASEHOLD
ESTATE, DERIVED EITHER FROM SUCH INSTRUMENTS OR FROM THE CITY, AND IF
SUCH INSTITUTION, NOMINEE, OR CORPORATION SHALL DESIRE TO ASSIGN THIS
LEASE OR ANY NEW LEASE OBTAINED FROM THE CITY (OTHER THAN TO A NOMINEE
OR TO A WHOLLY-OWNED SUBSIDIARY CORPORATION AS PERMITTED BY THE ABOVE
PROVISIONS) TO AN ASSIGNEE WHO WILL UNDERTAKE TO PERFORM AND OBSERVE
THE CONDITIONS IN SUCH LEASE REQUIRED TO BE PERFORMED BY THE LESSEE, THE
CITY SHALL NOT UNREASONABLY WITHHOLD ITS CONSENT TO SUCH ASSIGNMENT
AND ASSUMPTION, AND ANY SUCH LENDING INSTITUTION, NOMINEE, OR SUBSIDIARY
SHALL BE RELIEVED OF ANY FURTHER LIABILITY UNDER SUCH LEASE FROM AND
AFTER SUCH ASSIGNMENT. IF THE PROPOSED ASSIGNOR SHALL ASSERT THAT THE
CITY IN UNREASONABLY WITHHOLDING ITS CONSENT TO ANY SUCH PROPOSED
ASSIGNMENT, SUCH DISPUTE SHALL BE RESOLVED BY ARBITRATION. This is now
covered in the standard lease form.
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11.20.260 ENTRY AND RE-ENTRY.
IN THE EVENT THAT THE LEASE SHOULD BE TERMINATED AS HEREINBEFORE
PROVIDED BY SUMMARY PROCEEDINGS OR OTHERWISE, OR IN THE EVENT THAT THE
DEMISED LANDS OR ANY PART THEREOF SHOULD BE ABANDONED BY THE LESSEE
DURING THE SAID TERM, THE LESSOR OR ITS AGENTS, SERVANTS, OR
REPRESENTATIVES MAY, IMMEDIATELY OR ANY TIME THEREAFTER, RE-ENTER AND
RESUME POSSESSION OF SAID LANDS OR SUCH PART THEREOF, AND REMOVE ALL
PERSONS AND PROPERTY THEREFROM, EITHER SUMMARY PROCEEDINGS OR BY A
SUITABLE ACTION OR PROCEEDING AT LAW WITHOUT BEING LIABLE FOR ANY
DAMAGES THEREFOR. NO RE-ENTRY BY THE LESSOR SHALL BE DEEMED AN
ACCEPTANCE OF A SURRENDER OF THE LEASE. This is now covered in the standard lease
form.
11.20.270 RE-LEASE.
IN THE EVEN THAT A LEASE SHOULD BE TERMINATED AS HEREIN PROVIDED, OR BY
SUMMARY PROCEEDINGS, OR OTHERWISE, THE PLANNING & ZONING COMMISSION
MAY OFFER SAID LANDS FOR LEASE OR OTHER APPROPRIATE DISPOSAL, PURSUANT
TO THE PROVISIONS OF THIS ORDINANCE. This provision does not need to be stated in code.
11.20.280 FORFEITURE OF RENTAL.
IN THE EVENT THAT THE LEASE SHOULD BE TERMINATED BECAUSE OF ANY BREACH
BY THE LESSEE AS HEREIN PROVIDED, THE ANNUAL RENTAL PAYMENT LAST MADE BY
THE LESSEE SHALL BE FORFEITED AND RETAINED BY THE LESSOR AS PARTIAL OR
TOTAL LIQUIDATED DAMAGES FOR SAID BREACH. Termination provisions are now
contained in the standard lease form.
11.20.290 RIGHT OF INSPECTION.
CITY SHALL HAVE THE RIGHT AT ALL REASONABLE TIMES TO ENTER THE PREMISES,
OR ANY PART THEREOF, FOR THE PURPOSES OF INSPECTION. This is now covered in the
standard lease form.
11.20.300 EASEMENT GRANTS RESERVED.
CITY RESERVES THE RIGHT TO GRANT AND CONTROL EASEMENTS IN, OR ABOVE THE
LAND LEASED. NO SUCH GRANT OR EASEMENT W ILL BE MADE THAT WILL
UNREASONABLY INTERFERE WITH THE LESSEE’S USE OF THE LAND, AND LESSEE
SHALL HAVE FREE ACCESS AND USE OF ANY AND ALL PARKING AND LOADING RIGHTS,
RIGHTS OF INGRESS AND EGRESS NOW OR HEREAFTER APPERTAINING TO THE
LEASED PREMISES. This provision does not need to be stated in code.
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11.20.310 LEASE SUBORDINATE TO FINANCING REQUIREMENTS.
LESSEE AGREES THAT CITY MAY MODIFY THE LEASE TO MEET REVISED
REQUIREMENTS FOR FEDERAL OR STATE GRANTS, OR TO CONFORM TO THE
REQUIREMENTS OF ANY REVENUE BOND COVENANT. HOWEVER, THE MODIFICATION
SHALL NOT ACT TO REDUCE THE RIGHTS OR PRIVILEGES GRANTED THE LESSEE BY
THIS LEASE, NOR ACT TO CAUSE THE LESSEE FINANCIAL LOSS. This is now covered in
the standard lease form.
11.20.320 WRITTEN WAIVER.
THE RECEIPT OF RENT BY THE LESSOR WITH KNOWLEDGE OF ANY BREACH OF THE
LEASE BY THE LESSEE, OR ANY DEFAULT ON THE PART OF THE LESSEE IN
OBSERVANCE OR PERFORMANCE OF ANY OF THE CONDITIONS OR COVENANTS OF
THE LEASE, SHALL NOT BE DEEMED TO BE A W AIVER OF ANY PROVISIONS OF THE
LEASE. NO FAILURE ON THE PART OF THE LESSOR TO ENFORCE ANY COVENANT OR
PROVISION THEREIN CONTAINED, NOR ANY WAIVER OF ANY RIGHT THEREUNDER BY
THE LESSOR, UNLESS IN WRITING, SHALL DISCHARGE OR INVALIDATE SUCH
COVENANTS OR PROVISIONS, OR AFFECT THE RIGHT OF THE LESSOR TO ENFORCE
THE SAME IN THE EVENT OF ANY SUBSEQUENT BREACH OR DEFAULT. THE RECEIPT,
BY THE LESSOR, OF ANY RENT OR ANY OTHER SUM OF MONEY AFTER THE
TERMINATION, IN ANY MANNER, OF THE TERM THEREIN DEMISED, OR AFTER THE
GIVING BY THE LESSOR OF ANY NOTICE THEREUNDER TO EFFECT SUCH
TERMINATION, SHALL NOT REINSTATE, CONTINUE, OR EXTEND THE RESULTANT TERM
THEREIN DEMISED, DESTROY, OR IN ANY MANNER IMPAIR THE EFFICACY OF ANY SUCH
NOTICE OR TERMINATION AS MAY HAVE BEEN GIVEN THEREUNDER BY THE LESSOR
TO THE LESSEE PRIOR TO THE RECEIPT OF ANY SUCH SUM OF MONEY OR OTHER
CONSIDERATION, UNLESS SO AGREED TO IN WRITING AND SIGNED BY THE LESSOR.
This is now covered in the standard lease form.
11.20.330 SURRENDER ON TERMINATION.
(A) LESSEE SHALL, ON THE LAST DAY OF THE TERM OF THIS LEASE OR UPON ANY
EARLIER TERMINATION OF THIS LEASE, SURRENDER AND DELIVER UP THE
PREMISES INTO THE POSSESSION AND USE OF CITY WITHOUT FRAUD OR DELAY
IN GOOD ORDER, CONDITION, AND REPAIR, EXCEPT FOR REASONABLE WEAR AND
TEAR SINCE THE LAST NECESSARY REPAIR, REPLACEMENT, RESTORATION, OR
RENEWAL, FREE AND CLEAR OF ALL LETTINGS AND OCCUPANCIES UNLESS
EXPRESSLY PERMITTED BY CITY IN WRITING, AND FREE AND CLEAR OF ALL LIENS
AND ENCUMBRANCES OTHER THAN THOSE CREATED BY CITY FOR LOANS TO THE
CITY.
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(B) UPON THE END OF THE TERM OF THIS LEASE OR ANY EARLIER TERMINATION
THEREOF, TITLE TO THE BUILDINGS, IMPROVEMENTS, AND BUILDING EQUIPMENT
SHALL AUTOMATICALLY VEST IN THE CITY WITHOUT REQUIREMENT OF ANY DEED,
CONVEYANCE, OR BILL OF SALE DOCUMENT IN CONFIRMATION HEREOF, LESSEE
SHALL EXECUTE, ACKNOWLEDGE, AND DELIVER THE SAME AND SHALL PAY ANY
CHARGE, TAX, AND FEE ASSERTED OR IMPOSED BY ANY AND ALL GOVERNMENTAL
UNITS IN CONNECTION THEREWITH. This is now covered in the standard lease form.
