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HomeMy WebLinkAbout1987-03-04 Council Minutes-J� AGENDA KENAI CITY COUNCIL - REGULAR MEETING MARCH 4, 1987 - 700 PM PLEDGE OF ALLEGIANCE A. ROLL CALL 1 Roll Call 2. Consent Agenda *All items listed with an asterisk are considered to be routine and non -controversial by the Council and will be approved by one motion. There will be no separate discussion of these items unless a Council member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequenceon the agenda as part of the General A:: orders. B. PERSONS PRESENT SCHEDULED TO BE HEARD t10 Min.) C. PUBLIC HEARINGS 1. ordinance 1133-86 Townsite ordinance a. Substitute Ord. 1133 -86 2. ordinance 1185-87 - Amend Kenai Municipal Code Animal control Provisions 3. ordinance 1188-87 - Amend Kenai Municipal Code Encroachment Permits 4. ordinance 1189-87 - Amend Kenai Municipal Code Landscaping/Site Plan 5. Ordinance 1191-87 Amend Kenai Municipal Code Landscaping 6. Ordinance 1193-87 Increas. Rev/Appns Senior Day Care Donations $998 7. Resolution 87-9 - Transfer of Funds - Additional Money, Legal Consulting Charges $4,000 8. Resolution 87-10 - Transfer of Funds - Fire Dept. Roof Repair - $3,835 9. Renewal of Liquor License Runway Loinge coMISSItN/COMMITTEE REPORTS 1. Planning & Zoning 2. Harbor Commission 3. Recreation Commission 4. Library Commission 5. Council on Aging E. MINUTES ;A 1. *Regular Meetinq, Feb. 18, 1987 _.�•�_'-- - _-- ��� � 1. F. CORRESPONDENCE 1. Central Peninsula Mental Health Center - Letter of Tr Support 8J 2. *Sen. Murkewski - ANWR Resolution 3. *Boards & Commissions Chairman Gottehrer - Board -' of Fisheries Recommendation - C. Crabaugh „ 4. Southcentral Health & Planning Inc. - Health 90 t-. Conference in 5. Association for Stranded Rural Alaskans ` Anchorage - Letter of Support T,N 9%... G. OLD BUSINESS 1. Land Swap - Wm. & Jill Burnett alr. H. NEW BUSINESS L� 1. Bills to be Paid, Bills to be Ratified fi! v'ax 2. Requisitions Exceeding ;1.000 3. *Ordinance 1192-87 - Increasing Rev/Appns - Senior Yl , -i . Citizen Training Grant - $1,007 f°- 4. Change order #5 - Kodiak Contractors - Main April r Ext. - ($1 440.18) 5. Assignment�of Lease - D. Diamond to C.R. Baldwin - rt, 6. GAA Approval - Library Fee Schedule Amendments 7. Discussion - Lease Extensions & Renewal I. ADMINISTRATION REPORTS Q .Yd 1. City Manager 2. Attorney 3. Mayor 3 . 4. City Clerk J , • t' 5. Finance Director 6. Public works Director .. 7. Airport Manager _. J. PERSONS PRESENT NOT SCHEDULED TO BE HEARD (5 Min.) ADJOURNMENT L s_. L -- Y KENAI CITY COUNCIL - REGULAR MEETING - MINUTES MARCH 4, 1987 - 7:00 PH KENAT CITY HALL MAYOR JOHN J. WILLIAMS PRESIDING PLEDGE OF ALLEGIANCE A. ROLL CALL A-1 Agenda Approval a. Mayor Williams asked that items C-3 (Ord. 1188-87) and C-4 (Ord. 1189-87) be deleted per request of Atty. Rogers. b. Mayor Williams noted some mechani:al corrections were needed on item C-1 (Ord. 1133-86) Councilman Wise asked that item C-1 be deleted till corrections were made. -Tj'i "aa JEw �.,.-:,,<:•,,. C. Mayor Williams asked that item C- (Liquor License - Runway Lounge) be added to the Consent Agenda. Councilwoman Ba-li., asked for an explanation of the fi E difference betweAn iter. C-4 and C-5. Legal Asst. " :y?3i?bi.t• sutcliffe explained, C-4 adds words to Section 14.25; C-5 addresses all corrections made last summer to make `F L` them uniform in the Code. d. Mayor Williams asked that item C-5 (Ord. 1191-87) be deleted for amendments. }$tom e. Mayor Williams asked that item B-1 (Ashley Reed - Lobbyist) be added. Council approved the agenda as amended. A-2 Consent Agenda MOTION: ?u Councilman Wise moved, seconded by Councilwoman Bailie, }4u to approve the Consent Agenda as amended. Motion passed by unanimous consent. B. PERSONS PRESENT SCHEDULED TO BE HEARD B-1 Ashley Reed - Lobbyist � xs TM` Ashley Reed, Ashley Reed & Assoc., Anchorage. Mr. Reed it noted he has one full time person in his office. He is a year-round lobbyist. By hiring a lobbyist, it does 4Js not mean all of the city's problems will be solved or °.T that those people that usually go down will not have to go. It is important to have a full time lobbyist. Thing go fast at the end of the session, there is not :s,t enough time to call the City. Most of the large municipalities have lobbyists and have for years. Now the smaller ones have also. He does lobbying work in Juneau and Washington, D.C. He represents Alascom, Cook Inlet Region, Duty -Free Shoppers, Alaska Pacific Refining, Cook Inlet Housing, Anchorage Refuse ?fifi. Collectors, North Slop Borough, trade &professional .`4 organizations. He has been involved in politics most of his life. He moved to Anchorage five years ago. ' Councilman Ackerly asked, how much? Mr. Reed replied, .. r •� �• KENAI CITY COUNCIL MARCH 4, 190 Page 2 he is not allowed to take contingency. He would be willing to work with Kenai to get his foot in the door. He makes from $20,000 to $100,000. He talked to Mayor Williams at $20,000 for the rest of the session and to the end of the fiscal year. He would include in the contract $2,000 per month for renewal. The City should consider hiring on an annual basis. There will be moneys from agencies with grants, budget cycles go from old to new without stopping, it allows the City fathers and lobbyists to know each other better. He would hope to prove his worth in a few years and come back for a higher salary. Councilman Ackerly asked if it made any difference if there is a Democrat or a Republican in the Governor's office. Mr. Reed replied, he is a Democrat. He has learned if you want to be a lobbyist, you have to work with both sides - he does that. Councilman Ackerly asked, does he think this diminishes his effectiveness? Mr. Reed replied, in Washington D.C. he gets along very well with all of them. You have to work with whoever is there. Mayor Williams noted Mr. Reed has been involved with fund raising activities with both parties. Councilman Ackerly noted he would be representing the City's interests and lobbying with people other than those representing the Peninsula. Mr. Reed replied yes, the Peninsula delegation always tries to be responsible to this district. He would hope he can work with this delegation and contact other legislators to get our voices heard. Councilman Ackerly asked, what if we had a different viewpoint when he represents more than one client? Mr. Reed replied, if that came up, he would discuss it with the City Manager and work it out. He is careful to pick his clients, it is important to have a good mix. He represents the North Slope Borough, he thought their interests and the City's would be close. The only difference would be capital projects. With a good mix, you have the ability to put together a good faction, and you know your voice will be heard. He added, what goes on in Juneau is not necessarily what you think has happened or what is in the papers. If someone is there all the time, there are opportunities that can be seized. It provides a good sense of networking. He encouraged Council to contact his former and current clients. Councilwoman Monfor said she was excited at the prospect. He would be "Johnny -on -the -Spot." We are seeing a financial crisis. We know we have done everything right, we could use this little push. It would be money well spent. Councilwoman Bailie added, we should at least try. She has talked to Homer and Seward, they were enthusiastic. Juneau has two, they are right there, too. Mr. Reed noted Juneau has part time legislators and cannot be there every day. Seward has done very well with theirs. Councilman Wise suggested Administration prepare $20,000 appropriating ordinance and Atty. Rogers meet with Mr. Reed to work out a contract. Councilwoman Monfor added, haste is important. Council agreed to the suggestion. Mayor Williams asked Mr. Reed to prepare a list of clients and submit it to City Manager Brighton. He added, he and Mr. Brighton will be in Juneau next week and will meet with Mr. Reed there. C. PUBLIC HEARINGS C-2 Ord. 1185-87 - Amend. KMC - Animal Control Provisions Cs.�4yy L >t jyi F rYf KENAI CITY COUNCIL t - MARCH 4, 170 I � � qg Page 3 - x MOTIONS a 'y zk fi Councilman Ackerly moved, seconded by Councilwoman Vo HAM _ Monfor, to adopt the ordinance Y R.• f� 34F�' ci:.fsi'I{�.- •�.-�.s;'-rfr=``t;c Ly-L '�GS There was no public comment. ' Councilman Ackerly asked if we have to define an Y� unreasonable act. Legal Asst. Sutcliffe replied, he , has enforced this in Oregon, the Courts can identify Motion passed unanimously by roll call vote.,,,, ,;i•c ray- %'�4.`,iZ, rf..g� • 7.s.ls #['a .i�cNp �� "v4 y tkty C-6 Ord. 1193-87 - Increas. Rev/Appns -Senior Day Care ._=, _ Donations - $998 f �.' ��:":P.GSI V.:J�uY•:eL.cTy`rir'il ..,V5'..; .9-_-�. -rt.'Tiy'' '%3Ji•-: :`. ',: n:.:,. ,..:+.;: r;BV;. i�,�1u_'•Ey E Y MOTION:•. Tt Councilman Measles moved, seconded by Councilwoman lT' P z rn Y ty Monfor to ado t the ordinance. , There was no public comment. ,{f+F �'' a �. i �r�l'i�"r� � :1 F - ' c l-*- i ate• "0 Motion passed unanimously by roll call vote. C-7 Res. 87-9 -Transf. . of Funds - Addtl. Money, Legal F asp atw t. ,tr i G Consulting Charges - $4, 000 sfa+3K MOTION: � Councilman Ackerly moved, seconded by Councilwoman�r¢ J v a `ntl.nyY, �m F.t7 , Monfor, to adopt the resolution. A. There was no public comment. r i J �• t Councilman Wise noted this is taken from contingency to,; legal dept. The action taken before was moving money E sit from legal dept. We are putting more money in legal }; r. 