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HomeMy WebLinkAboutRESOLUTION 2001-63Suggested by: Council City of Kenai ~OLUTION NO. 2001-63 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, SUPPORTING CONVEYANCE OF A CONSERVATION EASEMENT ON THE KENAI RIVER FLATS TO THE STATE OF ALASKA FOR MANAGEMENT BY THE ALASKA DEPARTMENT OF FISH AND GAME; CONSTRUCTION OF A BOARDWALK AND WILDLIFE VIEWING PLATFORM ADJACENT TO BOAT LAUNCH ROAD; AND CONSTRUCTION OF A NEW ACCESS ROAD TO THE CITY OF KENAI BOATING FACILITY. WHEREAS, the City of Kenai has an interest in promoting the protection of and public use and enjoyment of the Kenai River Flats ("Flats"), and supports conservation efforts that will maintain or enhance fish and wildlife protection and use of the Flats; and, WHEREAS, The Conservation Fund desires to purchase a conservation easement ("Conservation Easement") from the City at fair market value on that portion of the Flats located between the Boat Launch Road and the Warren Ames Bridge and containing approximately 500 acres of wetlands (the "Property"); and, WHEREAS, title to the Conservation Easement would be held by the State of Alaska and managed by the Alaska Department of Fish and Game; and, WHEREAS, the Conservation Easement would prohibit development on the Property except for a boardwalk and wildlife viewing platform and other limited projects that protect or othemrise benefit fish and wildlife, and are approved by the Alaska Department of Fish and Game; and, WHEREAS, the Exxon Valdez Trustee Council has indicated that it may be willing to provide $110,000 for the design and construction of a boardwalk and x~ildlife viewing platform adjacent to the Boat Launch Road if the Conservation Easement is conveyed by the City to the State of Alaska; and, WHEREAS, design and construction of the boardwalk and wildlife viewing platform would be subject to Alaska Department of Fish and Game approval and would serve the purpose of promoting public enjoyment of and education about fish and wildlife resources that use the Flats and would protect the habitat of the Flats; and, WHEREAS, The Conservation Fund has agreed to grant an easement through property The Conservation Fund owns for construction of a new boat dock access road from the Bridge Access Road to the City of Kenai Boating Facility parking lot to create additional access to the Boating Facility subject to certain conditions, including that: (i) the road be constructed at no cost to The Conservation Fund; (ii) the gravel pad be removed from the property owned by The Conservation Fund, the gravel from which may be used for construction of the road; (iii) following removal of the gravel, the site of the gravel pad be scarified and fenced so as to promote its successful re-vegetation; {iv) the Conservation Easement be conveyed to the State of Alaska, (v) the boardwalk Resolution No. 2001-63 Page 2 of 2 and wildlife viewing platform be constructed on the Property; and (vi) all easements on the Property be vacated, except for the Department of Transportation Right of Way for the Bridge Access Road and the existing Marathon Oil Company easement. NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that it supports the Conservation Easement, boardwalk, wildlife viewing platform, and new Boat Dock access road. BE IT FURTHER RESOLVED that the City Manager and City Attorney are hereby authorized and directed to negotiate a Conservation Easement on the above-described property owned by the City of Kenai, to be conveyed to the State of Alaska upon satisfactiOn of the following conditions: (i) (ii) (iii) a 50' area adjacent to the West side of the Bridge Access Road right-of-way and a 25' area South of the Boat Launch Road right-of-way are reserved to allow for the City's future needs; The Conservation Fund conveys a road easement from the Bridge Access Road to the City of Kenai Boating Facility as above described; and the Exxon Valdez Oil Spill Trustee Council provides $110,000 for construction of the boardwalk and wildlife viewing platform. