HomeMy WebLinkAboutOrdinance No. 2238-2007
Suggested by:
CITY OF KENAI
ORDINANCE NO. 2238-2007
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ENDING
TITLE 11 OF THE KENAI MUNICIPAL CODE BY ELIMINATING THE CI OF KENAI
HARBOR COMMISSION, REASSIGNING ITS DUTIES TO OTHER EN IES WITHIN
THE CITY OF KENAI AND UPDATING REGULATION OF THE R AREA.
WHEREAS, Title 11 of the Kenai Municipal Code established th Kenai Harbor
Cormmission and sets forth its duties and responsibilities; an ,
WHEREAS, it has become increasingly difficult to recruit ininitted Harbor
Commission members to achieve a quorum for Harbor mmission meetings; and,
WHEREAS, the duties of the Harbor Commission ca e reassigned to the City of
Kenai Planning and Zoning Commmission and City nager; and,
WHEREAS, it is in the best interest of the Cfty o Kenai to eliminate the Harbor
Commission and reassign its duties; and,
WHEREAS, the rules regarding the regulati n of the "harbor" area contained in Title
11 of the Kenai Municipal Code need to b revised and updated.
WHEREAS, it is in the best interest of e City of Kenai to eliminate the Harbor
Commission and reassign it duties.
NOW, THEREFORE, BE IT ORDA ED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA, that Title 11 of the Ke i Municipal is amended as shown in Attachment A.
PASSED BY THE COUNCIL Off' THE CITY OF KENAI, ALASKA, this 20th day of June,
2007. ~
PAT PORTER, MAYOR
ATTEST:
Carol L. Freas, CiJ~ Clerk
Introduced: June 6, 2007
Adopted: June 2Q 2007
Effective: July 20, 2007
Chapter 11.05 HARBOR MASTER
11.05.010 Harbor Master.
11.05.020 I3arbor defined.
11.05.030 Harbor regulations.
11.05.040 Permit for terminal or transportation facilities.
11.05.050 Condition as to equal services and rates.
11.05.060 Investigation of holder-cancellation.
ll.05.070 Tacility rates and charges.
11.05.080 Leasing not prohibited.
11.05.090 Use of launch ramp and float.
11.05.010 Harbor Master.
The Harbor Master, shall be appointed by the City Manager [THE PUBLIC WORKS
DIRECTOR]. The Harbor Master shall be the chief administrator of the harbor and its facilities.
He shall have all powers and duties prescribed by ordinance and the regulations and rates
prescribed by the City Manager. In addition, insofar as it is appropriate, shall have all powers
and duties and rates prescribed by the City Manager, subjecC to approval by the Council; and, in
addition, insofar as it is appropriate, shall have all powers and duties imposed upon harbor
masters, port directors, and administrative heads of harbors and ports by Federal or State law.
11.05.020 Harbor defined.
The harbor shall embrace all that portion of the Kenai River located within the City of
Kenai, including all tide and submerged lands, whether filled or unfilled, situated below the line
of mean high tide[, AS MAYBE LEASED FROM THE STATE OF ALASKA].
11.05.030 Harbor regulations.
The City Manager is hereby empowered, subject to change by the Council, to melee such
rules and regulations required for the operation of the harbor, not in conflict with the provisions
of this Code, and to establish the fees, rates, and charges for the billing and collections for the
support of the harbor, and no person shall fail to comply with any such rule or regulation.
11.05.040 Permit for terminal or transportation facilities.
[(A) ALL LESSEES, OWNERS, OR OCCUPANTS OF PROPERTY WITHIN THE
HARBOR OR CONTIGUOUS TO IT WHO WISH TO CONSTRUCT OR OPERATE
TERMINAL OR TRANSPORTATION FACILITIES OF ANY KIND THEREIN, INCLUDING
BUT NOT LIMITED TO DOCKS AND WAREHOUSES, SHALL APPLY TO THE
LANDSCAPING/SITE PLAN REVIEW BOARD FOR A PERMIT. APPLICATION
THEREFOR SHALL BE MADE IN ACCORDANCE WITH REGULATIONS DESCRIBED
IN KMC 14.25, ENTITLED "LANDSCAPING/SITE PLAN REGULATIONS," AND SHALL
BE ACCOMPANIED BY A PLAN OF THE PROPOSED CONSTRUCTION, WHICH SHALL
MEET ALL STANDARDS AND REQUIREMENTS WHICH MAY BE SET FORTH BY THE
COUNCIL.
Ordinance No.2238-2007 AttacUment "A^ 5/31/2007 8:39 AM
C:\Documents and Settings\efreas\Locat Settings\Temporary Intemef FilesIOLKB\Chapter l l l.doc
Page 1 of 46
(B} THE APPLICANT SHALL REFER ALL PLANS OF THE TYPE OR LOCATION OF
ANY PROPOSED CONSTRUCTION WHICH ARE OR MAY BE IN CONFLICT WITH THE
GENERAL CITY PLAN TO THE HARBOR COMMISSION AND THE
LANDSCAPIlVGISITE PLAN REVIEW BOARD TO DETERMINE WHETHER SUCH
PROPOSED CONSTRUCTION IS IN KEEPING WITH THE OBJECTIVES OF THE
GENERAL PLAN. THE DECISION OF THE LANDSCAPIIVG/SITE PLAN REVIEW
BOARD SHALL BE BINDING UNLESS APPEALED BY COUNCIL. THE BUILDING
OFFICIAL MAY ISSUE PERMITS UPON SUCH TERMS AND CONDITIONS AND FOR
SUCH DURATION AS IT MAY DEEM PROPER, AND NO CONSTRUCTION MAY BEGIN
OR OPERATION CARRIED ON WITHOUT A PERMIT FROM THE BUILDING
OFFICIAL.]
11.05.050 Condition as to equal services and rates.
[IT SHALL BE A CONDITION OF ALL PERMITS GRANTED BY THE CITY
COUNCIL, THAT THE FACILITIES TO BE CONSTRUCTED AND THE SERVICES TO BE
SUPPLIED IN CONNECTION WITH THEM SHALL BE MADE AVAILABLE TO ALL
CARRIERS UPON EQUAL TERMS, AT EQUAL RATES, AND WITHOUT
DISCRIMINATION OF ANY KIND.]
11.05.060 Investigation of holder-Cancellation.
[THE CITY COUNCIL MAY INQUIRE INTO THE MANNER IN WHICH
OBLIGATIONS UNDER THE PERMITS ISSUED BY IT ARE CARRIED OUT, AND INTO
THE RATE SCHEDULES AND PRACTICES OF THE PERMIT HOLDERS FOR PURPOSES
OF DETERMINING WHETHER THE PROVISIONS OF THE PERMITS ARE BEING
COMPLIED WITH. IT SHALL HAVE ACCESS TO BOOKS AND RECORDS AND TO
TERMINAL AND TRANSPORTATION FACILITIES AS MAY BE REASONABLY
NECESSARY TO ENABLE IT TO MAKE SUCH A DETERMINATION. SHOULD THE
COUNCIL AT ANY TIME FIND THE PERMIT HOLDER IS NOT COMPLYING WITH THE
TERMS OF HIS PERMIT, IT MAY CANCEL THE PERMIT UPON SUCH NOTICE AND IN
ACCORDANCE WITH SUCH PROCEDURE AS IT MAY, BY REGULATION,
PRESCRIBE.]