'mk dept. than is needed. Legal Asst. Sutcliffe explained Y " 5 it is for prospective billings we may be getting back. tY Councilman Wise noted he did not argue the cause, but the statement in the resolution is wrong. Finance Director Brown explained, the money transferred earlier f� in salaries is no longer available, it went to the x µ x r{� Legal Asst. when the Atty. was gone. Councilman Wise said that money was to up -grade the position. Mr. L _ `eft 'zze?' Brown explained, it was not awarded. When the t, 4. t� ordinance on the acting position was passed, we did not 3 ,< have to have a supplemental ordinance because of what we had done earlier in the year. ni Motion passed unanimously by roll call vote. x C-8 Res. 87-10 -Transf. ; o.. Funds -Fire Dept. Roof Repair - $ 3 , 8 3 5 MOTION: S4 `. iL ' ` Councilman Ackerly moved, seconded by Councilwoman Bailie, to adopt the resolution. .-' ¢P rr There was no public comment. 'zx. Councilman Wise asked if there was any other winds r damage in the City. P;blic Works Director Kornelis replied, quite a bit in the water &sewer dept. because of the power fluctuations. There should be enough in y, k ' the budget. The furnace in the Rec Center needs work. ' .5 T—•� M�}'h .,�. s�.rr .._.. . . . ._ ._.....r_�..�.....w- .. '�-:...n�'" `.=•, 4IT 'v l�L•.pHi bits �.vvgva+. MARCH 4, 1987 17MUMT ;2'014 Page 4 Councilman McComsey asked if we had insurance to cover this. Finance Director Brown replied, $25,000 deductible. Motion passed by unanimous consent. C-9 Renewal of Liquor License - Runway Lounge Appoved by Consent Agenda. D. COMMISSION/COMMITTEE REPORTS D-1 Planning & Zoning None D-2 Harbor Commission Public Works Director Kornelis reported they had a work session and reviewed the budget for the boating facility fund. D-3 Recreation Commission None D-4 Library Commission None D-5 Council on Aging Councilwoman Bailie reported their meeting will be March 30. ADDED ITEM: Beautification Committee. Councilwoman Bailie reported the Rotary Club said they will work with the Triangle Park, they had 300 man hours. E. MINUTES E-1 Regular Meeting, Feb. 18, 1987 Approved by Consent Agenda. F. CORRESPONDENCE F-1 Central Penin. Mental Health Center - Letter of Support Councilwoman Bailie noted there is no mention if they are taking a cut. Mayor Williams suggested sending them a standard letter of support, based on present levels. Council agreed to the suggestion. F-2 Sen. Murkowski - ANWR Resolution Approved by Consent Agenda. F-3 Boards & Commissions Chairman Gottehrer - Board of Fisheries Recommendation - C. Crabaugh Mayor Williams noted the Board of Fisheries has completed the appointments, there was no appointment from the Peninsula. Councilwoman Monfor noted there is no set netter on the Board. Mayor Williams said he r i r— t, W MAT rT'PV COUNCIL MARCH 4, 1987 Page 5 would bring this to the Governor's attention at the meeting March 5. F-4 Southcentral Health & Planning Inc. - Health 90 Conference Councilwown Monfor suggested the Borough send a representative. Council agreed to the suggestion. F-5 Assn. for Stranded Rural Alaskans in Anchorage - Letter of Support Council agreed to send a standard letter of support, based on present levels. G. OLD BUSINESS G-1 Land Swap - Wm. & Jill Burnett Mayor Williams reviewed the packet material: 1) There is no lease agreement now in existence with Morgans concerning the additional 40 acres. 2) There is no valid perfected public use agreement presently existing as a result of Ord. 870-83 on behalf of the City or Burnetts. This ordinance only allows Burnetts to proceed with perfection of said right-of-way. 3) The perfected public use easement must be obtained by Burnetts by using the establisned City & Borough procedures - including the surveying of proposed easements, platting and presenting to the City & Borough for apprcval, and finally the recording of the approved documents for proper validation or perfection of the easements. 4) No portion of the above action or cost of the same need be borne by the City. 5) And this is his own supposition - At this time the City has no position, and needs to do nothing on behalf of either Morgans or Burnetts. 6) And this is his own supposition - We need only suggest to Burnetts that they perfect the easement as it exists if in fact we do not desire to enter into a land trade agreement with them. Councilwoman Bailie said, in order to perfect the agreement they had, Mrs. Burnett said she had to have an original copy of the ordinance, the City said she could not have this. Public Works Director Kornelis explained, Mrs. Burnett was trying to record the ordinance. The ordinance allows her to perfect an easement. Public Works Dept. handles this by drawing up a legal document, the property owner signs an easement stating conditions, the City records that original document. Legal Asst. Sutcliffe agreed, recording an ordinance would not do this. You need an easement. The ordinance gave her the right to perfect an easement. Councilman Wise noted that does not answer Councilwoman Bailie's question. Why wasn't the original copy of the ordinance provided to Mrs. Burnett? Mayor Williams replied, it does not have to be recorded. Councilman Wise said Council wants to know why it wasn't provided for her. Legal Asst. Sutcliffe replied he did not know, but you cannot record an ordinance. Councilman Wise stated anything can be recorded. Mayor Williams replied, many documents are not recordable. He had a talk with Mrs. Burnett and he stands by his statement that the perfected public use easement must be obtained by Mrs. Burnett, with permission of the City granted by Ord. 870-83. She must hire a surveyor, determine the metes & bounds, draw the plat, present it to the City & Borough Planning Commissions. Once it is approved and signed, the document is recorded. Councilman Wise •�J KENAI CITY COUNCIL v `rn J. A 1QQ7 198 Page 6 noted Administration refused to provide the ordinance for her to attempt to record. Mrs. Burnett implied she felt this would be the easement. The Recording Office would have told her it was not, but she was stopped by Administration. Had she been permitted to try, it would have become apparent that it's not the way to perfect it, we wouldn't have stalled this Council, and the action would have been in for three years. Mayor Williams replied he found it very unfortunate that the matter wasn't taken care of in a timely manner, he did not know where to place the blame aside from the fact the she should have been advised by someone as to the proper procedures. Jill Burnett, 1304 Kiana Lane, Kenai. Hot only was information not given to her, she was given four separate sets of information by Administration on how to get this perfected. 1) Jeff Labahn, Land Manager at the time, said all that was needed was to get approval of the State and Federal agencies. If no land swap was involved - because of it being in parklands - there was no need for survey and no cost. Approval was obtained. 2) After the option to lease with Dick Morgan was made, Atty. Rogers told her to record the ordinance. She was not told to survey and record a plat. She was told that because she had not done that, she had no road and no complaint. 3) On Jan. 25 she received a memo from Public Works Director Kornelis that said she needed a closed loop survey, grant of easement (signed, notarized and recorded). 4) She talked to Mayor Williams, he said it should be surveyed, recorded and platted through the Borough. It has been four years of trying to find out what she was supposed to do, not being allowed to do it, and being put under considerable hardship because it was not permitted or provided. What are the legal requirements? She appreciated the support Council has given her. The community has been aware of the problem because it has been in the papers. They have suffered extreme damages through the four years, and have been put to over $55,000 worth of additional expense due to the mishandling by the City for that period. when they originally got the rights to the road, they were told they would have to up -grade the City road at their own expense for the City to mainta9n it. It was estimated at around $60,000 at that time. They are now $55,000 and four years later, having missed the real estate market, and still have to improve the road, if they can afford it. Now they are being told they have to do a survey, besides paying for the survey and platting and other documents. So she is submitting to Council: 1) What is required to get the road perfected? 2) She contacted McLane Surveying regarding cost, they estimated $1,200 to do survey, platting, etc. Even though that was not the original intent of Council, she thought that was the least the City could do by way of reparation for all the damage that's been done. Mayor Williams asked Mrs. Burnett to explain the $55,000. Mrs. Burnett replied she did not have the breakdown, but they have had legal fees. If this had not come to resolution, they were ready to sue the City. They have excess interest and taxes they would not have had to pay had they been able to market their land at the time. They are continuing to make huge payments, now it's not marketable, nothing is moving in real estate. They will be saddled with these payments indefinitely, the interest was unforeseen in gauging the investment to begin with. When you get something like this, that holds you up for four years, not only does it devastate 1 4- !w- =- y ;; KBNAI CITY COUNCIL Page 7 the profits for your project, but also your personal finances. You have to throw everything away that you've put into it, or carry on till the situation gets resolved. Mayor Williams noted it would appear that it is necessary that a surveyor be hired and the matter be done according to normal procedures. A plat is taken to the City & Borough Planning Commissions, the Borough provides acceptance on receipt of funds and records the plat for her. Mrs. Burnett replied, she would have done this had she been given that set of instructions four years ago. Than she would still have most of the $55,000. She feels at this point the moral justice of the matter demands the least the City could do is care for the expense of getting it platted and recorded. MOTION: Councilwoman Bailie moved, seconded by Councilwoman Y`Y=° Monfor, that the City take care of platting and surveying of this matter. Mayor Williams explained, Ord. 870-83 must be �z�$.