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this fifth day of September, 2001. ATTEST: JOHN J. WILLIAMS, MAYOR Carol L. Freas, City Clerk CONSERVATION EASEMENT Kenai River Flats THIS Conservation Easement is made this m day of ,2001, by the City of Kenai, Alaska and its assigns ("City"), whose address is Kenai, AK ~, and the State of Alaska and its assigns ("State") whose address is Department of Natural Resources, 550 West Seventh Avenue, Suite 1050, Anchorage, AK 99501, ("State") under the authority of AS § 38.05.035(a)(12), and for good and valuable consideration. The City and the State are collectively referred to hereinafter as "Parties." WHEREAS, City is the owner in fee simple of certain real property (the "Property") located in the Kenai River Flats at the mouth of the Kenai River, Alaska; and WHEREAS, the Property consists primarily of highly productive wetlands including extensive tidal marshes that provide excellent habitat for numerous fish and wildlife species including particularly waterfowl and shorebirds; and WHEREAS, the City intends to retain the Property substantially in its natural and undeveloped state and desires to convey a conservation easement on the Property to the State; and WHEREAS, the State intends to construct a board walk and wildlife viewing platform on the Property using funds provided by the Exxon Valdez Oil Spill Trustee Council; and WHEREAS, the City intends to restrict the use of the Property pursuant to the terms of this Easement; and WHEREAS, the City intends to convey to the State the right to enforce the restrictions in perpetuity as specified below; and WHEREAS, subject to the rights granted to the State, the City reserves and retains all other rights and privileges as landowner, including certain rights that are specified herein; NOW THEREFORE, pursuant to the laws of the State of Alaska and in particular AS § 34.17.010 - § 34.17.060, the City does hereby grant, transfer, and convey to the State, its successors and assigns, forever, with warranties of title, subject to conditions, limitations and restrictions of record, an easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth ("Easement") as to the real property more particularly described as follows: [legal description] TOGETHER WITH the avulsed lands, if any, in which City may hold title, within the area above described, including but not limited to those lands that may have been uplifted or subsided in the earthquake of March 27, 1964. Draft Conservation Easement; Kenai River Flats Page 1 of 7 August 24, 2001 Section 1. Purpose. The purpose of this Easement is to ensure that the suitability of the Property for wildlife habitat and its natural and undeveloped state will be maintained in perpetuity. This includes the protection of environmentally important areas and the promotion of fish and wildlife habitat conservation and other conservation opportunities such as the protection of important scenic, cultural, fish, wildlife and recreational resources, riparian areas, and other ecological values. Consistent with the specific provisions of this Easement, the Parties intend that this Easement will confine use of the Property to such activities as are compatible with the preservation of the fish and wildlife populations using the Property. Section 2. Rights Conveyed to the State. To accomplish the purpose of this Easement, the following rights are conveyed to the State: a, To enter upon the Property in order to achieve the purpose and enforce the terms of this Easement. bo To prevent any use of the Property that is inconsistent with the terms of this Easement. Co do To prevent any activity on or use of the Property that is inconsistent with the purpose of this Easement and, in the event the Property is damaged by any inconsistent activity or use, to require the restoration of such areas or features of the Property at the sole cost and expense of those responsible for the damage. The right to allow public access on the Property. Section 3. Prohibited Uses ao RESTRICTED ACTIVITIES: The activities listed below are prohibited on the Property except as determined to be necessary for conveying information to the public to protect public safety or natural resources, or for research or management of the Property consistent with the goal of maintaining the land in perpetuity for conservation and wilderness purposes. Determinations under the provisions of this section shall be made by the State of Alaska Department of Fish and Game or its successor in administrative function. constructing or placing improvements, including but not limited to buildings, fixed or improved camping accommodations, mobile homes, fences, boardwalks, viewing platforms, billboards or signs other than those signs for boundary, trespass, direction or general information, except as provided in Section 2. of this Easement; ii. changing the topography of the Property in any manner except as reasonably necessary to construct the improvements authorized by Section 2. of this Easement; Draft Conservation Easement; Kenai River Flats Page 2 of 7 August 24, 2001 iii. Vo vi. removing or destroying plants except for subsistence uses or medicinal uses and except as reasonably necessary to construct the improvements authorized by Section 2. of this Easement; using biocides; manipulating or altering natural water