11.20.340 SANITATION.
THE LESSEE SHALL COMPLY WITH ALL REGULATIONS OR ORDINANCES OF THE CITY
WHICH ARE PROMULGATED FOR THE PROMOTION OF SANITATION. THE PREMISES OF
THE LEASE SHALL BE KEPT IN A NEAT, CLEAN, AND SANITARY CONDITION, AND EVERY
EFFORT SHALL BE MADE TO PREVENT THE POLLUTION OF WATER. This is now covered
in the standard lease form.
11.20.350 BUILDING AND ZONING CODES.
LEASED LANDS SHALL BE UTILIZED IN ACCORDANCE WITH THE BUILDING AND ZONING
ORDINANCES AND RULES AND REGULATIONS OF SAID AUTHORITY. FAILURE TO DO SO
SHALL CONSTITUTE A VIOLATION OF THE LEASE. This does not need to be in this section
of code as it is covered in the zoning code and standard lease form.
11.20.360 RULES.
(A) THE LESSEE SHALL OBSERVE, OBEY, AND COMPLY WITH ALL APPLICABLE
RULES, ETC., OF THE STATE OR FEDERAL GOVERNMENTS.
(B) CITY RESERVES THE RIGHT TO ADOPT, AMEND, AND ENFORCE REASONABLE
RULES AND REGULATIONS GOVERNING THE DEMISED PREMISES AND THE PUBLIC
AREAS AND FACILITIES USED IN CONNECTION THEREWITH. EXCEPT IN CASES OF
EMERGENCY, NO RULE OR REGULATION HEREAFTER ADOPTED OR AMENDED BY
THE CITY SHALL BECOME APPLICABLE UNLESS IT HAS BEEN GIVEN THIRTY DAYS
NOTICE OF ADOPTION OR AMENDMENT THEREOF.
(C) LESSEE, IN THE CONDUCT OF ITS OPERATIONS ON THE DEMISED PREMISES,
SHALL OBSERVE, OBEY, AND COMPLY WITH ANY AND ALL APPLICABLE RULES,
REGULATIONS, LAWS, ORDINANCES, OR ORDERS OF ANY GOVERNMENTAL
AUTHORITY, FEDERAL OR STATE, LAWFULLY EXERCISING AUTHORITY OVER
LESSEE OR LESSEE’S CONDUCT OF ITS BUSINESS.
(D) CITY SHALL NOT BE LIABLE TO LESSEE FOR ANY DIMINUTION OR DEPRIVATION
OF POSSESSION, OR OF ITS RIGHTS HEREUNDER, ON ACCOUNT OF THE EXERCISE
OF ANY SUCH RIGHT OR AUTHORITY AS IN THIS SECTION PROVIDED, NOR SHALL
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LESSEE BE ENTITLED TO TERMINATE THE WHOLE OR ANY PORTION OF THE
LEASEHOLD ESTATE HEREIN CREATED, BY REASON OF THE EXERCISE OF SUCH
RIGHTS OR AUTHORITY, UNLESS THE EXERCISE THEREOF SHALL SO INTERFERE
WITH LESSEE’S USE AND OCCUPANCY OF THE LEASEHOLD ESTATE AS TO
CONSTITUTE A TERMINATION IN WHOLE OR IN PART OF THIS LEASE BY OPERATION
OF LAW IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALASKA AND OF THE
UNITED STATES MADE APPLICABLE TO THE STATES. This is now covered in the
standard lease form.
11.20.370 AIRCRAFT OPERATIONS PROTECTED.
(A) THE CITY SHALL RESERVE TO ITSELF ITS SUCCESSORS AND ASSIGNS, FOR
THE USE AND BENEFIT OF THE PUBLIC, A RIGHT OF FLIGHT FOR THE PASSAGE OF
AIRCRAFT IN THE AIRSPACE ABOVE THE SURFACE AND ALL IMPROVEMENTS
APPROVED BY THE CITY OF THE PREMISES CONVEYED, TOGETHER WITH THE
RIGHT TO CAUSE IN SAID AIRSPACE SUCH NOISE AS MAY BE INHERENT IN THE
OPERATION OF AIRCRAFT, NOW OR HEREAFTER USED FOR NAVIGATION OF OR
FLIGHT IN THE AIR, USING SAID AIRSPACE OF LANDING AT, TAKING OFF FROM, OR
OPERATING ON THE KENAI AIRPORT. (WHEN PLANS FOR IMPROVEMENTS ARE
APPROVED BY THE CITY, THE CITY TO THE EXTENT OF THOSE IMPROVEMENTS
RELEASES THE EASEMENTS HERE EXPRESSED.)
(B) THE LESSEE BY ACCEPTING CONVEYANCE EXPRESSLY AGREES FOR ITSELF,
ITS REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, THAT IT WILL NOT ERECT
NOR PERMIT THE ERECTION OF ANY STRUCTURE OR OBJECT, ON THE AND
CONVEYED, WHICH WOULD BE AN AIRPORT OBSTRUCTION WITHIN THE
STANDARDS ESTABLISHED UNDER THE FEDERAL AVIATION ADMINISTRATION
REGULATIONS, PART 77, AS AMENDED. IN THE EVENT THE AFORESAID COVENANT
IS BREACHED, THE CITY RESERVES THE RIGHT TO ENTER ON THE LAND
CONVEYED HEREUNDER AND TO REMOVE THE OFFENDING STRUCTURE OR
OBJECT, ALL OF WHICH SHALL BE AT THE EXPENSE OF THE LESSEE OR ITS HEIRS,
SUCCESSORS, OR ASSIGNS. This is covered in the standard lease form when necessary
pursuant to deed restrictions or airport requirements.
11.20.380 RIGHT TO ENJOYMENT AND PEACEABLE POSSESSION.
THE CITY SHALL AGREE AND COVENANT THAT THE LESSEE, UPON PAYING RENT AND
PERFORMING OTHER COVENANTS, TERMS, AND CONDITIONS OF THIS LEASE, SHALL
HAVE THE RIGHT TO QUIETLY AND PEACEFULLY HOLD, USE, OCCUPY, AND ENJOY THE
SAID LEASED PREMISES, EXCEPT THAT ANY INCONVENIENCE CAUSED BY PUBLIC
WORKS PROJECTS IN OR ABOUT THE LEASEHOLD PREMISES SHALL NOT BE
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CONSTRUED AS A DENIAL OF THE RIGHT OF QUIET OR PEACEABLE POSSESSION. This
is now covered in the standard lease form.
11.20.390 LESSEE TO PAY TAXES.
LESSEE SHALL PAY ALL LAWFUL TAXES AND ASSESSMENTS WHICH, DURING THE TERM
THEREOF MAY BECOME A LIEN UPON OR WHICH MAY BE LEVIED BY THE STATE,
BOROUGH, CITY, OR ANY OTHER TAX-LEVYING BODY, UPON ANY TAXABLE
POSSESSORY RIGHT WHICH LESSEE MAY HAVE IN OR TO THE REASON OF ITS USE OR
OCCUPANCY, PROVIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL
PREVENT LESSEE FROM CONTESTING AS ANY OTHER LAND OWNER ANY INCREASE IN
SUCH TAX OR ASSESSMENT THROUGH PROCEDURES OUTLINED IN STATE STATUTES.
This is now covered in the standard lease form.
11.20.400 NO PARTNERSHIP OR JOINT VENTURE CREATED.
THE CITY SHALL NOT BE CONSTRUED OR HELD TO BE A PARTNER OR JOINT VENTURER
OF LESSEE IN THE CONDUCT OF BUSINESS ON THE DEMISED PREMISES; AND IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT THE RELATIONSHIP BETWEEN THE
PARTIES THERETO IS, AND SHALL AT ALL TIMES REMAIN THAT OF LANDLORD AND
TENANT. This is now covered in the standard lease form.
11.20.410 DEFAULT BANKRUPTCY.
IF THE LESSEE SHALL MAKE ANY ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR
SHALL BE ADJUDGED A BANKRUPT, OR IF A RECEIVER IS APPOINTED FOR THE LESSEE
OR LESSEE’S ASSETS, OR ANY INTEREST UNDER THIS LEASE, AND IF THE
APPOINTMENT OF THE RECEIVER IS NOT VACATED WITHIN THIRTY DAYS, OR IF A
VOLUNTARY PETITION IS FILED UNDER SECTION 18(A) OF THE BANKRUPTCY ACT BY
THE LESSEE, THEN AND IN ANY EVENT, THE CITY MAY, UPON GIVING THE LESSEE
THIRTY DAYS’ NOTICE, TERMINATE THIS LEASE. This is now covered in the standard lease
form.