�•= rescinded. In rescinding the ordinance we rescind the 3 i T right to plat that street. Anew ordinance will have to be instituted allowing them the right to plat the street and including the costs of that. He asked Legal f{K:z;.ur Asst. Sutcliffe, if we rescinded the ordinance, how does this affect us with Morgans? Legal Asst. ..���•,; Sutcliffe replied, it would not affect us now because -<� he only has an option to lease and he hasn't exercised x--' that yet. He suggested we could just do an agreement r- with Burnetts. Public Works Director Rornelis -` explained, originally this was set up as an easement we are talking for access to Burnett's property. Now l about public dedicated right-of-way. We can re -plat extending �.¢ our land and put a dedicated public road Candlelight. Mayor Williams explained the ordinance specifically states we will not bear the cost of 4` surveying, etc. Mrs. Burnett noted the ordinance says, r "The City shall not assume responsibility for the up -grading and maintenance of said easement unless authorized by Council, nor cost of perfecting this heard from easement." Mayor Williams noted we have not Morgans regarding the golf course. Adman. Asst. Gerstlauer stated the City has received a letter from Dick Morgan asking to exercise his option. If he does that he will be required to sign the plat. Mayor �s4 Williams noted he does not have an option at this time. NOTE: No action taken on the motion. MOTION, Reconsideration: ,4 x r Councilman wise moved, seconded by CouncilwomanBailie, =k.r for immediate reconsideration of Ordinance 870-83. _ — Mayor Williams asked Legal Asst. Sutcliffe if the reconsideration would affect the City's position. Mr. :_<.,.. Sutcliffe replied, he is not sure how it would affect the lease option that Mr. Morgan has. He would like a «_z chance to review the legal ramifications. He did not "t k,%:7 � know what would happen if this ordinance was rescinded. <::- n �• But given the amount of money involved and the :u4 - �: '. potential amount of money in the golf course, it should not be taken lightly. Mayor Williams asked if the �* reconsideration takes effect immediately upon the vote. Mr. Sutcliffe replied if they reconsider and took no action, there would be no problem. But if any action ;;•; ,. v was taken, it might affect the lease option. He did _ V !' KENAI CITY COUNCIL Page 8 not know if it had been reconsidered before. The Code provides only one reconsideration. Councilman Wise noted the ordinance was effective Aug. 1983. It established a commitment by Council to provide access. That commitment, whether perfected or not, indicates the Burnetts have a basis for legal recourse, not withstanding the lease option to Morgan. The Morgan lease is not germane. This pre -dates Morgan's interest in the golf course. He wanted to delete one minor phrase which will enable us to move this project forward. It would be the last phrase in the ordinance, "Further, the City shall not assume responsibility for the up -grading and maintenance of said easement unless authorized by the Council, nor cost of perfecting this easement." Councilman Wise explained he would delete the last phrase ("Nor cost of perfecting this easement.") He would suggest the City assist Burnetts in perfecting the easement through financial support. Councilman Ackerly asked Mr. Sutcliffe if this changes his opinion of looking at it longer. Mr. Sutcliffe replied, it does not seem to be a problem, but given the severity of the problem with Morgans, he would like to bring it back to the March 18 meeting. Mayor Williams noted his primary concern is the potential of another lawsuit for the City. Mr. Sutcliffe noted particularly in light of the fact that Mrs. Burnett has said she's been talking to an attorney about the possibility of suing the City. Councilwoman Monfor noted the Burnetts were here before we dealt with the Morgans. But Mr. Morgan has stated he does not want a road going through his golf course. How could we not be opening ourselves to a lawsuit? Mayor Williams explained, he only has the first right to refuse an option granted. He does not have the option at this time. Councilwoman Monfor noted he is not here and is not represented. Could that be a concern? Mr. Sutcliffe replied, it could cause a problem. Public Works Director Kornelis noted there will have to be an appropriating ordinance, that would give us enough time for the Attorney to review. Mayor Williams reviewed Atty. Rogers' memo of Jan. 20, 1987. "Thus if prior to the lease there was a valid perfected public use easement established, it is arguable that the lessee would take subject to that public use easement." There is an arguable point that Mr. Morgan has been denied the right of original intended lease. Mayor Williams reviewed the legality of the motion to reconsider. He read KMC 1.15.060 (g). Council agreed it was too late to reconsider the ordinance. Councilwoman Monfor noted when the golf course lease was being worked up Mr. Morgan must have known that this potential problem was there and has never been resolved. Councilman Measles asked if the minutes could be reviewed, he thought this was pointed out to Mr. Morgan at one time. Mr. Morgan had said it would not create a problem for him with what he had in mind. MOTION, OUT OF ORDER: Mayor Williams declared, on the basis of KMC 1.15.060 (g), that the motion to reconsider was out of order. NOTE: Action to follow was treated as a motion. Councilman Wise said, rather than a motion, he asked for Council concurrance to direct Administration to prepare an ordinance amending Ord. 870-83 deleting the KENAI CITY COUNCIL MARCH 4, 1957 Page 9 last phrase, "nor cost of perfecting this easement." Mayor Williams noted the ordinance will not take place for 30 days after public hearing." Also, there is money available to cover the cost of that perfection. Councilwoman Bailie stated she seconded the motion. Mayor Williams noted, in reviewing the Clerk's files, there is no evidence of a conversation with Mr. Morgan. He suggested it may have been during a work session when no minutes were taken. Mayor Williams declared unanimous consent to the motion. H. NEW BUSINESS H-1 Bills to be Paid, Bills to be Ratified MOTION: Councilman Ackerly moved, seconded by Councilwoman Monfor, to approve the bills as submitted. Councilwoman Monfor noted the return on investments is not much. She asked if we could invest to make more money as the Permanent Fund does. Finance Director Brown explained, they use the stock market. Councilwoman Monfor asked if we need the money now. Mr. Brown explained, these are short term CD's. Normally with a larger amount, we get 6%. The only way to increase our return is to increase the risk. Council has passed a resolution not to do this. Motion passed by unanimous consent. H-2 Requisitions Exceeding $1,000 MOTION: Councilman Ackerly moved, seconded by Councilman Measles, to approve the requisitions as submitted. Councilwoman Bailie asked about the Kraxburger Drilling bill on the boat facility. Was that a separate contract? Public works Director Kornelis replied yes, they had trouble with the well. They will drill an 8" well that will produce 100 gallons per min. He guarantees we will not pay if it does not produce. Councilwoman Bailie asked if there is a rebate from the original contractor. Mr. Kornelis replied we have been negotiating. He says there is no water there. It will depend on Kraxburger. Public Works Director Kornelis noted the Northwest Mack Inc. bill for the rebuilt engine. This is for a 1972 Mack pumper truck for the Fire Dept. They have a real problem. There will be an ordinance for repairs at the next meeting. This zeros out the account. Mayor Williams noted the shop is way over budget because of major repairs. Mr. Kornelis reviewed the repairs. Councilman Ackerly asked if there was a warranty on the engine. Mr. Kornelis replied it is not available to replace, this is a rebuilt. It is a $175,000 truck, the rest of it is good. Motion passed by unanimous consent. H-3 Ord. 1192-87 - Increas. Rev/Appns - Senior Citizen :-3 r— Y40Taf CITY COUVf`TT. MARCH 4, 1987 Page 10 Training Grant - $1,007 = Approved by Consent Agenda. H-4 Change Order N5 - Kodiak Contractors - Main Apron Fact. - ($1, 440.18 ) Councilman Ackerly noted it was initiated Oct. 1986. - r- -�` Why is Council getting it now? FAA should have paid for this, they said to dig it. Public Works Director 4� '- +�"°,.� Kornelis explained, this is finalizing the change .� order. we have had to negotiate with the contractor. Most os the items are communication cables not marked = ;j; on the drawings. Regarding FAA paying for it, he did KA-.__; not know if they have been billed. The City is responsible to the contractor. We can bill FAA. The reason for the credit is the last item (pavement repair). The pavement was out of specs. There have r.,. been claims disallowed. Councilman Ackerly asked, now will we have as-builts on the airport cables? Mr. Kornelis replied, the as -built would show cables we know of. There will probably be others. Councilman Ackerly asked if they could be located with detectors. Mr. Kornelis replied, some of them. MOTION: Councilman Wise moved, seconded by Councilwoman Bailie, to approve the change order. VOTE (Passed): Yes: Monfor, Bailie, Measles, Wiliams, Wise, Mccomsey No: Ackerly -i H-5 Assign. of Lease - D. Diamond to C.R. Baldwin - GAA =T NOTION: Councilman Ackerly moved, seconded by Councilwoman .,".