courses, shores, marshes or other water bodies or activities or uses detrimental to water purity on the Property except as reasonably necessary to construct the improvements authorized by Section 2. of this Easement; and operating motorized vehicles, except as reasonably necessary to construct and maintain the improvements authorized by Section 2. of this Easement. bo PROHIBITED ACTIVITIES: The following listed activities by any person are prohibited: removing or harvesting timber, including but not limited to, all standing and downed timber, logs, inventory, lumber, and any other goods or products obtained or derived from the forest, now or in the future, except as reasonably necessary to construct the improvements authorized by Section 2. of this Easement; ii. introducing fish, wildlife or plants not indigenous to Kenai Peninsula, Alaska, including, but not limited to, the grazing of domestic animals or the introduction of reindeer; and iii. dumping or releasing trash, garbage, hazardous substances or other unsightly or offensive material. Section 4. City's Retained Rights and Privileges as Landowner The City reserves, retains and continues to have the following legal rights: a. All legal rights and privileges as landowner that do not unreasonably interfere with or violate the rights and restrictions granted to the State by and through this Easement. bo To the extent it has the right, to use the Property only for purposes related to wildlife viewing, noncommercial fishing, hiking, hunting, kayaking, sightseeing and other similar outdoor based recreational activities. C. To the extent it has the right, to construct, operate and maintain a wildlife viewing platform and board walk on the Property, the location, design and construction of which shall be approved by the State of Alaska Department of Fish and Game. Section 5. Acts Beyond City's Control Draft Conservation Easement; Kenai River Flats Page 3 of 7 August 24, 2001 Nothing contained in this Easement shall be construed to entitle the State to bring any action against City for any injury to or change in the Property resulting from causes beyond City's control, including, without limitation, natural caused fire, flood, storm, and earth movement, or from any injury to or change in the Property resulting from a third party's intentional or negligent act or prudent action taken by City under emergency conditions to prevent, abate or mitigate significant injury to the Property resulting from such causes. Nothing contained in this Easement shall be construed to limit the obligation of third parties for injury or damage to the Property under applicable laws. Section 6. Subsequent Transfers The City agrees to incorporate the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, including without limitations, a leasehold interest. The State may transfer, assign, or delegate any of its rights or responsibilities under this Easement to a third party, but only if the third party is required to and agrees to be bound by and to carry out the purpose of this Easement. Section 7. Enforcement ao In the event either Party becomes aware of an event or circumstance of non- compliance with the terms of this Easement, that Party shall give notice to the other Party, their successors or assigns, at their last known post office address, of such event or circumstance of noncompliance. If the event or circumstance of noncompliance is not corrected immediately, the Party making such notification is entitled to institute suits to enjoin any breach or enforce any covenant of this Easement. bo Nothing in this Section shall limit any other legal rights or remedies available to the Parties. Section 8. General Provisions ao The Parties agree that this Easement is not intended, and shall not be construed, to create any third party beneficiary hereof and that nothing in this Easement shall be construed as creating any rights of enforcement by any other person or entity that is not a party to this Easement. bo This Easement shall be construed so as to effect the purpose for which it was granted to the State. Any ambiguities shall be resolved in a manner that best accomplishes the purpose of this Easement. Ce The provisions of this Easement are enforceable in law or equity by City and the State, their successors or assigns, consistent with Section 8 of this Easement. d° This Easement shall be interpreted under general provisions Alaska law pertaining to real property. eo City is not relieved from liability by this Easement for injuries occurring on, and resulting from, the condition of the Property for which it would otherwise ordinarily be liable. The State shall be responsible for losses, damages, or liabilities arising out