11.05.070 Facility rates and charges.
[THE CITY MANAGER SHALL FIX THE RATES ANA CHARGES FOR THE USE
OF ANY AND ALL TERMINAL OR TRANSPORTATION FACILITIES CONSTRUCTED
ON PROPERTY UNDER ITS JURISDICTION, INCLUDING CHARGES ASSESSED
AGAINST VESSELS, THEIR OWNERS, AGENTS OR OPERATORS WHICH LOAD OR
DISCHARGE CARGO AT ANY OF THE TERMINALS WITHIN THE HARBOR AREA;
CHARGES FOR BERTHAGE WHILE LOADING OR DISCHARGING CARGO; CHARGES
FOR ADMINISTRATIVE EXPENSES IN SERVING THE CARRIER' S CHARGES FOR
FREIGHT HANDLING, LOADING, UNLOADING AND WHARF DEMURRAGE RATES.
SUCH RATES AND CHARGES SHALL BE JUST AND REASONABLE, AS DETERMINED
BY THE CITY MANAGER, SUBJECT TO CHANGE BY THE COUNCIL, AND SHALL BE
Ordinance No. 2238-2007 Attachment "A° 5/37/2007 8:39 AM
C:\Documents and Settings\efreasU..ocat Settings\Temporary Internet Files\OLKB\Chapter ll 1.doc
Page 2 of 4G
PUBLISHED BY POSTING ON THE COUNCIL BULLETIN BOARD AND IN SUCH
OTHER MANNER AS THE COUNCIL MAY REQUIRE.]
11.05.080 Leasing not prohibited.
Nothing in this chapter or in this code of ordinances shall prohibit the City Council from
leasing the docks, dock sites, and other harbor facilities to private persons, firms, and
corporations.
11.05.090 Use of launch ramp and float.
(a) The City of Kenai launching facility shall be open to the public upon reasonable terms
and conditions as provided by regulation.
(b) Failure to pay a boat launch fee for the City of Kenai launching facility set forth
according to KMC 11.05 within one (1) hour of the retrieval of the boat or vessel from the water
shall be a violation punishable by a fine of $50.00. (Ord. 1597-94}
(c) Zt shall be unlawful to block access to either of the launch ramp or float facilities.
"Bloelcing access" means leaving a boat, trailer, or vehicle upon the launch ramp or float in such
a position as To prevent the launching or retrieval of boats.
(d) Person blocking access to the ramp or float facilities shall be subject to a civil penalty as
provided in KMC 13.OS.OlO(b).
(e) Each one-hour period for which the ramp or float is blocked shall be considered a
separate offense for the purposes of civil penalties.
Chapter 11.10 HARBOR COMMISSION
11.10.010 Duties and powers.
11.10.010 Duties and powers.
[(A) THE COMMISSION SHALL BE REQUIRED TO DO THE FOLLOWING:
(1) DEVELOP, ADOPT, ALTER, OR REVISE, SUBJECT TO APPROVAL BY
THE CITY COUNCIL, A MASTER PLAN FOR THE PHYSICAL DEVELOPMENT OF
HARBOR OR PORT FACILITIES FOR THE CITY. SUCH MASTER PLAN WITH
ACCOMPANYING MAPS, PLATS, CHARTS, DESCRIPTIVE, AND EXPLANATORY
MATTER, SHALL SHOW THE COMMISSION'S RECOMMENDATIONS FOR THE
DEVELOPMENT OF THE CITY HARBOR FACILITIES MAY INCLUDE, AMONG OTHER
THINGS:
(I) DEVELOPMENT OF THE TYPE, LOCATION, AND SEQUENCE OF ALL
PUBLIC HARBOR FACILITIES;
(II) THE RELOCATION, REMOVAL, EXTENSION, OR CHANGE OF USE OP
EXISTING HARBOR FACILZTIES;
(2) SUBMIT ANNUALLY TO THE CITY MANAGER AND COUNCIL, NOT
LESS THAN NINETY (90) DAYS PRIOR TO THE BEGINNING OF THE BUDGET YEAR,
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Doeuments and Settings\cfreas\Local Settings\Temporary Internet Files\OLKB\Chapter I ll.doc
Page 3 of 46
A LIST OF THE RECOMMENDED CAPITAL IMPROVEMENTS WHICH, IN THE
OPINION OF THE COMMISSION, ARE NECESSARY OR DESIRABLE TO BE
CONSTRUCTED DURING THE FORTHCOMING THREE (3) YEAR PERIOD. SUCH LIST
SHALL BE ARRANGED IN ORDER OF PREFERENCE, WITH RECOMMENDATIONS AS
TO WHICH PROJECTS SHALL BE CONSTRUCTED IN WHICH YEAR.
(3) MAKE INVESTIGATIONS REGARDING ANY MATTER RELATED TO
CITY HARBOR FACILI'T'IES, TIDE OR SUBMERGED LANDS. MAKE
RECOMMENDATIONS TO THE COUNCIL RELATIVE TO THE CARE, CONTROL, AND
DEVELOPMENT OF TIDE AND SUBMERGED LANDS.
(4) ACT IN THE CAPACITY AS DIRECTED AND AUTHORIZED BY A
TIDELANDS ORDINANCE ADOPTED BY THE CITY.
(5) REVIEW ALL CITY LEASES OF CITY-OWNED TIDE, SUBMERGED, AND
LANDS OR NAVIGABLE WATERS WITHIN TIC CITY, AND AS TO THE PLANNED
ItMPROVEMENTS PROPOSED AND MAKE RECOMMENDATIONS TO THE CITY
COUNCIL.
(6) MAKE AND PREPARE REPORTS AND PLANS FOR APPROVAL BY THE
CITY COUNCIL.
(7) COORDINATE PUBLIC EFFORTS, INDIVIDUAL AND GROUP, TO THE
EFFECTUATION OF APPROVED PLANS.
(8) SHALL ACT IN ADVISORY CAPACITY IN THE SELECTION OF A
HARBOR DIRECTOR SHOULD SUCH A POSITION BE CREATED BY THE CITY
COUNCIL.]
Chapter 11.15 TIDELANDS
11.15.010 Short title.
11.15.020 Definitions.
11.15.030 Approval and acceptance of State conveyance.
11.15.040 Approval and adoption of subdivision plat.
11.15.050 Time and places of posting plat.
11.15.060 Publication of notice of posting plat and plat and passage of ordinance.
11.15.070 Time in which applications will be accepted for filing.
11.15.080 Procedure for filing applications.
11.15.090 Initial review by Commission.
11.15.100 Preliminary plat.
11.15.110 Preliminary plat requirements.
11.15.120 Survey procedure.
1L15.130 Procedure on final plat.
11.15.1.40 Final plat requirements.
11.15.150 Deposits for costs prerequisite to filing.
11.15.1.60 Additional costs in certain cases.
11.15.170 Procedures for processing filed applications.
11.15.180 Appraisal.
11.15.190 Review by City Engineer.
Ordinance No. 2238-2007 Attachment "A" 5/31!2007 8:39 AM
C:\Documents and Settings\cfreas\Local Settings\Temporazy Internet Files\OLKB\Chapter I l l.doc
Page 4 of 46
11.15.200 Recommended approval by Commission.
11.15.210 Processing of approved applications by Clerk and notice to publac.
11.15.220 Deeds-Permanent register.
ll.15.230 Special proceedings for disputed claims.