11.20.420 NONDISCRIMINATION.
THE LESSEE, FOR HIMSELF, HIS HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS
IN INTEREST, AND ASSIGNS, AS A PART OF THE CONSIDERATION HEREOF, DOES
HEREBY COVENANT AND AGREE AS A COVENANT RUNNING WITH THE LAND, THAT:
(A) NO PERSON ON THE GROUNDS OF RACE, COLOR, OR NATIONAL ORIGIN SHALL
BE EXCLUDED FROM PARTICIPATION IN, DENIED THE BENEFITS OF, OR BE
OTHERWISE SUBJECTED TO DISCRIMINATION IN THE USE OF SAID FACILITIES.
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(B) IN THE CONSTRUCTION OF ANY IMPROVEMENTS ON, OVER, OR UNDER SUCH
LAND AND THE FURNISHING OF SERVICES THEREON, NO PERSON ON THE
GROUNDS OF RACE, COLOR, OR NATIONAL ORIGIN SHALL BE EXCLUDED FROM
PARTICIPATION, DENIED THE BENEFITS OF, OR OTHERWISE BE SUBJECTED TO
DISCRIMINATION.
(C) THE LESSEE SHALL USE THE PREMISES IN COMPLIANCE WITH ALL OTHER
REQUIREMENTS IMPOSED BY OR PURSUANT TO TITLE 49, CODE OF FEDERAL
REGULATIONS, DEPARTMENT OF TRANSPORTATION, SUBTITLE A, OFFICE OF THE
SECRETARY, PART 21, NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS
OF THE DEPARTMENT OF TRANSPORTATION—EFFECTUATION OF TITLE VI OF THE
CIVIL RIGHTS ACT OF 1964, AND AS SAID REGULATIONS MAY BE AMENDED.
(D) IN THE EVENT FACILITIES ARE CONSTRUCTED, MAINTAINED, OR OTHERWISE
OPERATED ON THE SAID PROPERTY DESCRIBED IN THIS LEASE, FOR A PURPOSE
INVOLVING THE PROVISION OF SIMILAR SERVICES OR BENEFITS, THE LESSEE
SHALL MAINTAIN AND OPERATE SUCH FACILITIES AND SERVICES IN COMPLIANCE
WITH ALL OTHER REQUIREMENTS IMPOSED PURSUANT TO TITLE 49, CODE OF
FEDERAL REGULATIONS, DEPARTMENT OF TRANSPORTATION, SUBTITLE A,
OFFICE OF THE SECRETARY, PART 21, NONDISCRIMINATION IN FEDERALLY-
ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION—
EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, AND AS SAID
REGULATIONS MAY BE AMENDED. This is covered in the standard lease form when
necessary pursuant to deed restrictions or other applicable law.
11.20.430 PARTIAL INVALIDITY.
IF ANY TERM, PROVISION, CONDITION, OR PART OF THE LEASE IS DECLARED BY A
COURT OF COMPETENT JURISDICTION TO BE INVALID OR UNCONSTITUTIONAL, THE
REMAINING TERMS, PROVISIONS, CONDITIONS, OR PARTS SHALL CONTINUE IN FULL
FORCE AND EFFECT AS THOUGH SUCH DECLARATION WAS NOT MADE. This is now
covered in the standard lease form.
11.20.440 PAROLE MODIFICATIONS.
IT SHALL BE MUTUALLY UNDERSTOOD AND AGREED BETWEEN THE PARTIES THAT THE
AGREEMENT, AS WRITTEN, SHALL COVER ALL THE AGREEMENTS AND STIPULATIONS
BETWEEN THE PARTIES; AND NO REPRESENTATIONS, ORAL OR WRITTEN, HAVE BEEN
MODIFYING, ADDING TO, OR CHANGING THE TERMS THEREOF. This is now covered in the
standard lease form.
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11.20.450 AMENDMENT OF LEASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN ORDER TO AID THE LESSEE IN
THE FINANCING OF THE IMPROVEMENTS TO BE SITUATED HEREIN, THE CITY SHALL
AGREE THAT IN THE EVENT THE PROPOSED MORTGAGEE, BENEFICIARY OR SECURITY
ASSIGNEE UNDER ANY INTERIM OR PERMANENT LOAN ON THE SECURITY OF THE
LEASEHOLD INTEREST OF THE LESSEE AND THE IMPROVEMENTS TO BE SITUATED
THEREON SO REQUIRES, THE CITY WILL MAKE A REASONABLE EFFORT TO AMEND THIS
LEASE IN ORDER TO SATISFY SUCH REQUIREMENTS UPON THE EXPRESS CONDITION
AND UNDERSTANDING, HOWEVER, THAT SUCH VARIANCE IN LANGUAGE WILL NOT
MATERIALLY PREJUDICE THE CITY’S RIGHTS THEREUNDER NOR BE SUCH AS TO ALTER
IN ANY WAY THE RENTAL OBLIGATIONS OF THE LESSEE HEREUNDER NOR ITS
OBLIGATIONS TO COMPLY WITH ALL EXISTING LAWS AND REGULATIONS OF THE CITY
RELATING TO THE LEASING OF AIRPORT LANDS, AND TO ALL APPLICABLE FEDERAL
STATUTES, RULES, AND REGULATIONS, AND ALL COVENANTS AND CONDITIONS OF
THE DEED BY WHICH THE CITY HOLDS TITLE TO THE LAND. This is now covered in the
standard lease form.
11.20.460 COMPLIANCE WITH LAWS.
(A) LESSEE SHALL COMPLY WITH ALL APPLICABLE LAWS, ORDINANCES, AND
REGULATIONS OF PUBLIC AUTHORITIES NOW OR HEREAFTER IN ANY MANNER
AFFECTING THE LEASED PREMISES OR THE SIDEWALKS, ALLEYS, STREETS, AND
WAY ADJACENT THERETO OR ANY BUILDINGS, STRUCTURES, FIXTURES, AND
IMPROVEMENTS OR THE USE THEREOF, WHETHER OR NOT ANY SUCH LAWS,
ORDINANCES, AND REGULATIONS WHICH MAY BE HEREAFTER ENACTED INVOLVE
A CHANGE OF POLICY ON THE PART OF THE GOVERNMENTAL BODY ENACTING THE
SAME. LESSEE AGREES TO HOLD CITY FINANCIALLY HARMLESS FROM THE
FOLLOWING:
(1) FROM THE CONSEQUENCES OF ANY VIOLATION OF SUCH LAWS,
ORDINANCES, AND/OR REGULATIONS.
(2) FROM ALL CLAIMS FOR DAMAGES ON ACCOUNT OF INJURIES, DEATH, OR
PROPERTY DAMAGE RESULTING FROM SUCH VIOLATION.
(B) LESSEE FURTHER AGREES IT WILL NOT PERMIT ANY UNLAWFUL OCCUPATION,
BUSINESS, OR TRADE TO BE CONDUCTED ON SAID PREMISES OR ANY USE TO BE
MADE THEREOF CONTRARY TO ANY LAW, ORDINANCE, OR REGULATION AS
AFORESAID WITH RESPECT THERETO. This is now covered in the standard lease form.
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11.20.470 CARE OF PREMISES.
LESSEE, AT ITS OWN COST AND EXPENSE, SHALL KEEP THE LEASED PREMISES, ALL
IMPROVEMENTS WHICH AT ANY TIME DURING THE TERM OF THIS LEASE MAY BE
SITUATED THEREON, AND ANY AND ALL APPURTENANCES THEREUNTO BELONGING,
IN GOOD CONDITION AND REPAIR, DURING THE ENTRE TERM OF THIS LEASE. This is
now covered in the standard lease form.
11.20.480 LESSEE’S OBLIGATION TO REMOVE LIENS.
LESSEE WILL NOT PERMIT ANY LIENS INCLUDING, BUT NOT LIMITED TO, MECHANICS’,
LABORERS’, OR MATERIAL-MEN’S LIENS OBTAINABLE OR AVAILABLE UNDER THE THEN
EXISTING LAWS, TO STAND AGAINST THE LEASED PREMISES OR IMPROVEMENTS FOR
ANY LABOR OR MATERIAL FURNISHED TO LESSEE OR CLAIMED TO HAVE BEEN
FURNISHED TO LESSEE OR TO LESSEE’S AGENTS, CONTRACTORS, OR SUBLESSEES,
IN CONNECTION WITH WORK OF ANY CHARACTER PERFORMED OR CLAIMED TO HAVE
BEEN PERFORMED ON SAID PREMISES OR IMPROVEMENTS BY OR AT THE DIRECTION
OR SUFFERANCE OF LESSEE, PROVIDED, HOWEVER, LESSEE SHALL HAVE THE RIGHT
TO PROVIDE A BOND AS CONTEMPLATED BY ALASKA LAW AND CONTEST THE VALIDITY
OR AMOUNT OF ANY SUCH LIEN OR CLAIMED LIEN. ON FINAL DETERMINATION OF SUCH
LIEN OR SUCH CLAIM FOR LIEN, LESSEE WILL IMMEDIATELY PAY ANY JUDGMENT
RENDERED WITH ALL PROPER COSTS AND CHARGES AND SHALL HAVE SUCH LIEN
RELEASED OR JUDGMENT SATISFIED AT LESSEE’S OWN EXPENSE. This is now covered
in the standard lease form.