•: to-: . Bailie, to approve the assignment, subject to conditions mentioned. Councilman Wise asked why the amendment was dated Jan. 1986. Admin. Asst. Gerstlauer explained, when this came to Atty. Rogers, he had questions regarding use. There was a meeting with FAA to discuss it, FAA wanted it used for airport use. They said it would be acceptable, it has been in the Attorney's office since. Mayor Williams noted Legal Asst. Sutcliffe said there is no difficulty with a notary signed one year ago. Motion passed by unanimous consent. H-6 Approval - Library Fee Schedule Amendments MOTION: Councilman wise moved, seconded by Councilwoman Monfor, to approve the fee schedule. Motion passed by unanimous consent. H-7 Disc. - Lease Extensions & Renewal Mayor Williams asked if there is any date for the FAA move. Public Works Director Kornelis replied they will be ahead of schedule on construction. But after the work is done, it will be awhile before the electronic t ► KENAI CITY COUNCIL _y- ^ MARCH 4, 190 t Page 11 gear is in the building Then they have to operate continually with both situations for one year. MOTION: pus f Councilman Ackerly moved, seconded by Councilman Wise, ,.�. that the Concorde and Runway Lounge be granted one year extensions, with expiration the same. MOTION, Addition: f .rF•:. Mayor Williams suggested a June 30, 1988 date. MOTION, Addition: y' Councilman Wise suggested authorizing Administration to .-= extend the lease. MOTION, Addition: Legal Asst. Sutcliffe suggested this be conditional on them being current on the rent. Council agreed to the additions. Mayor Williams asked if there was a time period. Airport Manager Ernst replied in one year we can decide where they are. We do not know at this time. He talked to them this date, they plan to move in when it is available. They do not have the equipment yet. ADDED ITEM: }� Councilwoman Bailie asked if Airport Manager Ernst had heard anything regarding the reconsideration of :u consolidation. Mr. Ernst replied he has not. Councilwoman Bailie noted they said they were going to wait till the end of the year. Mr. Ernst noted he did not see that would affect the Kenai switchover. ` = Councilwoman Hailie explained, the influx of people would be affected if they are not consolidated. Mr. ` •;: �` Ernst said he would check again. VOTE: Motion passed by unanimous consent. JACKSON LEASE, CIIAP: Mayor Williams said, when we create leases, we create the value of the land. Do we want to utilize the land as it is being utilized? He noted the lease expires June 30. Councilman Wise suggested no motion be made, Mr. Jackson will re -apply when it expires. At that time it will go to P&Z and to Council. Council agreed to the suggestion. I. ADMINISTRATION REPORTS I-1 City Manager Acting City Manager Brown spoke. a• The preliminary 87-88 budget was distributed. He reviewed the highlights: It is $700,000 less than last year, there are cuts in all departments. They are proposing a 2-1/2 mill rate, less than 8 #,%Tniv rmfureTT- MARCH 4, 1987 Page 12 last year. Sales tax levy is the same, there is no increase or decrease in staff, there is no Z71 7-1 reduction in services. $2/3 Million is well *t within safety range, they are not tapping the fund balance. He will propose budget work sessions at _V.,xi R, zu -0-' . the March 18 meeting. Mayor Williams commended Administration on their work. To 3 b. Regarding item info 23, Salamatof Seafoods request for fish tax money. Councilwoman Bailie noted Kenai is the only 1st class city in the State that is not its own borough. The State takes 1/2, the Borough takes 1/2. Kenai will will have to divide with the Borough. All others will get their full 50%. They should be aware of that fact. Mayor Williams said City Manager Brighton is going to ask for an amendment to the distribution formula. He added, he will bring it to the Legislature next week. Councilman Ackerly asked, what is the amount of fish tax collected? Finance Director Brown replied, about $150,000. The 1st year we gq would lose $25,000, the 2nd $25,000, the 3rd A K;- $8,000. Councilman Ackerly asked if the rest of the capital improvements would have to be raised privatelyreplied, that is what the . Mr. Brown City would lose. Some would be State credit and - L '1, some with their owr sources. Tom Reed, Comptroller, Salamatof Seafoods. When 4. he reviewed this, he thought the City had to grant them the funds, but it is voluntary. Salamatof is the only one asking for a grant for this credit. e - R1 The Code says if a municipality agrees to it. You have to look at the long range implications of what it will do for the community. If every fish processor applied, it would affect the City. Councilman Wise asked if he had applied to the Borough. Mr. Reed replied no, when he files fish tax, he states they are in the City. He was not aware they went to the Borough. Councilman Wise said he would be more willing to consider if the Borough would consider. Mayor Williams noted the Borough does not have the same authority to grant that the City does. There is no provision in State Statute to support them, only in organized cities. We could not give Salamatof the money if we wanted to because of time restraints. Mr. Reed noted they were the first to try. They will contact the Legislature and ask them to look at contingencies. There are other canneries. They may petition in the future. Mayor Williams said he will ask Harbor Commission to review. Councilman Ackerly asked that a copy of the information go to the Economic Development Commission. Councilwoman Bailie asked if he could re -apply. Mr. Reed said he will check. 1>,.=91 No action taken by Council. 1-2 Attorney None 1-3 Mayor Mayor Williams spoke. a. He nominated Dennis Simmons for Library Commission. council agreed to the recommendation. -;,; 3 a� ; r ! ► - KBNAI CITY COUNCIL MARCH 4, 1987 Page 13 b. He noted the appointment to the Airport Commission at the Feb. 18 meeting was for Tim Miller, not Tim Martin. C. There will be a meeting with the local Legislators March 16. d. There will be a meeting with DNR representative N. Johannsen on March 18. There will be refreshments. e. He will be going to Juneau March 10 to 13. f. Councilwoman Bailie noted there are two openings for the Beautification Committee. Mayor Williams explained, Mr. Lewis wants to continue serving, but he will replace Mrs. Nelson. I-4 Clerk Clerk Whelan spoke. a. She will be attending the Clerk's Seminar in Anchorage March 23 to 27 and teaching classes in Pre -Clearance and Microfilming of Records. b. She reminded Council of the Borough Tax meeting March 17. I-6 Public Works Director Public Works Director Kornelis spoke. a. Regarding the grave digging contract (material distributed this date). Mr. Cinereski has agreed to do this for the City at the same cost that we charge. Councilwoman Bailie asked, from now on, no funeral home will have to dig their own grave, they will go through the Clerk? Mr. Kornelis replied yes, the person pays for the plot before the action is done. This can be done by Po. Councilwoman Bailie suggested the City may have to purchase some equipment. Mr. Kornelis replied he will check into this. b. Regarding the petition from Inlet View residents for street lights. He will put a copy of the reply in the March 18 packet. C. Regarding water testing. The next scheduled test is in June or July. They will do an additional inorganic ($200+) and gross alpha ($741). Councilman Ackerly asked if he tested at the well. Answer - yes. Do they spot check? Mr. Kornelis replied, every Monday they do testing by a certified lab, Mike Tauriainen is doing this. our water meets all standards. Councilman Ackerly asked about the discoloration in some areas. Mr. Kornelis replied, it is bacterial, not iron. Mayor Williams asked if they would do a turbidity test. Answer - yes. Mayor Williams suggested a spot check on the line to see why we have discoloration in some areas. Mr. Kornelis replied, it is organic coloring out of the well. It will cost $600 per day to test, Council had decided not to. There was a test done by some people here for the oil companies, they determined it was not economically feasible to correct. It is not harmful. Mayor Williams said it is a major concern of the City, is there any way we can remedy it? Mr. Kornelis replied, we could put package plants in each house, this was done in parts of Juneau. It would be cheaper than doing the whole system - that would be close to $2 Million. Councilwoman Bailie said she purchased a filtering and softening system, it did - - - r `- R �► KENAI CITY COUNCIL MARCH 4 1987 -:'' Page 14 not touch it. Mayor Williams said the first concern is to identify it. Councilman Wise noted well #2 has been on line for 10 years. Technology is changing, just because it could not be done before does not mean it cannot be done now. He suggested it be tested yearly to -ee if something can be done. d. Regarding item Info 17, water to Eagles' Club. He has not had response from DEC yet. e. Councilman Wise noted we have not changed our water fee schedule for many years. Those on meter are at an advantage over those not metered. He suggested a review of the rates. I-7 Airport Manager Airport Manager Ernst spoke :fin: -•--: ` a. Regarding the airport status report (item I-7). The downturn is an indication of the economy. FAA is being bottlenecked regarding the Master Plan r update, float plane basin engineering and lands. 