11.15.240 Proceedings for determination by Council of all disputes.
11.15.250 Determination upon stipulation of facts.
11.15.260 Rejection of protests other than by applicant.
11.15.270 Handling of deposit and purchase funds.
11.15.280 Forffeiture of preference rights.
11.15.290 Forms.
1L15.010 SHORT TITLE.
[THIS ORDINANCE SHALL BE KNOWN AS THE "KENAI TIDELANDS
ORDINANCE."]
11.15.020 DEFINITIONS.
[FOR THE PURPOSE OF THIS ORDINANCE, THE TERMS DEFIlVED HEREIN
SHALL HAVE THE MEANING PROVIDED UNLESS THE CONTEXT REQUIRES
OTHERWISE:
(A) "ALASKA" MEANS THE STATE OF ALASKA.
(B) "AGRICULTURAL LANDS" MEANS TIDELANDS CHIEFLY VALUABLE FOR
AGRICULTURAL PURPOSES.
(C) "ASSESSOR" MEANS THE ASSESSOR OF THE CITY OF KENAI, ALASKA, OR
OTHER INDIVIDUAL DESIGNATED BY TI-ID CPI'Y MANAGER TO PERFORM THE
FUNCTIONS HEREIN ASSIGNED TO THE ASSESSOR.
(D) "CITY" MEANS THE CITY OF KENAI, ALASKA.
(E) "CITY ENGINEER" MEANS THE CITY ENGINEER OF THE CITY, OR OTHER
CITY OFFICIAL DESIGNATED TO PERFORM THE FUNCTIONS HEREIN ASSIGNED TO
THE CITY ENGINEER.
(F) "CLASS I PREFERENCE RIGHT" MEANS THE RIGHT EXTENDED TO PERSONS
WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS SEAWARD OF A
SURVEYED TOWNSTTE ON AND PRIOR TO SEPTEMBER 7, 1957, AND WHO HAVE
EXECUTED A WAIVER TO THE CITY AND STATE OF ALL RIGHTS SUCH OCCUPANT
MAY HAVE HAD PURSUANT TO PUBLIC LAW 85-303. UPON EXECUTION OF THE
WAIVER, SUCH PERSONS OR THEIR SUCCESSORS IN INTEREST, HAVE THE RIGHT
TO ACQUIRE SUCH OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS
FROM THE CITY FOR CONSIDERATION OF THE COSTS OF SURVEY, AND
TRANSFERRING AND CONVEYLNG THE TITLE.
(G) "CLASS II PREFERENCE RIGHT" MEANS THE RIGHT EXTENDED TO CLASS I
PREFERENCE RIGHT CLAIMANTS WHO REFUSE TO EXECUTE A WAIVER TO THE
CITY OF ANY RIGHTS SUCH OCCUPANTS MAY HAVE ACQUIRED PURSUANT TO
PUBLIC LAW 85-303. IT SHALL BE MANDATORY FOR THE CITY TO EXPEDITIOUSLY
HONOR THE APPLICATION FROM THE OCCUPANT AFTER THE SECRETARY OF THE
ARMY HAS SUBMITTED TO THE SECRETARY OF THE INTERIOR AND GOVERNOR
OF THE STATE MAPS SHOWING THE PIERHEAD LINE ESTABLISHED BY THE CORPS
Ordinance No. 2235-2007 Attachment "A" SY31/2007 8:39 AM
C:~Documents and SeCtings\cfreas\Local Settings\Temporary Internet FilesVOLKBVChapter lll.doc
Page 5 of 4G
OF ENGINEERS WITH RESPECT TO THE TRACT SO GRANTED. THE MOST
EXPEDITIOUS METHOD OF SECURLNG TITLE TO SUCH LANDS IS TO EXECUTE THE
WAVER OF CLASS II RIGHTS AND PROCEED TO APPLY FOR TITLE UNDER A
CLASS I PREFERENCE RIGHT.
(I) "CLASS III PREFERENCE RIGHT" MEANS THE RIGHT EXTENDED TO
PERSONS WHO OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS AFTER
SEPTEMBER 7, 1957, AND WHO CONTINUED TO OCCUPY THE SAME ON JANUARY
3, 1959. SUCH PERSONS, OR THEIIZ SUCCESSORS, HAVE THE RIGHT TO ACQUIRE
SUCH OCCUPIED OR DEVELOPED TIDE OR SUBMERGED LANDS FOR A
CONSIDERATION NOT TO EXCEED THE COSTS OF APPRAISAL, AND THE
ADMINISTERING AND TRANSFERRING, INCLUDING SURVEY, TOGETHER WITH
THE APPRAISED FAIR MARKET VALUE THEREOF, EXCLUSIVE OF ANY VALUE
OCCURRING FROM IMPROVEMEN"PS OR DEVELOPMENT, SUCH AS FILL
MATERIAL, BUILDING, OR STRUCTURES THEREON.
(J) "CLERK" MEANS THE CLERK OF THE CITY.
(K) "COMMISSION" MEANS THE CITY OF KENAI ADVISORY HARBOR
COMMISSION.
(L) "DIRECTOR" MEANS THE DIRECTOR OF LANDS, STATE OF ALASKA.
(M) "DIRECTOR'S LLNE" MEANS A LINE SEAWARD OF THE CITY, APPROVED BY
THE DRECTOR, WITH THE CONCURRENCE OF THE COMMISSIONER OF NATURAL
RESOURCES, STATE OF ALASKA, SEAWARD OF ALL TIDE AND SUBMERGED
LANDS OCCUPIED OR SUITABLE FOR OCCUPATION AND DEVELOPMENT
WITHOUT UNREASONABLE INTERFERENCE WITH NAVIGATION.
(N) "FAIR MARKET VALUE" MEANS THE HIGHEST PRICE, DESCRIBED IN TERMS
OF MONEY, WHICH THE PROPERTY WOULD BRLNG IF EXPOSED FOR SALE FOR A
REASONABLE TIME IN THE OPEN MARKET, WITH A SELLER, WILLING BUT NOT
FORCED TO SELL, AND A BUYER, WILLING BUT NOT FORCED TO BUY, BOTH
BEING FULLY UNFORMED OF ALL THE PURPOSES FOR WHICH THE PROPERTY IS
BEST ADAPTED OR COULD BE USED.
(O) "FILL" SHALL MEAN EARTH, GRAVEL, ROCK, SAND, OR OTHER SIMILAR
MATERIALS PLACED UPON TIDE OR CONTIGUOUS SUBMERGED LANDS TO A
HEIGHT ABOVE THE HIGH WATER LINE FOR THE PURPOSE OF ELEVATING THE
LANDS FOR A SPECIAL USEFUL PURPOSE. EARTH, GRAVEL, ROCK, SAND, OR
OTHER SIMILAR MATERIALS, PLACED ON TIDE OR CONTIGUOUS SUBMERGED
LAND SOLELY FOR THE PURPOSE OF SPOII.S DISPOSAL SHALL NOT BE
CONSIDERED FILL UNLESS SUCH FILL WAS USED FOR USEFUL AND BENEFICIAL
PURPOSE ON AND PRIOR TO JANUARY 3, 1959.