11.20.490 CONDEMNATION.
IN THE EVENT THE LEASED PREMISES OR ANY PART THEREOF SHALL BE CONDEMNED
AND TAKEN FOR A PUBLIC OR A QUASI-PUBLIC USE, THEN UPON PAYMENT OF ANY
AWARD OR COMPENSATION ARISING FROM SUCH CONDEMNATION, THERE SHALL BE
SUCH DIVISION OF THE PROCEEDS, SUCH ABATEMENT IN RENT PAYABLE DURING THE
TERM OR ANY EXTENSION OF THE TERM HEREOF, AND SUCH OTHER ADJUSTMENTS
AS THE PARTIES MAY AGREE UPON AS BEING JUST AND EQUITABLE UNDER ALL THE
CIRCUMSTANCES. IF THE CITY AND LESSEE ARE UNABLE TO AGREE WITHIN THIRTY
DAYS AFTER SUCH AN AWARD HAS BEEN PAID INTO COURT, UPON WHAT DIVISION,
ANNUAL ABATEMENT IN RENT, AND OTHER ADJUSTMENTS ARE JUST AND EQUITABLE,
THE DISPUTE SHALL BE DETERMINED BY ARBITRATION PROVIDED IN KMC 11.20.670
HEREOF. This is now covered in the standard lease form.
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11.20.500 PROTECTION OF SUBTENANTS.
TO PROTECT THE POSITION OF ANY SUBTENANT(S) HEREAFTER PROPERLY
OBTAINING ANY INTERESTS IN THE LEASEHOLD ESTATE GRANTED LESSEE
HEREUNDER, THE CITY AGREES THAT IN THE EVENT OF THE CANCELLATION,
TERMINATION, EXPIRATION, OR SURRENDER OF THIS LEASE (THE GROUND LEASE),
THE CITY WILL ACCEPT THE SUBTENANT, ITS SUCCESSORS AND ASSIGNS, AS ITS
LESSEE FOR A PERIOD EQUAL TO THE FULL ELAPSED PORTION OF THE TERM OF THE
SUBLEASE, INCLUDING ANY EXTENSIONS OR RENEWALS THEREOF NOT EXCEEDING
THE TERM OF THIS LEASE, UPON THE SAME COVENANTS AND CONDITIONS THEREIN
CONTAINED, TO THE EXTENT THAT SAID COVENANTS AND CONDITIONS ARE NOT
INCONSISTENT WITH ANY OF THE TERMS AND CONDITIONS OF THIS LEASE, PROVIDED
SUCH SUBTENANT SHALL MAKE FULL AND COMPLETE ATTORNMENT TO THE CITY FOR
THE BALANCE OF THE TERM OF SUCH SUBLEASE SO AS TO ESTABLISH DIRECT PRIVITY
OF ESTATE AND CONTRACT BETWEEN THE CITY AND THE SUBTENANT WITH THE SAME
FORCE AND EFFECT AS THOUGH SUCH SUBLEASE WAS ORIGINALLY MADE DIRECTLY
BETWEEN THE CITY AND SUCH SUBTENANT; AND FURTHER PROVIDED SUCH
SUBTENANT AGREES TO COMPLY WITH ALL THE PROVISIONS OF THE GROUND LEASE
AND ALL THE TERMS OF ANY MORTGAGE, DEED OF TRUST, OR SECURITY ASSIGNMENT
TO WHICH SUCH LEASEHOLD ESTATE IS SUBJECT, EXCEPT THE PAYMENT OF RENT
UNDER THE GROUND LEASE AND THE PAYMENT OF ANY DEBT SERVICE UNDER ANY
SUCH MORTGAGE, DEED OF TRUST, OR SECURITY ASSIGNMENT. This is now covered in
the standard lease form.
11.20.510 SUCCESSORS IN INTEREST.
THIS LEASE SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO, SUBJECT TO
SUCH SPECIFIC LIMITATIONS OR ASSIGNMENT AS ARE PROVIDED FOR HEREIN. This is
now covered in the standard lease form.
11.20.520 GOVERNING LAW.
THE INDENTURE OF LEASE SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF
THE STATE OF ALASKA. This is now covered in the standard lease form.
11.20.530 NOTICES.
(A) ANY NOTICES REQUIRED BY THE LEASE SHALL BE IN WRITING AND SHALL BE
DEEMED TO BE DULY GIVEN ONLY IF DELIVERED PERSONALLY OR MAILED BY
CERTIFIED OR REGISTERED MAIL IN A PREPAID ENVELOPE ADDRESSED AS
FOLLOWS:
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TO CITY:CITY HALL—CITY OF KENAI
[P.O. BOX 580] 210 FIDALGO AVENUE
KENAI, ALASKA 99611
TO TENANT:
(B) THE CITY SHALL ALSO MAIL A COPY OF ANY NOTICE GIVEN TO THE LESSEE,
BY REGISTERED OR CERTIFIED MAIL, TO ANY LEASEHOLD LENDER (MORTGAGEE,
BENEFICIARY OF A DEED OF TRUST, SECURITY ASSIGNEE) WHO SHALL HAVE
GIVEN THE CITY NOTICE OF SUCH MORTGAGE, DEED OF TRUST, OR SECURITY
ASSIGNMENT.
(C) ANY SUCH ADDRESSES MAY BE CHANGED BY AN APPROPRIATE NOTICE IN
WRITING TO ALL OTHER PARTIES AFFECTED PROVIDED SUCH CHANGE OF
ADDRESS IS GIVEN TO THE OTHER PARTIES BY THE MEANS OUTLINED IN
PARAGRAPH (A) ABOVE AT LEAST FIFTEEN DAYS PRIOR TO THE GIVING OF THE
PARTICULAR NOTICE IN ISSUE. This is now covered in the standard lease form.
11.20.540 FIRE PROTECTION.
THE LESSEE WILL TAKE ALL REASONABLE PRECAUTION TO PREVENT AND TAKE ALL
NECESSARY ACTION TO SUPPRESS DESTRUCTIVE OR UNCONTROLLED GRASS,
BRUSH, OR OTHER FIRES ON LEASED LANDS, AND COMPLY WITH ALL LAWS,
REGULATIONS, AND RULES PROMULGATED AND ENFORCED BY THE CITY FOR FIRE
PROTECTION WITHIN THE AREA WHEREIN THE LEASED PREMISES ARE LOCATED. This
does not need to be in this code section.
11.20.550 INSPECTION.
THE LESSEE SHALL ALLOW AUTHORIZED REPRESENTATIVES OF THE CITY TO ENTER
THE LEASED LAND FOR INSPECTION AT ANY REASONABLE TIME. This is now covered in
the standard lease form.
11.20.560 PERSONAL USE OF MATERIALS.
ALL COAL, OIL, GAS, AND OTHER MINERALS AND ALL DEPOSITS OF STONE OR GRAVEL
VALUABLE FOR EXTRACTION OR UTILIZATION AND ALL MATERIALS SUBJECT TO TITLE
II, DIVISION I, CHAPTERS 4, 5, AND 6 OF THE ALASKA ADMINISTRATIVE CODE ARE
EXCEPTED FROM THE OPERATION OF A SURFACE LEASE. SPECIFICALLY, THE LESSEE
OF THE SURFACE RIGHTS SHALL NOT SELL OR REMOVE FOR USE ELSEW HERE ANY
TIMBER, STONE, GRAVEL, PEAT MOSS, TOPSOIL, OR ANY OTHER MATERIAL VALUABLE
FOR BUILDING OR COMMERCIAL PURPOSES; PROVIDED, HOWEVER, THAT MATERIAL
REQUIRED FOR THE DEVELOPMENT OF THE LEASEHOLD MAY BE USED IF ITS USE IS
FIRST APPROVED BY THE CITY. This is now covered in the standard lease form.
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11.20.570 RESTRICTIONS AND RESERVATIONS.
THE LEASE SHALL CONTAIN SUCH RESTRICTIONS AND RESERVATIONS AS ARE
NECESSARY TO PROTECT THE PUBLIC INTEREST. This is not necessary to have in this code
section and is covered elsewhere in code to an extent and in the lease form.