12%. b. Regarding the long term tiedown management plan }z., (item Info 24). Councilman Measles noted the instrument approach shutdown will be 60 days, will that be a problem? Mr. Ernst replied no, 60 days is the maximum. They will be stripping the top 2ah , soil and overburden for fill in the float plane basin safety zone. Councilwoman Monfor asked if we had approved the float plane basin. Answer - yes. Councilman Wise asked, what project are they doing? Mr. Ernst replied, the safety zone in the tiedown area, taxi way, approach to runway 1 - they are taking fill from the float plane basin. =;1w It was always the intent to combine projects to reduce cost. We have not bid for the float plane F; basin, but we are moving ahead with it. We are 5� f committed to the engineering of it. Councilman Wise noted the tiedown fee is $40 per month. What sjF is Soldotna? Mr. Ernst replied, $25. Councilman ... Wise said he did not agree with the $15 Z difference. Mr. Ernst explained, there are $30 to < .y.:. $38 fees with private enterprise. We did not want to compete with them. Councilman Wise suggested this be reviewed by the Airport Commission. Mayor Williams agreed with Mr. Ernst and noted the Kenai airport is worth $15 more to park there. Councilwoman Monfor asked, where did we take the �.�, • fill from for the float plane basin? Is it the 3=:== part that we own? Mr. Ernst explained, we own it vaSj all now. .h�ri'si% t J . PERSONS PRESENT NOT SCHEDULED TO BE HEARD .,='. :r a. Councilwoman Monfor. She noted the High School Academic Declathanon and the girls' basketball team had achieved honors. Mayor Williams said proclamations had been read at Chamber of =~ Commerce. b. Councilman McComsey. There will be a Peninsula Caucus meeting March 7 in Soldotna. He will be unable to attend and asked for a Council representative. Co Councilwoman Bailie. Some of the side streets are icy and could use some sanding. d. Councilwoman Bailie. She suggested minutes be taken of the work session. Clerk Whelan F71 es- explained, she has been doing that for a year now, --_ -- =_ �• FT KENAI CITY COUNCIL ._ LARCH 4, 1987 { 4 r t '7- Page 1 S - F L•-.aa +.�4'j but the Burnett/Morgan situation was before that time. a.(contd) Councilman Ackerly thanked the City for the proclamations for the school. e. Mayor Williams. He and Councilwoman Bailie will be in Anchorage for Alaska Resource Devel. meetings April 2 through 4. ADJOURNMENT: Meeting aad� adjourned at 10:10 PM. ;/ Janet Whelan City Clerk izApM OVID OAS s ;s�rA N: a p i tiyy; 5: _ � S r-- VERBATIM Council Meeting of 3/4/87 Item I-6 - Public Works Report Fil Keith Kornelis: The only other item I had is Info 17, there was some concern about how we proceeded on notifying DEC about the Eagles Club +s and their problems and the letters are in here the regional one that was, a while back, the next one that you all requested. { try' Mayor Williams: Do you have that response yet? rY Keith Kornelis: No, no responses. Mayor Williams: Councilman Wise. Councilman Wise: Talking about water now. If I remember correctly we had Dr. Davidheiser in here asking for essentially a rebate and it becomes clear I think that, again our water rate schedule has not, water and sewer rate schedule has not been adjusted for a number of years, perhaps 7 or 8, its about time we had a re, reviewed and brought up to date, I think, obviously some of the classificiations like rooms and so forth are not really terribly meaningful. At this moment appears that those who are so, able to, particularly the businesses are able to get on a meter, are certainly getting an advantage over those who are not metered. And that includes me because my house is not metered. If I was metered I don't think I'd be paying as much as I do. I think the, and certainly this is the time to start a in-depth review of the water rate, water and sewer schedules for the City and to try and take out some of the obvious inconsistencies. I think its clear from Looking at the budgets over the last several years, is that, right now 1w we're not losing money but on our revenue from commercial accounts is to dropping off because they are getting a little smarter and going meters. It means that then the, the residential customer are paying perhaps more than their fair share, I think its something that perhaps we, might ask our auditors to do a review of, based on other communities within the nation as to how they handle their water and sewage system. We probably don't have the capability in-house to do it, but certainly the auditors, that's what they're paid for to do that kind of special work. I think we ought to ask them for a proposal. Mayor Williams: Thank you for that observation. Ok, airport manager. End of subject. Janet A. Loper = Transcriber ...... ' 'a - .. 7 '. L r f' - - r- W KENAI CITY COUNCIL, VERBATIM MMCH 4, 1987 G OLD BUSINESS G-1 Land Swap - Wm. & Jill Burnett Mayor Williams - This brings us to the old business and we have before us some correspondence from Mr. & Mrs. Burnett concerning the right-of-way of Candlelight Extended. Mrs. Burnett is before us again this evening. I would ask first of all, are there any concerns from the Council? You will, I should point out that you do have a second G-1 packet with you this evening, the result of some errors in the copy machine. With Council's permission I might bring us a little summation of this, how I see things at this point. In reviewing the Attorney's document to us and Burnett's letter, I make the following observations. Number 1, there is no lease agreement now in existence with Morgans concerning the additional 40 acres. Number 2, there is no valid perfected public use agreement presently exists as a result of Ordinance 870-83 on behalf of the City or Burnetts. This ordinance only allows Burnetts to proceed with perfection of said right-of-way: Number 3, the perfected public use easement must be obtained by Burnetts by using the established City and Borough procedures including the surveying of proposed easements, platting and presenting to the City & Borough for approval, and finally the recording of the approved documents for proper validation or perfection of the easements. Number 4, no portion of the above action or cost of the same need be borne by the City. Number 5, and this is my own supposition, at this time the City has no position, at this point, and needs to do nothing on behalf of either the Morgans or Burnetts, as I see it. Number 6, as I see the matter before the Council, we need only suggest to Burnetts that they perfect the easement as it exists if in fact we do not desire to enter into a land trade agreement with them. That's strictly supposition and summation on my part. Further discussion by the Council? Seeing no discussion, I might ask for Council (inaudible). Councilwoman Bailie. Councilwoman Bailie: My only question, I guess, Mr. Mayor, is, in order to perfect this lease agreement or the agreement that we had that Mrs. Burnett (the easement). I understood her to say that in order to do it she had to have the original copy. Mayor Williams: Of the ordinance. Councilwoman Bailie: Of the ordinance. And the City was notwilling to do this, or wasn't able to do this for some reason or other. I'd like that explained. Mayor Williams: Mr. Kornelis. L �- L KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 2 Public Works Director Kornelis: I think what she was trying to do was record the ordinance. What the ordinance does is allows her to perfect an easement. Now when we have an easement in Public Works we have - we probably had 20 of them since I've been here - we draw up a leaal document and we have the metes and bounds of that easement. We go through what the easement's going to be used for and we get whoever owns the property to sign the easement saying that they are willing to give up this property as an easement under those conditions. The property owner signs that easement, the City I'n this case would have it notarized and then that is recorded - that original document. The easement itself is not really the ordinance. Legal Asst. Sutcliffe: That is correct. Just recording the easement wouldn't - you need to have a procedure whereby an actual easement is recorded, an agreement between the two parties. You can't just go and record the ordinance. That wouldn't accomplish anything. In fact the ordinance isn't an agreement, it just gave her the right to perfect an easement through the planning procedures. Public Works Director Kornelis: I have lots of examples upstairs. Councilman Wise: But that doesn't answer the question Mrs. Bailie asked. Why wasn't the original copy of the ordinance provided to Mrs. Burnett so it could be recorded? Mayor Williams: It doesn't need to be recorded. Legal Asst. Sutcliffe: It doesn't need to be recorded. Councilman Wise: We're not, we didn't say whether (inaudible) to do. But the thing is we were understood, and in fact we had testimony by Council, that he wouldn't do it, and we want to know why. Legal Asst. Sutcliffe: I don't know why it wasn't provided to her, but I know that under the Recording Statute you can't, I don't think you can, record an easement, I mean an ordinance. I don't think they will accept it. Councilman Wise: You can record anything. Legal Asst. Sutcliffe: No (Inaudible) Councilman Wise: It has to be an original document. Mayor Williams: I'd like to comment from the Chair. Many documents, or many pages,are not recordable items. There are a lot of items the Recorder's Office will not take. Legal Counsel has indicated to me that a City ordinance per se is not a recordable document. I go back again, having researched the item myself and had a long talk with Mrs. Burnett