(P) "HEARINGS OFFICER" MEANS THAT CITY OFFICIAL EMPLOYED TO HEAR
DISPUTES BETWEEN CLAIMANTS, SUMMARIZE THE TESTIMONY, ATTEMPT TO
REACI~ STIl'ULATIONS OF FACT BETWEEN THE PARTIES, ASSEMBLE THE RECORD
OF THE DISPUTE, AND SUBMIT THE SAME TO THE COUNCIL FOR
DETERMINATION.
Ordinance No. 2238-2007 Attachment "A" 5/31!2007 8:39 AM
CaDocuments and Settings\cfreas~Local Settings\Temporary Internet FilesVOLKBVChapter ll l.doc
Page 6 of 46
(Q) "IMPROVEMENTS" MEANS BUILDINGS, WHARVES, PIERS, DRY DOCKS, AND
OTHER SIMILAR TYPES OF STRUCTURES PERMANENTLY FIXED TO THE TIDE OR
CONTIGUOUS SUBMERGED LANDS THAT WERE CONSTRUCTED AND/OR
MAINTAINED BY THE APPLICANT FOR BUSINESS, COMMERCIAL, RECREATION,
RESIDENTIAL, OR OTHER BENEFICIAL USES OR PURPOSES. FLOATS SECURED BY
GUIDE PILES USED AS FLOATING WHARVES, WHERE ACCESS IS PROVIDED TO
THE SHORE, SHALL BE IMPROVEMENTS WITHIN THE MEANING OF THIS SECTION,
AND FILL MATERIAL NOT ACTUALLY IN PLACE TO ABOVE THE LINE OF MEAN
HIGH TIDE OF JANUARY 3, 1959 AND ACTUALLY UTILIZED FOR BENEFICIAL
PURPOSES ON JANUARY 3, 1959 BY T'F1E APPLICANT SHALL BE CONSIDERED A
PERMANENT IMPROVEMENT, BUT IN NO EVENT SHALL FILL BE CONSIDERED A
PERMANENT IMPROVEMENT WHEN PLACED ON THE TIDELANDS SOLELY FOR
THE PURPOSE OF DISPOSING OF WASTE OR SPOILS. FILL MATERIAL NOT
UTILIZED FOR A BENEFICIAL PURPOSE ON AND PRIOR TO JANUARY 3, 1959, AND
FILL MATERIAL NOT ACTUALLY IN PLACE TO ABOVE THE LINE MEAN HIGH TIDE
ON JANUARY 3, 1959 SHALL NOT BE THE BASIS FOR AN APPLICATION, NOR SHALL
IT BE INCLUDED IN ANY APPLICATION, FOR THE EXERCISE OF PREFERENCE
RIGHTS HEREUNDER.
(R) "INDUSTRIAL AND COMMERCIAL LANDS" MEANS TIDE LANDS CHIEFLY
VALUABLE FOR INDUSTRIAL, MANUFACTURING, OR COMMERCIAL PURPOSES.
(S) "KENAI" MEANS THE CITY OF KENAI, ALASKA.
(T) "MANAGER" MEANS THE MANAGER OF THE CITY OF KENAI, ALASKA.
(U) "MEAN HIGH TIDE" AT ANY PLACE SUBJECT TO TIDAL INFLUENCE SHALL
BE INTERPRETED AS THE TIDAL DATUM PLANE DERIVED FROM AVERAGING ALL
THE HIGH WATERS OBSERVED AT THAT PLACE OVER A PERIOD OF NINETEEN (19)
YEARS. MEAN HIGH WATER SHALL BE INTERPRETED TO BE AS THE
INTERSECTION OF THE DATUM PLACE OF MEAN HIGH WATER WITH THE SHORE.
(V) "MEAN LOW TIDE" SHALL BE INTERPRETED TO BE MEAN LOWER LOW
WATER WHICH IS THE MEAN OF THE LOWER OF TPIE TWO LOW WATERS OF EACH
DAY FOR A TIDAL CYCLE OF NINETEEN (19) YEARS.
(W) "OCCUPANT" MEANS ANY PERSONAS DEFINED HEREIN, OR HIS
SUCCESSOR IN INTEREST, WHO ACTUALLY OCCUPIED FOR ANY BUSINESS,
RESIDENTIAL, OR OTHER BENEFICIAL PURPOSE, TIDE OR SUBMERGED LAND,
WITHIN THE CONVEYANCE OF SUCH BY THE STATE TO THE CITY, ON OR PRIOR
TO JANUARY 3, 1959, WITH SUBSTANTIAL PERMANENT IMPROVEMENTS. NO
PERSON SHALL BE CONSIDERED AN OCCUPANT BY REASON OF HAVING:
(1) PLACED A FISH TRAP IN POSITION FOR OPERATION OR STORAGE
UPON THE TIDE, SHORE, OR SUBMERGED LAND;
(2) PLACED A SET NET OR PILING THEREFOR OR ANY OTHER DEVICE OR
FACILITY FOR TAKING OF FISH;
(3) PLACED PILINGS OR DOLPHINS FOR LONG STORAGE OR OTHER
MOORAGE;
Ordinance No. 2238-2007 Attactunent "A" 5/31/2007 839 AM
C:\Documents and Settings\cfreas\Local SettingslTempocary Internet Files\OLKB\Chapter 111.doc
Page 7 of 46
(4) PLACED TELEPHONE, POWER, OR OTHER TRANSMISSION FACILITIES,
ROADS, TRAII.S, OR OTHER CONTIGUOUS SUBMERGED LANDS; OR
(5) CLAIMED THE LAND BY VIRTUE OF SOME FORM OF CONSTRUCTIVE
OCCUPANCY. WHERE LAND IS OCCUPIED BY A PERSON OTHER THAN THE
OWNER OF THE IMPROVEMENTS THEREON, THE OWNER OF THE IMPROVEMENTS
SHALL, FOR THE PURPOSE OF THIS ORDINANCE, BE CONSIDERED THE OCCUPANT
OF SUCH LANDS.
(X) "OCCUPIED OR DEVELOPED" MEANS THE ACTUAL USE, CONTROL, AND
OCCUPANCY, BUT NOT NECESSARILY RESIDENCE, OF THE TIDE OR SUBMERGED
LAND BY THE ESTABLISHMENT THEREON OF SUBSTANTIAL PERMANENT
IMPROVEMENTS.
(Y) "ORDINANCE" MEANS THE KENAI TIDELANDS ORDINANCE.
(Z) "PARK AND RECREATION LANDS" MEANS TIDELANDS CHIEFLY VALUABLE
FOR PUBLIC PARK AND RECREATION USE, INCLUDING SCENIC OVERLOOKS.
(AA) `"PERSON" MEANS ANY PERSON, FIRM, CORPORATION, COOPERATIVE
ASSOCIATION, PARTNERSHIP OR OTHER ENTITY LEGALLY CAPABLE OF OWNING
LAND OR ANY INTEREST THEREIN.