11.20.580 WASTE AND INJURY TO LAND.
IF ANY PERSON SHALL COMMIT WASTE, TRESPASS, OR OTHER INJURY UPON CITY
LAND, THE PERSON SO OFFENDING, IN ADDITION TO BEING CIVILLY LIABLE FOR ANY
DAMAGES CAUSED, SHALL BE DEEMED GUILTY OF A VIOLATION. This is provided for in
the lease form.
11.20.590 WARRANTY.
THE CITY DOES NOT WARRANT BY ITS CLASSIFICATION OR LEASING OF LAND THAT
THE LAND IS IDEALLY SUITED FOR THE USE AUTHORIZED UNDER SAID CLASSIFICATION
OR LEASE, AND NO GUARANTY IS GIVEN OR IMPLIED THAT IT SHALL BE PROFITABLE
TO EMPLOY LAND TO SAID USE. CITY BEARS NO RESPONSIBILITY FOR ANY WATER
EROSION OF LAND. This is provided for in the lease form.
11.20.600 APPROVAL OF OTHER AUTHORITIES.
THE ISSUANCE BY THE CITY OF LEASES DOES NOT RELIEVE THE GRANTEE OR LESSEE
OF RESPONSIBILITY OF OBTAINING LICENSES OR PERMITS AS MAY BE REQUIRED BY
DULY AUTHORIZED BOROUGH, STATE, OR FEDERAL AGENCIES. This does not need to be
in this code section and is provided for in the lease form.
11.20.610 TITLE RESTRICTIONS.
ALL LEASES OR SALES OF PROPERTY SHALL BE MADE SUBJECT TO RESTRICTIONS
AND RESERVATIONS IN THE PATENT, DEED, OR OTHER INSTRUMENT UNDER WHICH
THE CITY HOLDS. This does not need to be in this code section as it is a legal requirement.
11.20.620 INSURANCE—HOLD HARMLESS.
LESSEE SHALL COVENANT TO SAVE THE CITY HARMLESS FROM ALL ACTIONS, SUITS,
LIABILITIES, OR DAMAGES RESULTING FROM OR ARISING OUT OF ANY ACTS OF
COMMISSION OR OMISSION BY THE LESSEE, HIS AGENTS, EMPLOYEES, CUSTOMERS,
INVITEES, OR ARISING FROM OR OUT OF THE LESSEE’S OCCUPATION, OR USE OF THE
PREMISES DEMISED, OR PRIVILEGES GRANTED, AND TO PAY ALL COSTS CONNECTED
THEREWITH. IN THIS CONNECTION, THE LESSEE SHALL AGREE TO ARRANGE AND PAY
FOR ALL THE FOLLOWING:
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(A) PUBLIC LIABILITY INSURANCE PROTECTING BOTH THE CITY AND/OR ITS
AGENTS AND THE LESSEE, SUCH INSURANCE TO BE EVIDENCED BY A CERTIFICATE
SHOWING THE INSURANCE IN FORCE. THE AMOUNT OF SUCH PUBLIC LIABILITY
INSURANCE SHALL HAVE LIMITS NOT LESS THAN THOSE KNOWN AS
$250,000/$500,000/$100,000.
(B) LIQUOR LIABILITY (WHERE APPLICABLE).
(C) LESSEE AGREES TO CARRY EMPLOYER’S LIABILITY INSURANCE AND
WORKMEN’S COMPENSATION INSURANCE, AND TO FURNISH A CERTIFICATE
THEREOF TO THE CITY, IF APPLICABLE.
(D) INSURANCE CONTRACTS PROVIDING LIABILITY INSURANCE AND WORKMEN’S
COMPENSATION SHALL PROVIDE FOR NOT LESS THAN THIRTY DAYS WRITTEN
NOTICE TO THE CITY OF CANCELLATION OR EXPIRATION OR SUBSTANTIAL
CHANGE IN POLICY CONDITIONS AND COVERAGE.
(E) LESSEE AGREES THAT WAIVER OF SUBROGATION AGAINST THE CITY SHALL
BE REQUESTED OF LESSEE’S INSURER, AND SHALL BE PROVIDED AT NO COST TO
THE CITY.
(F) CROSS LIABILITY: IT IS UNDERSTOOD AND AGREED THAT THE INSURANCE
AFFORDED BY THIS POLICY OR POLICIES FOR MORE THAN ONE NAMED INSURED,
SHALL NOT OPERATE TO INCREASE THE LIMITS OF THE COMPANY’S LIABILITY, BUT
OTHERWISE SHALL NOT OPERATE TO LIMIT OR VOID THE COVERAGE OF ANY ONE
NAMED INSURED AS RESPECTS CLAIMS AGAINST THE SAME NAMED INSURED OR
EMPLOYEES OF SUCH OTHER NAMED INSURED.
(G) THE INSURANCE PROCURED BY THE LESSEE AS HEREIN REQUIRED SHALL BE
ISSUED IN THE NAME OF THE LESSEE AND THE CITY BY A COMPANY LICENSED TO
DO BUSINESS IN THE STATE OF ALASKA, AND SHALL CONTAIN ENDORSEMENTS
THAT:
(1) SUCH INSURANCE MAY NOT BE CANCELED OR AMENDED WITH RESPECT
TO THE CITY WITHOUT THIRTY DAYS WRITTEN NOTICE BY REGISTERED OR
CERTIFIED MAIL TO THE CITY BY THE INSURANCE COMPANY.
(2) LESSEE SHALL BE SOLELY RESPONSIBLE FOR PAYMENT OF PREMIUMS
AND THAT CITY SHALL NOT BE REQUIRED TO PAY ANY PREMIUMS FOR SUCH
INSURANCE.
(H) THE AMOUNT OF INSURANCE COVERAGE REQUIRED ABOVE MAY BE SUBJECT
TO REVIEW FOR INCREASE AT EACH FIVE-YEAR RENEGOTIATION OF THE LEASE.
(I) UPON REVIEW BY THE COMMISSION, THE LESSEE MAY BE REQUIRED TO
OBTAIN SUCH OTHER INSURANCE PROTECTING THE CITY AND LESSEE THAT MAY
BE NECESSARILY REQUIRED OR ADVISABLE OWING TO THE PARTICULARITIES OF
THE HARBOR-RELATED ACTIVITIES ON THE LEASE-HOLD INTEREST. This is provided
for in the lease form.
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11.20.630 INSURANCE OF USERS—SUBTENANTS.
LESSEE, FOR ITS OWN PROTECTION, MAY REQUIRE BONA FIDE PUBLIC USERS AND
SUBTENANTS TO EXECUTE AGREEMENTS HOLDING LESSEE HARMLESS FROM
ACTIONS ARISING OUT OF USER’S OPERATIONS AND MAY REQUIRE SUCH BONA FIDE
PUBLIC USERS AND SUBTENANTS TO SHOW PROOF OF PUBLIC LIABILITY INSURANCE
COVERING THEIR OPERATIONS ON THE DEMISED PREMISES IN SUCH AMOUNTS AS
WILL ADEQUATELY PROTECT THEM. This does not need to be in this code section as it is
provided in the lease form.
11.20.640 ANNUAL REPORT.
THE LESSEE MAY BE REQUIRED TO SUBMIT TO THE CITY EACH YEAR ON OR ABOUT
MARCH 15, AN ANNUAL REPORT ON ITS OPERATIONS, PARTICULARLY THOSE
SERVICES AND FACILITIES OFFERED TO THE PUBLIC, WHETHER ON A FEE OR NON-FEE
BASIS]. This does not need to be in this code section as it is covered in the planning and zoning
code related to conditional use permits and can be included in a specific lease if necessary.
11.20.650 Tidelands [C]Claims. (House Keeping)
The City shall lease the subject land subject to any preference rights claims made pursuant to the
provisions of Alaska State 38.05.[3]820 or Ordinance No. 455-78, dated September 5, 1979 of
the City of Kenai, adopted pursuant thereto, and the lessee holds lessor harmless for any
damages, legal expenses, or compensation necessitated by the resolution or satisfaction of said
claims, if any. This is a unique provision that should remain. The proposed changes reflect a
statutory change to state law renumbering the state statute number.
11.20.660 Subjection to [H]Harbor [O]Ordinance. (House Keeping)
All leases are subject to the terms, conditions, and regulations imposed by Title II, Harbor and
Harbor Facilities, of the 1979 Kenai Code of ordinances as amended of which this section is part.
This is relevant and should be reiterated in the lease document itself.
[11.20.670 ARBITRATION.