about it, and I stand by the point that I made that the perfected public use easement must be obtained by Mrs. Burnett, with permission of the City granted by Ord. 870-83. She need only hire a surveyor, determine the metes and bounds, draw the plat, present it to the Planning Commission (both City ; aoxough), once approved and L R 14 37 T MAI CITY COUNCIL - VERBATIM MARCH 4, 1967, Page 3 L signed, the document is then recorded. This is - I've been through this act many times myself. Yes. Councilman Wise: There is only one fallacy, John, and I continue arguing. I don't disagree with the argument at all, except the Administration refused to provide the ordinance to Mrs. Burnett or her husband or their representative, could attempt to have it recorded. They implied in testimony, I mean Mrs. Burnett did, that she felt that this would be the easement. The Recorder's office would have told her, assuming you're correct and I am not arguing with you, that it isn't. But she was stopped from going from Point A to Point B by a road block of the Administration. Mayor Williams: Granted. Councilman Wise: And had she been permitted to try, then it would have become, assuming you're correct, it would have become apparent that it's not the way to perfect it. And we wouldn't have stalled the wheels of this Council and the action would have been in for three years. Mayor Williams: Councilman Wise, I find it very unfortunate that the matter wasn't taken care of in a timely manner myself, and I don't know where to place the blame for that, aside from the fact that Mrs. Burnett should have been advised by someone as to the proper procedures. The procedures are well laid out, the problems we face is that she was not aware of the proper procedures to follow. It could have been very simply been taken care of. That is what we are attempting to do now. Councilman Wise: I just wanted to point out that there was a road block placed in the way I find distasteful, and I just wanted to make the point that she had one impression, then she was stopped cold from accomplishing it. Mayor Williams: Granted. Councilman Wise: And had she been able to proceed, which I thought was a reasonable assumption, it would have been very clear to her that that would, assuming you are correct and I am not challenging you, that it was not the way to go. Then we would have had this issue resolved a long long time ago. Mayor Williams: The Chair is willing to recognize Mrs. Burnett. Jill Burnett: Yes, I am Jill Burnett, I reside at 1304 Kiana Lane, Kenai. And, not only as you have followed this issue over the last four years, was information omitted to being given to me, I was actually - I have been given four separate sets of information on how to get this perfected by the Administration of the City of Kenai. I have followed each one. The first one was from Jeff Labahn, at that time City Land Manager. And he had instructed me that all that was needed was to et the approval of the State and Federal agencies. L .J KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 4 That if no land swap was involved, because of it being through parklands, that there would be no need to survey and that there would be no additional cost to me. That all I had to do was obtain the proper State and Federal approval. You've had copies of those in front of you many times. Those were obtained. Then when all the difficulties came up again after the option to lease with Dick Morgan, the City Attorney informed me that I needed to record the ordinance. I was not told to survey and record a plat. I was told that it was not my job to record the ordinance and since I had not done that and that is on tape at one of your meetings that was said here before you, because I had not done that, therefore I had no road and I had no complaint. Then on Jan. 20, I received, well I received on Jan. 25, a copy of a memo done by Kenai City Public Works. That's 25th of this year, after four years --from Mr. Kornelis that said essentially what he just said to us here, that what I needed was what he referred to in that letter as a closed loop survey and that I was responsible for drawing up what he called a grant of easement that had to be signed by the City Manager and notarized and recorded. So there was the third set of instructions. Then when I talked with Mayor Williams this past Monday, he gave me his opinion that it should be surveyed and platted and recorded through the Borough. So that's my fourth set of instructions. It has been four years of trying to find out what I was supposed to do, and not being allowed to do it, and being put under considerable - hardship because that was not permitted. It was not provided. So the question is, what in fact is the legal requirements? I know the Council agrees with me that a great injustice has been done in this matter, and I really appreciate the support that the Council has given me. The Community has been aware of the problem because it's been in the papers. And I can only commend the Council for its sense of justice and its trying to get things done the way they intended when they did the first ordinance. Mayor Williams has been a help even though he came in at the eleventh hour, at least he has tried to get it resolved even though we may or may not agree on the means. But we have suffered extreme damages through these four years. We have been put to over $55,000 worth of additional expense due to the mishandling by the City of Kenai for that period. And that was - when we originally got the rights to the road, we were told, you would have to up -grade the City road at your own out-of-pocket expense in order for the City to maintain it. So we said fine, that was estimated to be around $60,000 at that time. So here we are, $55,000 and four year's later, having missed the real estate market, and we still have to go ahead and improve the road. That is L ray aY: KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 5 still ahead of us. If we could ever afford it. And now we are being told that we need to do a survey besides to pay to have a survey done and the platting and all these other documents. So I submit to the Council, first of all, it must be determined and it must be put here on City records once and for all time, what is required of us to get this road perfected? And secondly, in the name of justice I feel, and I did call McLane Survejors and I said, what will this cost? They said it is going to cost $1,200 to do the survey, do the plat, take it through the Borough, etc., etc., etc. And I submit to you that after all we've been through for four years, even though it was not your original intent, it was not your original intent that we be put through this. And I submit to you that I think that's the least the City could do at this point by way of doing some reparation for all the damage that's been done. You think in terms of yourself and your families, if you set out to develop a piece of land and you ended up with $55,000 of extra expense through no fault of your own. You had followed instructions, every instruction you've been given. And then for the City to just say, well, we're sorry. We've been through four years of ineptitude and sidestepping and shuffling and conflicting advice. Mayor Williams: Mrs. Burnett, could you explain the $55,000 cost, where that money has been spent, for what purposes. Mrs. Burnett: I don't have the breakdown with me, John, but we have had legal fees because we have consulted attorneys on these matters. In fact if this had not been coming to a resolution, I just the other day received the balance of some of the retainer funds back from an attorney. We were ready to sue the City. I think after four years we certainly would have been entitled to do that. We also have had excess interest and taxes that we have had to pay that we would not have had to pay had we been able to market our land at the time. Because that land was bought right just prior to the land boom and it would have been sold and out of our hands. And we are continuing to make huge payments on it, a lot of money that we have never foreseen at a time - now it's not marketable as You know, being in .real estate, there's really nothing moving in real estate these days. And so we will just be saddled with those payments indefinitely and the interest that was unforeseen in gauging the investment to begin with, and as an astute businessman, you know - you've done that many times yourself. You have to count the costs and you see if it's going to be worth your effort to do it and to get involved in the first place. And if you feel that you can make a profit then that's what you do. And so when you get something like this, that holds you up for four yea not only does it devastate the profits for your KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 6 project, it devastates your own personal finances. Because you've either got to throw everything away that you've put into it, or you've got to carry on until the situation gets resolved. So the City has put us in a very difficult situation. I think you all agree we've been more than patient with the City in this and the Council's done every - they've given instructions to the Administration time and time again to fix this and make it right. And it just got shuffled off into another pile. Or some more erroneous advice has been given. Mayor Williams: Thank you very much Mrs. Burnett. Once again this is only from my own personal experiences in the business and has nothing to do or does not reflect on the City's position. It would appear that what is necessary is the surveyor be hired. And that the matter be done according to normal procedures and that the plat be taken to the Borough - City Planning Commission - for approval, the Borough Planning Commission for approval. And finally the Borough provide acceptance or receipt of certain funds will record the plat for you. It is their duty over there to do that. They record all plats after they've been approved by the Borough Planning Commission. Mrs. Burnett: I have no problem with that, Mr. Mayor, but again, had I been given that set of instructions four years ago I wou14 still have most of the $55,000 in my pocket. I would gladly have spent the $1,200 rather than the $55,000 it's costing. And I feel at this point that the moral justice of the matter would demand that the least that the City could do at this point in time would be to care for those - that - expense in getting that platted and recorded. Mayor Williams: Thank you. Is there any discussion from Council concerning Mrs. Burnett's request,as I understand it she's asking the City to pay for the surveying and platting and recording of this easement at this point. Councilwoman Bailie. Councilwoman Bailie: Yes, Mr. Mayor MOTION: Bailie: I move that the City does take care of the platting and the surveying of this matter. Monfor: I'll second that. Mayor Williams: It's been moved and seconded. I'd like a moment to confer with the Attorney if I might. RECESS Mayor Williams: (inaudible) --- free must be rescinded ! in order to do that. In rescinding the ordinance you ...