(BB) "PIERHEAD LINE" IS A LINE FIXED BY THE CORPS OF ENGINEERS ROUGHLY
PARALLEL TO THE EXISTLNG LINE OF MEAN LOW TIDE AT SUCH DISTANCE
OFFSHORE THEREFROM THAT SAID PIERHEAD LINE SHALL ENCOMPASS
LANDWARD ALL STATIONARY, MANMADE STRUCTURES UNDER THE
AUTHORITY OF PUBLIC LAW 85-303.
(CC) "PREFERENCE RIGHT" SUBJECT TO THE CLASSIFICATIONS THEREOF
HEREIN ESTABLISHED MEANS THE RIGHT OF AN OCCUPANT TO ACQUIRE BY
GRANT, PURCHASE, OR OTHERWISE, AT THE ELECTION OF THE OCCUPANT,
EXCEPT AS OTHERWISE LIMITED OR PRESCRIBED IN THIS ORDINANCE, ANY LOT,
PIECE, PARCEL, OR TRACT OF TIDELAND OR SUBMERGED LAND OCCUPIED OR
DEVELOPED BY SUCH OCCUPANT ON AND PRIOR TO JANUARY 3, 1959.
(DD) "STATE" MEANS THE STATE OF ALASKA.
(EE) "SUBMERGED LANDS" MEANS LAND COVERED BY TIDAL WATERS
BETWEEN THE LINE OF MEAN LOW WATER AND SEAWARD TO A DISTANCE OF
THREE (3) GEOGRAPHICAL MILES, IN THEIR NATURAL STATE, WITHOUT BEING
AFFECTED BY MANMADE STRUCTURES, FILL, AND SO FORTH.
(FF) "SUBSTANTIAL PERMANENT IMPROVEMENTS" SHALL FOR THE PURPOSES
OF THE ORDINANCE HAVE THE SAME MEANING AS IMPROVEMENTS, AS HERELN
DEFINED.
(GG) "TIDELANDS" MEANS LANDS PERIODICALLY COVERED BY TIDAL WATERS
BETWEEN THE ELEVATIONS OF MEAN HIGH TIDE AND MEAN LOW TIDES,
WITHOUT REGARD TO ARTIFICIAL INTERFERENCE WITH TIDAL FLOWS CAUSED
BY MANMADE STRUCTURES, BREAKWATERS, FII.L, AND THE LIKE. WHEN USED
IN THIS ORDINANCE, IT SHALL ALSO INCLUDE SUBMERGED LANDS CONVEYED
BY THE STATE TO THE CITY.
Ordinance No. 2238-2007 Attachment "A" 5/31/?A07 8:39 AM
C:\Documents and Settings\cfreas\Local Sefcings\Temporary In[ernet Files\OLKB\Chapter ] l Ldoc
Page 8 of 46
(HH) "TIDELANDS SUBDIVISION PLAT" IS THAT CERTAIN PLAT OF SUBDIVISION
OF TIDELANDS AND SUBMERGED LANDS CONVEYED BY THE STATE TO THE CITY
MADE BY H.H. GALLIETT, JR., REGISTERED ENGINEER, DATED DECEMBER, 1968,
KNOWN AS ALASKA TIDELANDS SURVEY NO. 272 AND FII,ED AS 76-179 IIVT THE
KENAI RECORDING DISTRICT SHOWING ALL STRUCTURES AND IMPROVEMENTS
THEREON AND THE BOUNDARIES OF EACH TRACT OCCUPIED OR DEVELOPED,
TOGETHER WITH THE NAME OF THE OWNER OR CLAIMANT THEREOF,
IlVCLUDING WITHIN THE BOUNDARIES OF EACH TRACT OCCUPIED OR
DEVELOPED SUCH SURROUNDING TIDE AND SUBMERGED LANDS AS SHALL BE
REASONABLY NECESSARY IN THE OPINION OF THE COUNCIL FOR THE USE AND
ENJOYMENT OF THE STRUCTURES AND IMPROVEMENTS THEREON BY THE
OWNER OR CLAIMANT, BUT SHALL NOT LNCLUDE ANY TIDE OR SUBMERGED
LANDS WHICH IF GRANTED TO SUCH OCCUPANT, WOULD UNJUSTLY DEPRIVE
ANY OCCUPANT OF ADJOINING LANDS FROM HIS REASONABLE USE AND
ENJOYMENT THEREOF.]
11.15.030 APPROVAL AND ACCEPTANCE OF STATE CONVEYANCE.
[THE CONVEYANCE BY THE STATE TO THE CITY, DATED JANUARY 6, 1977
OF TIDELANDS AND SUBMERGED LANDS LYING SEAWARD OF THE CITY IS
HEREBY APPROVED AND ACCEPTED AND THE LANDS THEREIN ARE HEREBY
DECLARED LNCORPORATED INTO THE LIMITS OF THE CITY.]
11.15.040 APPROVAL AND ADOPTION OF SUBDIVISION PLAT.
[THE TIDELANDS SUBDIVISION PLAT, HEREINAFTER CALLED "PLAT" IS
HEREBY APPROVED AND ADOPTED AS THE OFFICIAL TIDELANDS SUBDIVISION
PLAT OF THE CITY OF KENAI, ALASKA, OF TIDE AND SUBMERGED LANDS
CONVEYED BY THE STATE TO THE CITY BY CONVEYANCE DATED JANUARY 6,
1977. SAID ALASKA TIDELANDS SURVEY IS NUMBERED 272 AND IS FILED UNDER
76-179 Iiv~ THE KENAI RECORDING DISTRICT. ]
11.15.050 TIME AND PLACES OF POSTING PLAT.
[SAID PLAT SHALL BE POSTED FOR A PERIOD OF NOT LESS THAN SIXTY
(60) DAYS, COMMENCING WITH THE DATE FOLLOWING THE DATE OF FINAL
PASSAGE OF THIS ORDINANCE, IN THE OFFICE OF THE CLERK, CITY HALL
BUILDING.)
11.15.060 PUBLICATION OF NOTICE OF POSTING PLAT AND PLAT AND
PASSAGE OF ORDINANCE.
[THE CLERK SHALL CAUSE TO BE ISSUED AND PUBLISHED ONCE A WEEK
FOR FOUR WEEKS, IN A NEWSPAPER OF GENERAL CIRCULATION IN THE CITY,
COMMENCING THE DAY AFTER THE DATE OF FINAL PASSAGE OF THIS
ORDINANCE, A NOTICE OF THE POSTING OF SAID PLAT CONTAINING THE
FOLLOWING STATEMENTS:
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:~DocumenCS and Settings\cfi~eas\Local SereingsATemporary Internet FilesVOLKBVChapter ll 1.doc
Page 9 of 46
(A) TIME AND PLACE OF POSTING.
(B) THE DAY OF FINAL PASSAGE AND THE EFFECTIVE DATE OF THIS
ORDINANCE WHICH ADOPTS THE PLAT AS THE OFFICIAL TIDELANDS
SUBDIVISION PLAT OF THE TIDE AND SUBMERGED LANDS CONVEYED BY THE
STATE TO THE CITY ON JANUARY 6, 1977.