IN THE EVENT THE CITY AND LESSEE SHALL BE UNABLE TO AGREE AS TO ANY MATTER
PROVIDED FOR IN THE LEASE EXCEPT AS TO THE AMOUNT OF THE FIVE-YEAR RENT
REDETERMINATION AMOUNT WHICH IS HANDLED PURSUANT TO KMC 11.20.160, SUCH
DISPUTE SHALL BE DETERMINED BY THREE DISINTERESTED ARBITRATORS (UNLESS
THE PARTIES CAN AGREE ON ONE ARBITRATOR). SUCH ARBITRATION SHALL BE
CONDUCTED UPON REQUEST OF EITHER THE CITY OR THE LESSEE, BEFORE THREE
ARBITRATORS (UNLESS THE CITY OR THE LESSEE AGREE TO ONE ARBITRATOR)
DESIGNATED BY THE AMERICAN ARBITRATION ASSOCIATION AND IN ACCORDANCE
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Ordinance No. 3106-2020
WITH THE RULES OF SUCH ASSOCIATION. THE ARBITRATORS DESIGNATED AND
ACTING UNDER THIS LEASE SHALL HAVE NO POWER TO DEPART FROM OR CHANGE
ANY OF THE PROVISIONS THEREOF. THE EXPENSE OF ARBITRATION PROCEEDINGS
CONDUCTED HEREUNDER SHALL BE BORNE EQUALLY BY THE PARTIES. THE
PROCEEDINGS SHALL TAKE PLACE IN KENAI, ALASKA UNLESS OTHERWISE AGREED
UPON BY THE PARTIES.] Appeal rights for lease rates are provided in Title 22 addressing city
lands. In the general the City has moved away from arbitration clauses.
11.20.680 Provisions [R]Regulating [P]Public [U]Use [P]Purpose. (House
Keeping)
The City Council realizes that only a limited area of tidelands bordering navigable waters are
available within the City of Kenai and which are owned by the City of Kenai. It would be in the
public interest to insure that these lands do not pass out of community control at least to the extent
that the public would not be deprived of harbor services at reasonable rates in the future.
Therefore, areas of City-owned tidelands which are developable for the bona fide public purposes
as enumerated below shall be leased only with the following covenants defined to insure public
use and access at reasonable rates. This is a provision unique to Title 11 that should be
maintained.
11.20.690 Provision to be [I]Included in [P]Public [U]Use [L]Lease. (House
Keeping)
The following provision shall be included in leases where harbor facilities are constructed to be
utilized all or in part for bona fide public uses. This is a provision unique to Title 11 that should be
maintained.
11.20.700 Public [U]Use: [D]Defined. (House Keeping)
(a) Public use shall mean a use limited in part or in whole to the following:
(1) In general, the lessee may use the demised premises or part thereof for any of the
following purposes only:
(i) Public dock facilities.
(ii) Maritime commerce.
(iii) Transportation.
(iv) Fishing.
(v) Boat harbor.
(vi) Port and waterfront development purposes.
(b) Before lessee may conduct any activities which fall under this general criteria, but are
not specifically mentioned above, lessee must obtain written consent of the City. This is a
provision unique to Title 11 that should be maintained, however I would recommend the
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Ordinance No. 3106-2020
Harbor Commission revisit this to ensure it allows for sufficient flexibility in development, for
example, it should not be interpreted to prohibit retail, restaurant, or boat storage, even
perhaps some limited residential as part of a broader harbor development plan.
11.20.710 Controlled [A]Access. (House Keeping)
Lessee, for its own protection, may construct or install fences, gates, or other types of barriers to
restrict access to portions of the demised premises that are not designated for a public use and
may provide reasonable controls for access to public use areas to allow for security for such areas
while insuring reasonable public access. Reasonable public access includes accommodations
made for fishing operations during fishing season. Any Controlled Access measures shall be
indicated on the Lessee’s Development Plan. This is a provision unique to Title 11 that should be
maintained.
11.20.720 Use [C]Charges. (House Keeping)
Lessee shall make reasonable and non-discriminatory charges to the public for use of any of its
facilities. [IT IS EXPRESSLY RECOGNIZED THAT LESSEE IS ENTITLED TO A MARGIN OF
PROFIT, WHICH SHOULD BE FAI R, REASONABLE, AND COMPETITIVE, AND THAT CITY
WILL COOPERATE TO THIS END IN CONSIDERING RATES AND FEES. THE COMMISSION
SHALL REVIEW ALL RATE STRUCTURES ANNUALLY. THE LEASE SHALL CONTAIN AN
ARBITRATION PROVISION AS SET FORTH IN KMC 11.20.670 TO RESOLVE DISPUTES
ARISING HEREUNDER.] As a general policy this is ok, but the City currently does not monitor
rates charged by businesses.
[11.20.730 MAINTENANCE OF DOCK.
LESSEE COVENANTS THAT IT WILL MAINTAIN THE DOCK FACILITY IN A SAFE CONDITION
AND IN ACCORDANCE WITH APPLICABLE STATE AND FEDERAL STANDARDS.] I
recommend removal of this because it is unclear what dock is being referred to and is covered in
other provisions and lease terms.
[11.20.740 MODIFICATIONS OF EXISTING LEASES.
LEASES SHALL ONLY BE MODIFIED TO THAT EXTENT DEEMED TO BE NECESSARY TO
PROTECT THE PUBLIC’S INTEREST. This is provided for in the lease form.
11.20.750 UNAUTHORIZED REMOVAL OF MATERIAL PROHIBITED.
ANY PERSON, FIRM, OR CORPORATION WHO WITHOUT WRITTEN AUTHORITY FROM
THE CITY REMOVES ROCK, GRAVEL, OR OTHER MATERIAL FROM THE LANDS OWNED
BY THE CITY WITHOUT THE EXPRESS CONSENT OF THE CITY SHALL BE DEEMED
GUILTY OF A VIOLATION. ANY CRIMINAL ACTION TAKEN AGAINST SUCH PERSON SHALL
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Ordinance No. 3106-2020
NOT PRECLUDE THE INSTITUTION OF CIVIL PROCEEDINGS BY THE CITY. This is provided
for in the lease form.
11.20.760 REMOVAL NOT AUTHORIZED BY LEASE.
NO DEED OR LEASE GRANTED BY THE CITY TO ANY PERSON SHALL CONTAIN TERMS
OR BE CONSTRUED AS GRANTING ANY RIGHT TO REMOVE MATERIAL FROM CITY
LANDS.] This is provided for in the lease form.
[11.20.770 DISPOSITION OF RIGHTS BY COUNCIL.
IN RECOGNITION THAT CONDITIONS MAY EXIST FROM TIME TO TIME W HEREBY USE OF
SUCH LANDS AND THE MATERIAL COMPRISING THE SAME MAY BE BENEFICIAL TO THE
PUBLIC INTEREST AND PROMOTE THE PROGRESS AND DEVELOPMENT OF THE CITY,
APPLICATIONS FOR THE USE THEREOF MAY BE RECEIVED AND CONSIDERED BY THE
COMMISSION, PROVIDING SUCH APPLICATIONS FULLY DISCLOSE TO THE CITY ALL
MATERIAL FACTS AND PLANS FOR THE PROPOSED USE. SUCH APPLICATIONS SHALL
BE CONSISTENT WITH THE COMPREHENSIVE PLAN OF THE CITY AND REFERRED TO
THE CITY PLANNING COMMISSION FOR ITS RECOMMENDATIONS. DISPOSITION OF
SUCH APPLICATIONS SHALL BE MADE BY THE COUNCIL AFTER RECOMMENDATION
FROM THE COMMISSION.] This is covered in the City’s material site ordinances.
11.20.780 Penalties.
(a) It is unlawful for any person to violate any of the provisions of this chapter and upon
conviction thereof shall be fined as provided for violations in KMC 13.05.010. Each day such
violation is committed or permitted to continue shall constitute a separate offense and shall
be punishable as such hereunder.
(b) In addition to or as an alternative to the above penalty provision, the City may impose a
civil penalty in an amount as provided by KMC 13.05.010 per day for the violation of any
provision of this chapter and seek injunctive relief for any infraction thereof for which the
offending party will be charged for reasonable attorney’s fees and costs incurred by the City
as awarded by the court.
(c) Nothing in this section shall be deemed to restrict the City’s exercise of any of its rights
pursuant to the lease agreement including those enumerated in KMC 11.20.220 and KMC
11.20.240 hereof. This penalty section is appropriate to remain in code.
11.20.790 Tideland [L]Leases for [S]Shore [F]Fisheries. (House Keeping)
(a) Notwithstanding other provisions of the City’s Code of Ordinances [T]the annual
minimum rental rate for tideland leases used primarily for shore fisheries shall be an annual
fee as set forth in the City’s schedule of fees adopted by the City Council. However, should
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Ordinance No. 3106-2020
the State of Alaska set an annual lease rate higher than that established by the City for similar
tideland leases for shore fisheries on land owned by the State, the City may amend the annual
rental to a rate equal to that charged by the State of Alaska. [ANY MONEY OWED
PURSUANT TO KMC 11.20.150 ] SHALL BE IN ADDITION TO THE ANNUAL MINIMUM
SET FORTH ABOVE.
(B) NEITHER KMC 11.20.160 NOR KMC 11.20.620(A) SHALL APPLY TO TIDELAND
LEASES FOR SHORE FISHERIES.