of any act or omission of its employees, or its agents to Draft Conservation Easement; Kenai River Flats Page 4 of 7 August 24, 2001 the extent it otherwise would be responsible for such losses, damages, or liabilities under applicable federal or State law. City is not relieved from liability by this Easement for the costs associated with the cleanup of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and similar federal and State laws for which it would otherwise ordinarily be liable. City shall be liable for and hold the State harmless from liability under said statutes, and pursuant to said statutes shall indemnify the State for all costs relating to cleanup, including attorneys fees, of hazardous substances that were released subsequent to the conveyance of the property to City and prior to the effective date of this Easement, and for all releases caused by, or contributed to, by City or its agents subsequent to the date of this Easement, but not for costs for cleanup of hazardous substances that are released by the State. This clause may be enforced by City or the State in a court of law. To the extent any of the lands were oiled as a result of the EVOS, the Parties stipulate and agree that no violation of this clause shall be deemed to occur as a result of the EVOS. go The Parties agree that the covenants, terms, conditions, and restrictions of this Easement shall run with the land and shall be binding upon the Parties and their assigns in perpetuity. The terms of this Easement may be waived or modified only by the written agreement of the Parties. ho City hereby covenants to and with the State, that City is lawfully seized of fee simple in the above described real property, free and clear of encumbrances, except as specified herein, that City has a good and lawful right and power to encumber the same, and that City will forever warrant and defend this Easement against the lawful claims and demands of all persons. If any material provision of this Easement or any application thereof shall be invalid or unenforceable, then the Parties will negotiate, in good faith, such reasonable modifications of this Easement as are necessary to protect the duties, rights and interests of the Parties under this Easement and to carry out the intent of this Easement. The parties make no representations as to whether the lands that are described herein by survey include avulsed lands, including but not limited to those lands that may have been uplifted or subsided in the earthquake of March 27, 1964. TO HAVE AND TO HOLD unto the State, its successors and assigns forever. IN WITNESS WHEREOF, The City of Kenai and the State of Alaska have set their hands on the day and year first above written. THE CITY OF KENAI, ALASKA By: Draft Conservation Easement; Kenai River Flats Page 5 of 7 August 24, 2001 STATE OF ALASKA THIRD JUDICIAL DISTRICT ) ) ssi THIS IS TO CERTIFY that on the__ day of ,2001, me, the undersigned, a Notary Public in and for the State of Alaska, commissioned and sworn, personally appeared to me known to be the identical individual described and who executed the within and foregoing CONSERVATION EASEMENT as of the City of Kenai Alaska, the City that executed the within and foregoing instrument, and acknowledged to me that he signed the same as of the City of Kenai, Alaska in the name of and for and on behalf of said City of Kenai Alaska, freely and voluntarily and by authority of its City Council for the use and purposes therein mentioned. IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the day and year first above written. Notary Public in and for the State of Alaska My Commission Expires' STATE OF ALASKA Pursuant to AS § 38.05.035(a)12, I do hereby accept title to the above described interest in real property on behalf of the State of Alaska for management by the State of Alaska Department of Fish and Game. By: Marty K. Rutherford Deputy Commissioner STATE OF ALASKA ) ) SS. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on the day of ,2001, at Alaska, the foregoing instrument was acknowledged before me by Marty K. Rutherford, known to me and to me known to be the person she represented herself to be, as Deputy Commissioner of the Department of Natural Resources of the State of Alaska on behalf of the State of Alaska. GIVEN UNDER MY HAND and official seal the day and year last above written. Notary Public in and for Alaska My commission expires' Draft Conservation Easement; Kenai River Flats Page 6 of 7 August 24, 2001 Location Index: Return to: Alex Swiderski 1038 West Fourth Avenue, Suite 200 Anchorage, AK 99501 NO CHARGE, OFFICIAL STATE BUSINESS Draft Conservation Easement; Kenai River Flats Page 7 of 7 August 24, 2001