(C) THAT ANY AND ALL PERSONS HAVING OR CLAIMING PREFERENCE RIGHTS
PROVIDED BY LAW AND AS HEREIN DEFINED TO ANY PART OR PARTS OF THE
SUBDIVIDED. LAND EMBRACED WITHIN THE BOUNDARIES OF SAID PLAT, WHO
FAIL TO APPLY TO EXERCISE SUCH RIGHTS UNDER THE PROVISIONS OF THIS
ORDINANCE WITHIN TWO (2) YEARS FROM AND AFTER OCTOBER 6, 1979, WHICH
IS HEREBY DECLARED TO BE THE DATE UPON WHICH APPLICATIONS THEREFOR
WILL BE FIRST ACCEPTED BY THE CITY, SHALL HAVE FORFEITED THEIR
PREFERENCE RIGHTS PROVIDED BY LAW AND THIS ORDINANCE.
(D) THAT THIS ORDINANCE WAS ENACTED TO PROTECT OCCUPANTS HAVING
PREFERENCE RIGHTS, TO AFFORD DUE PROCESS OF LAW, TO PROVIDE
PROCEDURES FOR APPLYING FOR EXERCISE OF PREFERENCE RIGHTS, FOR
HEARING AND ADJUDICATING ADVERSE CLAIMS, AND FOR CONVEYING TITLE
TO OCCUPANTS HOLDING PREFERENCE RIGHTS DEFINED BYLAW AND THIS
ORDINANCE.
(E) THAT COPIES OF THIS ORDINANCE AND APPLICATION FORMS ARE
AVAILABLE AT THE OFFICE OF THE CLERK OF THE CITY.]
11.15.070 TIME IN WHICH APPLICATIONS WILL BE ACCEPTED FOR FILING.
[APPLICATION FORMS, IN SUBSTANTIALLY THE FORM SET FORTH IN KMC
11.15.290(A) WILL BE ACCEPTED FOR FILING ONE BUSINESS DAY AFTER THE
EFFECTIVE DATE OF THIS ORDINANCE, AND ENDING TWO CALENDAR YEARS
THEREAFTER AND AT THE CLOSE OF BUSINESS AT 5:00 P.M., AFTER WHICH NO
APPLICATION FORMS WILL BE FURNISHED AND AFTER WHICH NO APPLICATIONS
WILL BE ACCEPTED FOR FILING.]
11.15.080 PROCEDURE FOR FILING APPLICATIONS.
[APPLICATIONS SHALL BE SUBMITTED, AND WILL BE RECEIVED FOR
FILING, ONLY FOR THE PURPOSE OF CLAIMING PREFERENCE RIGHTS IIDREIN
DEFINED TO THE TIDELANDS CONVEYED TO THE CITY BY THE STATE.
(A) APPLICATION FORMS WILL BE PROVIDED BY THE CLERK WITHOUT
CHARGE AT THE CITY CLERK'S OFFICE IN THE CITY HALL BUILDING.
(B) APPLICATIONS MUST BE SUBMITTED Ev TRIPLICATE.
(C) APPLICATIONS NOT CLEARLY LEGIBLE NOR PROPERLY COMPLETED AND
CERTIFIED BY THE APPLICANT WILL NOT BE ACCEPTED FOR FILING. SINCE THE
FACT ALLEGED MAY BE USED IN HEARINGS OF DISPUTES THEIR TRUTH MUST BE
CERTIFIED. THE FACTS ALLEGED WILL ALSO BE THE BASIS FOR THE
CONVEYANCES OF VALUABLE PROPERTY. WILLFUL AND DELIBERATE
MISSTATEMENTS OF FACT WILL BE EQUIVALENT TO ATTEMPTING TO OBTAIN
Ordinance No. 2238-2007 Attachment "A^ 5/31f200~ 8:39 AM
C:\Documents and Settings\cfreas\Local Settings\Temporary Internet Files\OLKB\Chapter I ll.doc
Page 10 of 46
VALUABLE PUBLIC PROPERTY BY MISREPRESENTATION AND MAYBE
PROSECUTED AS OBTAINING PROPERTY UNDER FALSE PRETENSES.
(D) APPLICATIONS MAY BE MAILED TO THE CITY CLERK, P.O. BOX 580, KENAI,
ALASKA, 99611, WITH THE PROPER DEPOSIT COMPUTED ACCORDING TO THE
NATURE OF THE APPLICATION MADE. APPLICATIONS PROPERLY COMPLETED
ACCOMPANIED WITH THE PROPER DEPOSIT WILL BE STAMPED WITH THE TIME
AND DATE OF FILING AND SIGNED BY THE PERSON ACCEPTING THE DEPOSIT.
THE TRIPLICATE COPY WILL THEN BE DELIVERED TO THE APPLICANT, OR
MAILED TO HIM IF A RETURN ENVELOPE WITH POSTAGE AFFIXED IS FURNISHED
OR DELIVERED TO THE CITY CLERK, CITY ADMINISTRATION OFFICES, AIRPORT
TERMINAL BUILDING, KENAI, ALASKA.
(E) ANY APPLICATION FOR A DEED BASED ON AN ASSERTED RIGHT OTHER
THAN A PREFERENCE RIGHT SHALL BE REJECTED.
(F) ANY APPLICATIONS NOT WAIVING THE CLASS II PREFERENCE RIGHT
SHALL BE FILED BY THE CLERK, TOGETHER WITH ALL OTHERS OF LIKE NATURE,
TO AWAIT THE OFFICIAL PROMULGATION OF THE PIERHEAD LINE. THEREAFTER
SUCH APPLICATIONS SHALL BE PROCESSED AS APPLICATIONS UNDER THE
CLASS I RIGHTS.
(G) APPLICATIONS NOT ACCOMPANIED BY THE PROPER DEPOSIT FOR COSTS
SHALL BE REJECTED.]
11.15.090 INITIAL REVIEW BY COMMISSION.
[AFTER INITIAL REVIEW OF THE APPLICATION BY THE COMMISSION, THE
APPLICANT SHALL HAVE PREPARED AT HIS OWN COST A PRELIMINARY AND
FINAL PLAT AS DESCRIBED IN THE FOLLOWING SECTION.]
11.15.100 PRELIMINARY PLAT.
[(A) THE APPLICANT SHALL PREPARE, OR HAVE PREPARED, A PRELIMLNARY
PLAT OF THE TIDE, SHORE, OR SUBMERGED LANDS WHICH HE CLAIMS. THIS
PLAT SHALL COMPLY WITH THE REQUIREMENTS HEREINAFTER SET FORTH.
(B) THE PURPOSE OF A PRELIMINARY PLAT IS TO AFFORD THE OCCUPANT AN
OPPORTUNITY OF RECEIVING PRELIMINARY REVIEW AND PREVENT THE
UNNECESSARY EXPENDITURE OF MONEY AND TIME THAT WOULD BE
NECESSITATED IF MAJOR CHANGES WERE REQUIRED.
(C) THE APPLICANT MUST FILE HIS APPLICATION ACCOMPANIED BY FOUR
BLACK OR BLUE-LINED PLATS OF THE LAYOUT.
(D) THE COMMISSION SHALL FORWARD THE PRELIMINARY PLAT TO AN
ENGINEER TO BE DESIGNATED BY THE COMMISSION, WHO SHALL REPORT TO
THE COMMISSION HIS APPROVAL OR DISAPPROVAL OF THE PLAT FOR
TECHNICAL OR ENGINEERING REASONS AND THE COMMISSION SHALL, WITHIN
NINETY (90) DAYS AFTER SUBMISSION OF THE PRELIMINARY PLAT, NOTIFY THE
APPLICANT OF THE TENTATIVE APPROVAL OR DISAPPROVAL OF THE PLAT AND
HIS REASONS THEREFOR.