(C) THE PROVISIONS OF KMC 11.20.110 AND KMC 11.20.130 REQUIRING
APPRAISALS OF TIDELAND PROPERTY SHALL NOT APPLY TO LEASES OF
TIDELANDS FOR SHORE FISHERIES. HOWEVER, THE SURVEY PROVISIONS OF KMC
11.20.110 ARE APPLICABLE TO SHORE FISHERY LEASES.] Shore fisheries lease are
unique and this section should be maintained. The amendments address the proposed
removal of prior code sections.
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MEMORANDUM
TO: Harbor Commission
FROM: Scott Bloom, City Attorney
DATE: February 11, 2020
SUBJECT: Ordinance 3106-2020 - Amending Title 11 – Harbor and Harbor Facilities
Below is a clean copy of what Title 11 would look like if all the changes proposed in Ordinance
3106 - 2020 were enacted.
Title 11
HARBOR AND HARBOR FACILITIES
Chapters:
11.05 Harbor Master
11.10 Harbor Commission
11.15 Tidelands
11.20 Leasing of Tidelands
Chapter 11.05
HARBOR MASTER
Sections:
11.05.010 Harbor Master.
11.05.020 Harbor defined.
11.05.030 Harbor regulations.
11.05.080 Leasing not prohibited.
11.05.090 Use of launch ramp and float.
11.05.100 No wake zones.
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Title 11
11.05.010 Harbor Master.
The Harbor Master, shall be the Public Works Director. The Harbor Master shall be the chief
administrator of the harbor and its facilities. He or she shall have all powers and duties prescribed
by ordinance and the regulations and rates prescribed by the City Manager. In addition, insofar
as it is appropriate, shall have all powers and duties and rates prescribed by the City Manager,
subject to approval by the Council; and, in addition, insofar as it is appropriate, shall have all
powers and duties imposed upon harbor masters, port directors, and administrative heads of
harbors and ports by Federal or State law.
11.05.020 Harbor Defined.
The harbor shall embrace all that portion of the Kenai River located within the City of Kenai,
including all tide and submerged lands, whether filled or unfilled, situated below the line of mean
high tide, as may be leased from the State of Alaska.
11.05.030 Harbor Regulations.
The City Manager is hereby empowered, subject to change by the Council, to make such rules
and regulations required for the operation of the harbor, not in conflict with the provisions of this
Code, and to establish the fees, rates, and charges for the billing and collections for the support
of the harbor, and no person shall fail to comply with any such rule or regulation.
11.05.080 Leasing Not Prohibited.
Nothing in this chapter or in this code of ordinances shall prohibit the City Council from leasing
the docks, dock sites, and other harbor facilities to private persons, firms, and corporations.
11.05.090 Use of Launch Ramp and Float.
(a) The City of Kenai launching facility shall be open to the public upon reasonable terms
and conditions as provided by regulation.
(b) Failure to pay a boat launch fee for the City of Kenai launching facility set forth according
to KMC 11.05 within one (1) hour of the retrieval of the boat or vessel from the water shall be
a violation punishable by a fine of fifty dollars ($50.00).
(c) It is unlawful to block access to either of the launch ramp or float facilities. “Blocking
access” means leaving a boat, trailer, or vehicle upon the launch ramp or float in such a
position as to prevent the launching or retrieval of boats.
(d) Person blocking access to the ramp or float facilities shall be subject to a civil penalty as
provided in KMC 13.05.010(b).
(e) Each one (1) hour period for which the ramp or float is blocked shall be considered a
separate offense for the purposes of civil penalties.
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Title 11
11.05.100 No Wake Zones.
(a) The City Manager, subject to change by the Council, is authorized to establish no wake
zones within the Kenai Harbor outside of the Kenai River Special Management Area as
needed to protect public and private property, and/or public safety.
(b) No wake zones may be established on a temporary or permanent basis.
(c) A “no wake zone” is defined as a zone where no person may operate a boat at a speed
greater than five (5) miles per hour.
(d) Established no wake zones shall be marked with appropriate signage in a manner to
provide reasonable public notice.
(e) A violation of this section shall be punishable as provided in KMC 13.05.010.
Chapter 11.10
HARBOR COMMISSION
Sections:
11.10.010 Duties and powers.
11.10.010 Duties and Powers.
(a) The Harbor Commission shall be required to do the following:
(1) Develop, adopt, alter, or revise, subject to approval by the City Council, a master
plan for the physical development of harbor or port facilities for the City. Such master
plan with accompanying maps, plats, charts, descriptive, and explanatory matter, shall
show the Harbor Commission’s recommendations for the development of the City Harbor
facilities may include, among other things:
(i) development of the type, location, and sequence of all public harbor facilities;
(ii) the relocation, removal, extension, or change of use of existing harbor facilities;
(2) Submit annually to the City Manager and Council, not less than ninety (90) days
prior to the beginning of the budget year, a list of the recommended capital improvements
which, in the opinion of the Commission, are necessary or desirable to be constructed
during the forthcoming three (3) year period. Such list shall be arranged in order of
preference, with recommendations as to which projects shall be constructed in which
year.
(3) Make investigations regarding any matter related to City harbor facilities, tide or
submerged lands. Make recommendations to the Council relative to the care, control,
and development of tide and submerged lands.
(4) Review all City leases of City-owned tide, submerged, and lands or navigable
waters within the City, and as to the planned improvements proposed and make
recommendations to the City Council.
(5) Make and prepare reports and plans for approval by the City Council.
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Title 11
(6) Coordinate public efforts, individual and group, to the effectuation of approved plans.
(7) Shall act in advisory capacity in the selection of a Harbor Director should such a
position be created by the City Council.
Chapter 11.15
TIDELANDS
Sections:
11.15.010 Short title.
11.15.030 Approval and acceptance of State conveyance.
11.15.040 Approval and adoption of subdivision plat.
11.15.010 Short Title.
This ordinance shall be known as the “Kenai Tidelands Ordinance.”
11.15.030 Approval and Acceptance of State Conveyance.
The conveyance by the State to the City, dated January 6, 1977 of tidelands and submerged
lands lying seaward of the City is hereby approved and accepted and the lands therein are hereby
declared incorporated into the limits of the City.
11.15.040 Approval and Adoption of Subdivision Plat.
The Tidelands Subdivision Plat, hereinafter called “Plat” is hereby approved and adopted as the
official Tidelands Subdivision Plat of the City of Kenai, Alaska, of tide and submerged lands
conveyed by the State to the City by conveyance dated January 6, 1977. Said Alaska Tidelands
Survey is numbered 272 and is filed under 76-179 in the Kenai Recording District.
Chapter 11.20
LEASING OF TIDELANDS
Sections:
11.20.020 Lands available for leasing.
11.20.650 Tidelands claims.
11.20.660 Subjection to harbor ordinance.
11.20.680 Provisions regulating public use purpose.
11.20.690 Provision to be included in public use lease.
11.20.700 Public use: defined.
11.20.710 Controlled access.
11.20.720 Use charges.
11.20.730 Maintenance of dock.
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Title 11
11.20.780 Penalties.
11.20.790 Tideland leases for shore fisheries.
11.20.020 Lands Available for Leasing.
All classified tide and contiguous submerged land within the limits of the City to which the City
holds title may be leased for surface use only, and under the condition that said lease is subject
and inferior to preference right claims and subject to the rights of existing set net site holders
within the City limits.
11.20.650 Tidelands Claims.
The City shall lease the subject land subject to any preference rights claims made pursuant to the
provisions of Alaska State 38.05.820 or Ordinance No. 455-78, dated September 5, 1979 of the
City of Kenai, adopted pursuant thereto, and the lessee holds lessor harmless for any damages,
legal expenses, or compensation necessitated by the resolution or satisfaction of said claims, if
any.
11.20.660 Subjection to Harbor Ordinance
All leases are subject to the terms, conditions, and regulations imposed by Title II, Harbor and
Harbor Facilities, of the 1979 Kenai Code of ordinances as amended of which this section is part.
11.20.680 Provisions Regulating Public Use Purpose.
The City Council realizes that only a limited area of tidelands bordering navigable waters are
available within the City of Kenai and which are owned by the City of Kenai. It would be in the
public interest to insure that these lands do not pass out of community control at least to the extent
that the public would not be deprived of harbor services at reasonable rates in the future.
Therefore, areas of City-owned tidelands which are developable for the bona fide public purposes
as enumerated below shall be leased only with the following covenants defined to insure public
use and access at reasonable rates.
11.20.690 Provision to be Included in Public Use Lease.
The following provision shall be included in leases where harbor facilities are constructed to be
utilized all or in part for bona fide public uses.
11.20.700 Public Use: Defined.
(a) Public use shall mean a use limited in part or in whole to the following:
(1) In general, the lessee may use the demised premises or part thereof for any of the
following purposes only:
(i) Public dock facilities.