+a�.wv.r-.�.- --..,...y,a,—vFr.'-i:i.`i�-') 'f.'� �4i�'+'+].l'!��{'': R,✓-'sti.+.c --' L f�' L KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 7 _ do in fact rescind the right to plat that street. A new ordinance would have to be instituted once again allowing them the right to plat that street and offering or - and including the costs of that. If in fact we rescind that ordinance it may put us in to a very legal position as to the lease and the potential lease that may be in the works with Morgans. I'm not sure how that would interfere with it. If we rescinded the ordinance, how does that affect us with Morgans? Legal Asst. Sutcliffe: It wouldn't affect us right now because he only has an option to lease and he hasn't exercised that yet. So as I understand there wouldn't be any effect. Mayor Williams: Council should be aware that at least the original ordinance would have to be rescinded in its entirety and a new ordinance written. Legal Asst. Sutcliffe: We could just do an agreement. We wouldn't have to enact a new ordinance. We could do an agreement with Burnetts. Public Works Director Kornelis: Basically what I understand, originally this thing was set up with an easement for access to her property. (inaudible) We were all talking about now is (inaudible) a public dedicated right-of-way. (inaudible) difference there. We can follow through if it's Council desire - we can re -plat our land and put a dedicated public road extending Candlelight. We can bring that back to Council just like we've done in the past in subdivisions when we built roads somewhere. We would re -plat the property and put the public right-of-way extending Candlelight and that surveying would be done by McLane's or somebody like she (inaudible). It (inaudible) still be an option that the City would have. If Council wants it, we can do that. Mayor Williams: The point to make is that the ordinance specifically states that we will not do that. Public Works Director Kornelis: That's true. Mrs. Burnett: It says --- Public Works Director Kornelis: (inaudible) the easement. Mayor Williams: or bear the costs. Mrs. Burnett: Mayor Williams, the ordinance says unless authorized by Council, as I understand. The City shall not assume responsibility for the up -grading and maintenance of said easement unless authorized by Council, nor cost of perfecting this easement. Unless that comma makes it exclude that, I don't know. Mayor Williams: We will have to have a copy of it (inaudible). Mrs. Burnett: It is called a Public Use Easement, however. Mayor Williams: Could we have a --- I might also point out that we have yet to hear from Morgans as far as anything concerning the golf course. There hasn't been any attempt yet made to determine whether we can go a different route, well there has (inaudible) plus costs. Excuse me. Yes. Administrative Asst. Gerstlauer: There has been a = k< `f L KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 8 letter received from Mr. Morgan asking to exercise his option. And if he does that he will be required to (inaudible). Mayor Williams: But again he doesn't have an option as I understand it from the Attorney. Councilman Wise: Mr. Mayor, could we have a brief recess? Mayor Williams: yes. RECESS Mayor Williams: Mrs. Burnett, I have your ordinance (inaudible). Councilman Wise: Mr. Mayor. Mayor Williams: Yes, Councilman Wise. Councilman Wise: In view of the predicament we find ourselves in, I feel that what we need to do is reconsider the ordinance Mrs. Burnett (inaudible) 870-83. Since it hasn't passed out of the control of the Council, no action has been taken on by either party, it's still within the realm of Council to reconsider, therefore --- VOTE: (Council took no action on the motion) L MOTION: Councilman Wise: I move for immediate reconsideration of Ordinance 870-83. Councilwoman Bailie: I'll second. Mayor Williams: It has been moved and seconded for reconsideration of Ordinance 870-83. I'd like to ask a legal opinion on the request for reconsideration. Would that affect our position any at all? Legal Asst. Sutcliffe: I'm not sure how it would affect the lease option that Mr. Morgan has. Before that was passed, I'm sure Tim and myself - I would like to have a chance to look at the legal ramifications of the lease option. But what would happen if this particular ordinance was rescinded, I don't know what would happen off the top of my head. And given the amount of money involved, the potential amount of money in the golf course involved, I don't think it's something we should take lightly. Mayor Williams: May I ask you, can an ordinance --- Councilman Wise: Mr. Mayor, may I speak? Mayor Williams: Let me speak with the Attorney Just a moment, please. Councilman Wise: All right. Mayor Williams: An ordinance, reconsideration of an ordinance is requested by Council at this point. Does that take effect immediately upon voting or is there a period of time, or do we have to bring it back for a second reading? (inaudible) Legal Asst. Sutcliffe: If they reconsider it now and took no action, then there wouldn't be a problem. But if any action was taken it might affect the lease option. Councilman Wise: Mr. Mayor, I think there's an issue being raised L 2, { ::'4 L KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 9 here which is unfortunate and inappropriate. Mayor Williams: Let me - for the edification of the Mayor, I'm trying to keep the City and everyone concerned out of trouble and I need a little help. All right, so as N.,I understand it, if there is action taken tonight, we could in fact rescind the ordinance if we chose to do it tonight? Legal Asst. Sutcliffe: Well, I - again that's another subject because I don't know if this ordinance has been reconsidered before and we have to examine the record. The Code provides you can only reconsider something once. And I don't know if this has ever been reconsidered. I don't know - given the number of times this has been in front of Council, I don't know. Mrs. Burnett: The ordinances remain the same. Mayor Williams: All right, I'll hear from Councilman Wise. Councilman Wise: The ordinance exists as of a given date in calendar year 1983. Effective date, I'm sure Mrs. Burnett could tell us. Mrs. Burnett: August, the 17th day of August. Councilman Wise: It establishes in my mind a commitment by the Council to provide access to that property. I think that commitment, whether or not it's been perfected or not, the history which is replete in the record over four years, clearly indicates that the Burnetts have certainly the basis for legal recourse. Not withstanding the lease option to Mr. Morgan. And therefore I feel that the lease option to Mr. Morgan is not germane or an issue at hand. This pre -dates all of Mr. Morgan's interest in the golf course or interest in the area. What I am proposing to do is to reconsider the ordinance and simply delete one very minor phrase. I consider minor,which will enable us to move this project forward. Mayor Williams: And that minor phrase being? Councilman Wise: It would be the last phrase in the ordinance which in the body of the ordinance (thank you, Jill) the ordinance portion of the - the enactment portion (inaudible) is; Now therefore be it ordained by the Council of the City of Kenai that 60 ft. public use easement be established along Candlelight Drive Extension on City -owned lands described as Govt. Lot 3, Section 3, TSN, R11W, SM. Subject to permission of appropriate Federal agencies. Further, the City shall not assume responsibility for the up -grading and maintenance of said easement unless authorized by the Council, nor cost of perfecting this easement. The intent of reconsideration, I would delete the last phrase, Nor cost of perfecting this easement. And we would assist the Surnetts in perfecting the easement through financial support and get this thing back on track where it belongs,because we have essentially interfered for four years of permitting resolution of the issue. Mayor Williams: The Chair is going to continue to permit discussion while the Attorney looks up the decision as to whet] L K=AI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 10 or not we can make a reconsideration of that motion in that matter. Councilman Ackerly. Councilman Ackerly: The only question I