Ordinance No. 2235-2007 Attachment °A" 5/31/2007 8:39 AM
C:\Documents and Settings\efreas\Local Settings\Temporary Internee Files\OLKB\Chapter l ll.doe
Page 11 of 46
(E) CONDITIONAL APPROVAL OF THE PRELIMINARY PLAT SHALL NOT
CONSTITUTE APPROVAL OF THE FINAL PLAT. RATHER, IT SHALL BE DEEMED AN
EXPRESSION OF APPROVAL AS A GUIDE TO PREPARATION OF THE FINAL PLAT.]
11.15.110 PRELIMINARY PLAT REQUIREiVIENT5.
[THE PRELIMINARY PLAT SHALL SHOW THE FOLLOWING INFORMATION:
(A) LEGAL DESCRIPTION OF LOCATION TO INCLUDE LATITUDE AND
LONGITUDE TO THE NEAREST MINUTE AT ONE CORNER OF THE SURVEY AND
THE TOTAL ACRES OF THE AREA OCCUPIED OR CLAIIvIED.
(B) NAME AND ADDRESS OF APPLICANT AND NAME OF LAND SURVEYOR, IF
ANY, WHO PREPARED THE PRELIMINARY LAYOUT.
(C) THE HORIZONTAL SCALE SHALL BE 100' TO THE INCH UNLESS OTHERWISE
APPROVED BY THE COMMISSION.
(D) DATE OF PREPARATION AND NORTH POINT.
(E) THE HORIZONTAL SCALE SHALL BE 100' TO THE NCH UNLESS OTHERWISE
APPROVED BY THE COMMISSION.
(F) THE LOCATION OF ALL ROADS WITHIN 200' OF THE TRACT, FILL
MATERIAL, EXISTING PERMANENT BUILDINGS, OR OTHER STRUCTURES WITHN
THE PARCEL, EXISTING UTILITY LINES, MEAN HIGH AND LOW TIDE LNES WITH
REFERENCE TO PERMANENT STRUCTURES AND OTHER PERMANENT FEATURES
SUCH AS SECTION LINES, AND SUCH OTHER IlVFORMATION AS MAYBE
REQUESTED BY THE CITY.
(G) SPACE FOR APPROVAL ANDlOR COMMENT BY THE COMMISSION.
(H) THE NAMES OF ADJACENT OWNERS OR CLAIMANTS, IF ANY, OTHER THAN
THE CITY.
(I) ADJACENT U.S. SURVEYS, IF ANY, GIVING THE NUMBER OF THE SURVEY.
(J) A VICINITY SKETCH OR KEY MAP SHOULD BE SHOWN ON THE
PRELIMINARY LAYOUT. THE SCALE SHALL NOT BE LESS THAN ONE-HALF INCH
TO THE MILE. THE RELATIVE LOCATION OF THE PARCEL BEING APPLIED FOR,
THE PRNCIPAL ROAD SYSTEMS AND SECTION OR SPECIAL SURVEY LINES SHALL
ALSO BE SHOWN.]
11.15,120 SURVEY PROCEDURE.
[WHEREVER FEASIBLE, DATA AS SET FORTH IN ATS 272, RECORDED IN THE
KENAI RECORDING DISTRICT AS 76-179 SHALL BE USED. WHERE ADDITIONAL
DATA IS REQUIRED THE FOLLOWING PROCEDURES SHALL GOVERN:
(A) DETERMNNG THE LINE OF MEAN HIGH TIDE.
(1) N THE CASE OF U.S. SURVEY WHICH ABUTS THE TIDELANDS, SUCH
U.S. SURVEY BENG MADE PRIOR TO THE DATE OF STATEHOOD, THE LINE OF
MEAN HIGH TIDE SHALL BE CONSTRUED TO BE EITHER THE MEANDER LNTES
ESTABLISHED ON THE SEAWARD SIDE OF THE U.S. SURVEY OR THE LINE AS
Ordinance No. 2238-2007 Attachment "A^ 5/31/2007 839 AM
C:\Documents and Settings\efreas\Local Settings\Temporary Internet Piles\OLKB1Chapter I l l.doc
Page 12 of 46
DEFINED UNDER SECTION 2(S) OF THESE REGULATIONS. WHICHEVER IS THE
LOWER.
(2) FOR TIDELANDS SURVEYS ABUTTING ANY U.S. SURVEY MADE
AFTER THE DATE OF STATEHOOD OR IN ANY LOCATION WHERE NO UPLANDS
SURVEY EXISTS, THE LINE OF MEAN HIGH TIDE SHALL BE DETERMINED BY
USING U.S.C. & G.S. BENCH MARKS (OR ANY OTHER BENCH MARKS WHICH HAVE
'BEEN ESTABLISHED FROM THAT SOURCE), AND TIDE TABLE DATUM. THE
UPLAND BOUNDARY NEED NOT FOLLOW THIS LINE IN ITS ENTIRE EXACTNESS,
BUT MAY FOLLOW IN A "MEANDER" OR "AVERAGE" LINE OF MEAN HIGH TIDE.
EACH END OF TFIE BOUNDARY SHOULD BE ESTABLISHED ON THE ELEVATION OF
MEAN HIGH TIDE. PROVIDED, HOWEVER, THAT WHERE THE TRUE LINE OF MEAN
HIGH TIDE HAS BEEN ALTERED BY FILL OR ARTIFICIAL ACCRETION, THE LINE OF
HIGH TIDE AS IT EXISTED PRIOR TO SUCH ALTERATION SHALL GOVERN.
(3) IN THE CASE THAT NO U.S.C. & G.S. BENCH MARK EXISTS WITHIN
ONE MILE OF THE PROPERTY BEING SURVEYED, THE SURVEYOR MAY, BY USING
THE TIDE TABLES FOR THE IMMEDIATE BODY OF WATER, AND APPLYING TIDAL
READINGS HE HAS TAKEN, DETERMLNE THE LINE OF MEAN HIGH TIDE AND USE
IT IN ACCORDANCE WITH PARAGRAPH (2) OF THIS SECTION. IN SOME CASES,
SUCH AS SALT OR MUD FLAT AREAS WHERE THE AVERAGE GRADE OF THE
BENCH IS TEN PERCENT (IO°Io) OR LESS AND DETERMINING THE ELEVATION OF
THE LINE OF MEAN HIGH TIDE COULD CREATE A LENGTHY HORIZONTAL
DISTANCE, THE CITY COUNCIL MAY REQUIRE THAT THE TRUE LINE OF MEAN
HIGH TIDE BE ESTABLISHED, REGARDLESS OF THE DISTANCE FROM A KNOWN
BENCH MARK.
(B) METHOD OF ESTABLISHING SIDE BOUNDARY LINES.
(1) INFIXING THE SIDE BOUNDARY LINES, THE GENERAL RULES OP
EXTENDING RIIARIAN BOUNDARY LINES, AS OUTLINED BY SUCH AUTHORS AS
RAYNER, CLARK OR BROWN, SHALL BE FOLLOWED. IIQ THE EVENT THAT
ACTUAL OCCUPANCY DOES NOT MATCH THE RIPARIAN BOUNDARIES, THE
SURVEY SHALL BE MADE TO INCLUDE THE OCCUPANT'S HOLDINGS AND NOT TO
ENCROACH ON THE ADJOINING OCCUPANT.]