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Title 11
(ii) Maritime commerce.
(iii) Transportation.
(iv) Fishing.
(v) Boat harbor.
(vi) Port and waterfront development purposes.
(b) Before lessee may conduct any activities which fall under this general criteria, but are
not specifically mentioned above, lessee must obtain written consent of the City.
11.20.710 Controlled Access.
Lessee, for its own protection, may construct or install fences, gates, or other types of barriers to
restrict access to portions of the demised premises that are not designated for a public use and
may provide reasonable controls for access to public use areas to allow for security for such areas
while insuring reasonable public access. Reasonable public access includes accommodations
made for fishing operations during fishing season. Any Controlled Access measures shall be
indicated on the Lessee’s Development Plan.
11.20.720 Use Charges.
Lessee shall make reasonable and non-discriminatory charges to the public for use of any of its
facilities.
11.20.780 Penalties.
(a) It is unlawful for any person to violate any of the provisions of this chapter and upon
conviction thereof shall be fined as provided for violations in KMC 13.05.010. Each day such
violation is committed or permitted to continue shall constitute a separate offense and shall
be punishable as such hereunder.
(b) In addition to or as an alternative to the above penalty provision, the City may impose a
civil penalty in an amount as provided by KMC 13.05.010 per day for the violation of any
provision of this chapter and seek injunctive relief for any infraction thereof for which the
offending party will be charged for reasonable attorney’s fees and costs incurred by the City
as awarded by the court.
(c) Nothing in this section shall be deemed to restrict the City’s exercise of any of its rights
pursuant to the lease agreement including those enumerated in KMC 11.20.220 and KMC
11.20.240 hereof.
11.20.790 Tideland Leases for Shore Fisheries.
(a) Notwithstanding other provisions of the City’s Code of Ordinances the annual minimum
rental rate for tideland leases used primarily for shore fisheries shall be an annual fee as set
forth in the City’s schedule of fees adopted by the City Council. However, should the State of
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Title 11
Alaska set an annual lease rate higher than that established by the City for similar tideland
leases for shore fisheries on land owned by the State, the City may amend the annual rental
to a rate equal to that charged by the State of Alaska.
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Kenai City Council - Regular Meeting Page 1 of 4
February 19, 2020
Kenai City Council - Regular Meeting
February 19, 2020 – 6:00 PM
Kenai City Council Chambers
210 Fidalgo Avenue, Kenai, Alaska
www.kenai.city
ACTION AGENDA
A. CALL TO ORDER
1. Pledge of Allegiance
2. Roll Call
3. Agenda Approval
4. Women’s Voting Rights Day Proclamation
5. Consent Agenda (Public comment limited to three (3) minutes) per speaker;
thirty (30) minutes aggregated)’
*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 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 COMMENTS
(Public comment limited to ten (10) minutes per speaker)
1. Tim Dillon, Kenai Peninsula Economic Development District - Kenai Peninsula
Economic Development District (KPEDD) Update.
C. UNSCHEDULED PUBLIC COMMENTS
(Public comment limited to three (3) minutes per speaker; thirty (30) minutes aggregated)
D. PUBLIC HEARINGS
1. ENACTED UNANIMOUSLY. Ordinance No. 3103-2020 - Accepting and
Appropriating a Grant from the Alaska State Library for Employee Travel and
Training. (Administration)
2. ENACTED UNANIMOUSLY. Ordinance No. 3104-2020 - Accepting and
Appropriating a Federal Grant from the Institute of Museum and Library Services
Passed Through the Alaska State Library for Employee Travel and Training.
(Administration)
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Kenai City Council - Regular Meeting Page 2 of 4
February 19, 2020
3. ENACTED UNANIMOUSLY. Ordinance No. 3105-2020 - Accepting and
Appropriating Two Donations From the Totem Tracers and the Friends of the Kenai
Community Library for the Upgrade of Library Equipment. (Administration)
4. ADOPTED UNANIMOUSLY. Resolution No. 2020-08 - Requesting the State of
Alaska Provide Necessary Funding to the Alaska Wing Civil Air Patrol at a Minimum
of $184,300 to Provide Support for Utility Costs, Insurance Premiums and
Emergency Roof Repair. (Council Member Knackstedt)
5. ADOPTED UNANIMOUSLY. Resolution No. 2020-09 - Supporting the Collection
of Sales Tax from Remote Sellers by the Kenai Peninsula Borough and Other
Municipalities within the Borough, Authorizing the Remote Seller Sales Tax
Commission to Implement, Administer, and Enforce Provisions of the Uniform
Remote Seller Sales Tax Code on the City's Behalf and Affirming the City's Adoption
by Reference of the Kenai Peninsula Borough's Uniform Remote Seller Sales Tax
Code. (Legal)
6. ADOPTED UNANIMOUSLY. Resolution No. 2020-10 - Authorizing a Budget
Transfer in the General Fund Buildings and Non-Departmental Departments for
Building Repairs in Excess of Budgeted Amounts. (Administration)
E. MINUTES
1. APPROVED BY THE CONSENT AGENDA. *Regular Meeting of February 5, 2020
(City Clerk)
F. UNFINISHED BUSINESS
G. NEW BUSINESS
1. APPROVED BY THE CONSENT AGENDA. *Action/Approval - Bills to be Ratified.
(Administration)
2. APPROVED BY THE CONSENT AGENDA. *Action/Approval - Purchase Orders
Over $15,000. (Administration)
3. APPROVED BY THE CONSENT AGENDA. *Action/Approval - Non-Objection to
the Renewal of Liquor Licenses for New Peking Restaurant and Fraternal Order of
Eagles. (City Clerk)
4. INTRODUCED BY THE CONSENT AGENDA/PUBLIC HEARING SET FOR
03/04/2020. *Ordinance No. 3107-2020 - Increasing Estimated Revenues and
Appropriations in the Congregate Housing Funds for Costs in Excess of Budgeted
Amounts. (Administration)
5. INTRODUCED BY THE CONSENT AGENDA/PUBLIC HEARING SET FOR
03/04/2020. *Ordinance No. 3108-2020 - Increasing Estimated Revenues and
Appropriations in the General Land Sale Permanent Fund to Transfer Earnings in
Excess of Budgeted Amounts to the City's General Fund. (Administration)
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Kenai City Council - Regular Meeting Page 3 of 4
February 19, 2020
6. INTRODUCED BY THE CONSENT AGENDA/PUBLIC HEARING SET FOR
03/04/2020. *Ordinance No. 3109-2020 - Authorizing the City Manager to
Reimburse Annual Leave Used by Firefighter Scott Summers for Attending a
Paramedic Internship Program. (Administration)
7. INTRODUCED/ REFERRED TO THE HARBOR COMMISSION /PUBLIC
HEARING SET FOR 03/18/2020. Ordinance No. 3106-2020 - Amending Title 11 -
Harbor and Harbor Facilities, to Remove Provisions that are No Longer Historically
Relevant, Recognize Changes to Other Chapters of City Code That Now Provide
for Lease and Sale of Harbor Lands and Provide the Harbor Commission a Platform
to Move Forward. (Council Members Peterkin and Glendening)
8. APPROVED UNANIMOUSLY. Action/Approval – Second Amendment to
Agreement for Guardian Security Systems, Inc. (Administration)
H. COMMISSION / COMMITTEE REPORTS
1. Council on Aging
2. Airport Commission
3. Harbor Commission
4. Parks and Recreation Commission
5. Planning and Zoning Commission
6. Beautification Committee
7. Mini-Grant Steering Committee
I. REPORT OF THE MAYOR
J. ADMINISTRATION REPORTS
1. City Manager
2. City Attorney
3. City Clerk
K. ADDITIONAL PUBLIC COMMENT
1. Citizens Comments (Public comment limited to five (5) minutes per speaker)
2. Council Comments
L. EXECUTIVE SESSION
1. To Discuss a Request to Purchase Properties Located at 11823 Kenai Spur
Highway, Kenai, Alaska, Also Known as “Anchor Camp Ground,” Pursuant to AS
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Kenai City Council - Regular Meeting Page 4 of 4
February 19, 2020
44.62.310(c )(1)(3) is a Matter of which the Immediate Knowledge may have an
Adverse Effect Upon the Finances of the City, and a Matter by which Law, Municipal
Charter, or Ordinance are required to be Confidential.
M. PENDING ITEMS
N. ADJOURNMENT
O. INFORMATION ITEMS
1. Purchase Orders Between $2,500 and $15,000.
2. Kenai Historical Society - January 2020 Newsletter
The agenda and supporting documents are posted on the City’s website at www.kenai.city.
Copies of resolutions and ordinances are available at the City Clerk’s Office or outside the Council
Chamber prior to the meeting. For additional information, please contact the City Clerk’s Office at
907-283-8231.
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