had was of the Attorney, but he's occupied. What he said, does that change your opinion „s wanting to look at it for a little bit longer? Legal Asst. Sutcliffe: Well, it doesn't seem like it would cause too much of a problem. I'm just, given the severity of any potential problem with Mr. Morgan, I would want to protect the City's interests and actually look it up and br'.ng it back to Council next time. But that was my only consideration. What he's proposing does not sound like it would cause problems. I can't say for sure that it wouldn't. Councilman Ackerly: We've gone four years, you know. We are not going to perfect between now and two weeks from now. I have no problem with what they're trying to attempt to pay for. The $1,200, but we're hanging our fanny out somewhere along the line and I think we ought to know that. That's what we pay these attorneys for. Mayor Williams: Further discussion? From my standpoint, my overriding concern is the potential of a lawsuit from either party against the City of Kenai and I think we need to do everything in our power now to ensure that whatever we do next does not create a situation that will lead into another lawsuit for the City. I'd like to see the City get away from having to enter into lawsuits on every one of these matters that come up. Legal Asst. Sutcliffe: It's particularly in light of the fact that she just said she's been talking to an attorney about the possibility of suing us. So that just makes it all the more - myself want to be all the more cautious. Mayor Williams: Councilwoman Monfor. Councilwoman Monfor: I don't know if I need to ask Ron this question. Personally I feel that the Burnetts were here first, much before we ever dealt with Morgan. But I'm wondering as far as the City's concerned, he - Mr. Morgan has -`ated in the past that if he leases this other section, he does not want a road going through his golf course. Which, by doing what we're doing this evening, there is going to be a road going through his golf course. That's correct, right? Legal Asst. Sutcliffe: That's correct. Councilwoman Monfor: So how could we not be opening ourselves to a lawsuit? Legal Asst. Sutcliffe: That's because he --- Councilwoman Monfor: One way or the other? Councilman Ackerly: He has no option. Mayor Williams: He only has the first right to refuse an option granted. He does not have the option at this time. Councilwoman Monfor: But then he's not here and he's not represented this evening. So wouldn't that still --- Legal Asst. Sutcliffe: It could cause a problem. Mayor Williams: Yes, Mr. Kornelis. Public Works Director Kornelis: One suggestion might be if it the Council's desire to help in providing this Tt�-vjt`�` KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987.. Page 11 right-of-way by doing the survey (inaudible) and if in fact it is $1,200 we will have to prepare an appropriation ordinance to pay for that. And so, we would have to come back to Council at the next meeting with an appropriating ordinance for the surveying to do that. Possibly that would give us enough time for the Attorney to look into what he's concerned about and maybe prepare a resolution to make the (inaudible) or whatever. Mayor Williams: I would like to take a moment to read the City Attorney Tim Rogers' note to Council of Jan. 20 in which he says, page 2, paragraph 4, "Thus if prior to the lease there was a valid perfected public use easement established, it is arguable that the lessee would take subject to that public use easement." So what we're saying there is that if prior to our entering into a lease agreement with Morgans, we enter into this perfection of the right-of-way (TAPE CHANGE) Mayor Williams (contd): On the other hand, a lessee, being Morgan, would conceivably argue that the right of first refusal somehow entitled them to argue or to acquire the lands as they existed on the date of the original lease and that at that time there was no valid, perfected public use easement.. Of course had there been a public use easement perfected, Article 15 would cover the problem. However, again I point out that there is an arguable position on the part of Morgan if he leases that property after the perfected road is in, that he in fact has been denied the right of his original intended lease. That's an arguable point. Councilman Wise. Councilman Wise: Mr. Mayor, I understand those ramifications. However, I am willing to proceed in this manner as I feel the motion on the floor is a legal motion and appropriate and should be acted on. I feel that secondly that once the ordinance is back before the Council on reconsideration on the amendment that I'm proposing or will propose at that time is appropriate. And I would hope that it's adopted. I would then have no objection, once the ordinance is amended, that we postpone till the next meeting when an appropriation ordinance can be prepared to fund the commitment. And we can let the attorneys fight it out over the next two weeks. Mayor Williams: There is a question as to the legality of your motion to rescind. Councilman Wise: No, to reconsider. Mayor Williams: Reconsider, I mean. Councilman Wise: I don't believe there is. The argument over reconsideration is, has the issue passed out of the control of the Council. It has not. Mayor Williams: May we take a look at --- Councilman Wise: Neither party has executed anything that would prohibit .�.::_.�.,. _. ��H?:3c,:St?�.�`S"i{uS,�:i'.r.�•s:-:'sa=Y;ss�r--�.,. _ _. L N-E" KWAI CITY COUNCIL - VERBATIM 14ARCH 4, 1987 Pap 12 the Council from re -opening the issue. Mayor Williams: May we take a look at the legality of it from the standpoint of the Code. "When a vote has been taken, any member who voted on the prevailing side, may move a reconsideration thereof at the same meeting or at the Ih next succeeding meeting whenever motions are in order, provided that the subject matter has not passed out of the control of Council." Council: Too late. Councilman Measles: What we can do is (inaudible) a new ordinance that rescinds the old ordinance. Then we would be in trouble. Mayor Williams: Councilwoman q,�K Monfor. Councilwoman Monfor: One thought that also comes to my mind is, I'm sure that somewhere along the line when the golf course lease was being worked up, Mr. Morgan must have known that this problem or potential problem was sitting there and it's been there for as long as I've been on Council and before that. It has never been resolved. Mayor Williams: Councilman Measles. Councilman Measles: John, I was 3e going to ask that maybe we ask Janet or somebody to go back to the tapes of the meetings where the lease was being discussed with Mr. Morgan. I seem to recall fairly clearly that this ordinance was pointed out to him at the time he was talking about this lease option on the other property. And at that time, as I recall, Mr. Morgan stated that that would not create a problem 09 for him with what he had in mind. And I would like to go back in the records and with a verbatim transcript of that part of that meeting when that took place. or hopefully she can find that. If my memory is not totally out of (inaudible). Mayor Williams: I believe that the Clerk -- Clerk Whelan: I have a file upstairs if you will give me a couple of minutes to go get it. Mayor Williams: Yes. The Clerk has been good enough to keep a separate file complete on this.We'll stand at ease for just a few minutes and see if we can r. pick that file up. RECESS NOTION DECLARED OUT OF ORDER: Mayor Williams: Based on the content of our Code, 1.15.060, City Ordinances, paragraph g, the Chair is going to rule out of order the motion to reconsider Ordinance 870-83. Mayor Williams: The Chair will entertain, or can entertain other motions at this time. Councilman Wise: Mr. Mayor. Mayor Williams: Yes, Councilman Wise. NOTE: Action Treated as Motion: RY1, Lr g KENAI CITY COUNCIL - VERBATIM MARCH 4, 1987 Page 13 Councilman Wise: Rather than a motion, I would ask for Council concurrence to direct the Administration to prepare an amendment, new ordinance amending 870-83, deleting the last enactment phrase which read, "nor cost of perfecting this easement." Mayor Williams: There is a motion to amend Ordinance 870-83. Councilman Wise: No, it would be a new ordinance presented to the Council at the next regular meeting which would --- that new ordinance would amend 870-83 by deleting that one specific phrase. Mayor Williams: Yes. The new ordinance amending Ord. 870-83, deleting the final sentence of the ordinance which at present disallows us from paying the cost of the survey and perfecting the land. I might point out that that ordinance will not take place for 30 days after it's been presented to us. I might also point out that there is money available to cover the cost of that perfection. Is there a second to that motion? Councilwoman Bailie: Second. Mayor Williams: It has been moved and seconded. Any further discussion? Councilman Wise: I ask unanimous consent. Mayor Williams: Is there objection to unanimous consent? Councilman Ackerly: For just preparing the ordinance? Mayor Williams: Yes, we're just preparing the ordinance for --- (inaudible). Councilman Ackerly: No objection, I have no objection. Mayor Williams: Okay. Before I pass on, in answer to Councilman Measles' request for a look at the minutes, we find no direct evidence from Council meetings, the conversation may have taken place in a work session at which there were no minutes taken (inaudible). We might also ask the Clerk to search further between now and next meeting for evidence of any conversations along those lines. VOTE: Mayor Williams: All right, hearing no objections to unanimous consent, so moved. 71i� Janet Whelan City Clerk