11.15.130 PROCEDURE ON FINAL PLAT.
[(A) THE FINAL PLAT SHALL CONFORM SUBSTANTIALLY TO THE PRELIMINARY
LAYOUT AS APPROVED BY THE COMMISSION.
(B} THE FINAL PLAT SHALL BE SUBMITTED TO THE CITY CLERK ON GOOD
QUALITY TRACING CLOTH, IN INK, OR MYLARS TOGETHER WITH FIVE PRINTS.
(C) THE FINAL PLAT SHALL BE DRAWN' TO SCALE OF P' EQUALS 100', WITH AN
OPTION OF USING 1"EQUALS 20' OR 40', ON SHEETS OF ONE OF THREE SIZES: 18"
X 24", 31 1/2" X 34", OR 22" X 36", UNLESS OTHERWISE APPROVED BY THE
COMMISSION. WHEN MORE THAN ONE SHEET IS REQUIRED, AN INDEX SHALL BE
FILED SHOWING THE ENTIRE PARCEL WITH THE SHEETS IN NUMERICAL ORDER,
AND EACH SHEET SHOWING THE TOTAL NUMBER, LE., SHEET 1 OF 3. WHEN MORE
Ordinance No. 2238-2007 ACtachmenP "A^ 5/31/2007 839 AM
C:~Documents and Settings\cfreas\Local Settings\Temporary Internet FilesVOLKBVChapter lll.doc
Page 13 of 46
THAN ONE SHEET IS SUBMITTED, ONLY THE LAST MUST HAVE THE APPROVAL
BLOCKS, BUT ALL SHEETS MUST BE THE SAME SIZE.
(D) WHEN THE FINAL PLAT HAS BEEN APPROVED BY THE COMMISSION, ONE
COPY SHALL BE SENT, ALONG WITH THE DEED TO THE PROPERTY, TO THE
MAGISTRATE OF THE RECORDING DISTRICT IN WHICH THE TRACT LIES FOR
OFFICIAL RECORDING. SPECIAL INSTRUCTIONS SHALL BE SENT TO THE
MAGISTRATE INSTRUCTING HIM TO SEND THE DEED TO THE OCCUPANT AFTER
RECORDING. ONE COPY OF THE PLAT WILL BE RETURNED TO THE OCCUPANT.
THE ORIGINAL TRACING CONTAINING THE CERTIFICATION BY THE COMMISSION
WILL BE RETAINED BY THE CITY. PRINTS OR DUPLICATE TRANSPARENCIES WILL
BE FURNISHED AT COST OF REPRODUCTION.]
11.15.140 FINAL PLAT REQUIREMENTS.
[(A) THE FINAL PLAT SHALL INCLUDE ALL INFORMATION REQUIRED ON THE
PRELIMINARY PLAT.
(B) THE FINAL PLAT MUST REPRESENT AN ACTUAL SURVEY MADE BY A
PERSON WHO HAS BEEN QUALIFIED BY THE STATE OF ALASKA, BOARD OF
ENGINEERS & ARCHITECTS EXAMINERS TO PRACTICE LAND SURVEYING IN THE
STATE OF ALASKA.
(C) IN ADDITION THERETO, THE FOLLOWING INFORMATION SHALL BE SHOWN
ON THE FINAL PLAT:
(1) BOUNDARY LINES OF THE PARCEL WITH LENGTH AND BEARINGS
WHICH MUST CLOSE WITHIN THE LIMITS OF ON'E TO 5,000. IF THE SEAWARD
LIMITS OF THE SURVEY FALLS WITHIN THE LINE OF MEAN LOW TIDE, THE
SEAWARD BOUNDARY MUST REPRESENT LINES ACTUALLY ESTABLISHED BY
THE SURVEYOR.
(2) ALL EASEMENTS AS REQUIItED BY THE CITY.
(3) BASIS OF BEARINGS USED,
(4) A PROPERLY LABELED LEGEND SHOWING MONUMENTS AS FOUND
OR ESTABLISHED.
(5) THE COURSE OF THE SHORELINE FOR AN ADDITIONAL 400' FROM
EACH SIDE OF THE SURVEY.
(D) MONUMENTS.
(1) MINIMUM REQUIREMENTS: MONUMENTS SHALL CONSIST OF A 11/2"
GALVANIZED IRON PIPE, 30 OR MORE INCHES LONG. THIS PIPE SHALL HAVE A
FOUR-INCH FLANGE ACROSS THE BOTTOM AND SHALL BE FILLED WITH
CONCRETE. FIRMLY EMPLACED IN THE CONCRETE AT THE TOP SHALL BE A
BRASS OR BRONZE CAP. THE PIPE SHALL BE THOROUGHLY TAMPED WHEN SET.
(2) THE BRASS OR BRONZE CAP SHALL HAVE A MINIMUM OF TWO-INCH
DIAMETER ACROSS THE TOP AND 3/4" BY 21/2" SHANK. EACH CAP SHALL BE
MARKED IN ACCORDANCE WITH THE MANUAL OF SURVEYING INSTRUCTIONS
Ordinance No. 2238-7A07 Attachment "A" 5!31/2007 839 AM
C:\Documents and Settings\cfi~eas\Local Settings\Temporary Internet Files\OLKB\Chapter l l l.doc
Page 14 of 46
AS COMPII,ED BY THE BUREAU OF LAND MANAGEMENT AND SHALL ALSO SHOW
THE REGISTRATION NUMBER OF THE SURVEYOR.
(3) WHERE IMPRACTICABLE TO 5ET AN IRON PIPE MONUMENT, A
TABLET CONTAINING A MINIMUM OF 1,000 CUBIC INCHES OF CONCRETE AND A
BRASS OR BRONZE CAP MARKING THE ACTUAL CORNER POINT MAY BE USED.
SHOULD THE POINT FOR A CORNER BE IN A PLACE WHICH WOULD BE
IMPRACTICABLE TO MONUMENT, WITNESS CORNERS SHALL BE SET IN A SAFE
PLACE ON THE SURVEY BOUNDARY LINE OR HAVE TWO REFERENCE
MONUMENTS SET. THE MONUMENTS ON THE UPLANDS SIDE OF THE SURVEY
SHALL BE REFERENCED TO BEARING OBJECTS, SUCH AS TREES, ROCKS, PILING,
BUILDINGS, ETC., OR HAVE TWO REFERENCE MONUMENTS SET MARKING THE
CORNER.
(E) THESE REFERENCES MAY BE SHOWN ON THE PLAT OF SURVEY OR MAY BE
LISTED SEPARATELY ON A PLAT AS DESCRIBED UNDER KMC 11.15.130(C).
(1) UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL, EACH
SURVEY SHALL HAVE AT LEAST FOUR MONUMENTS, EACH FULLY DESCRIBED IN
THE PLAT OF SURVEY. IT IS DESIRABLE BUT NOT MANDATORY THAT
MONUMENTS BE SET AT ALL EXTERIOR ANGLE POINTS OF THE PARCEL. THE
LINE OF SIGHT BETWEEN ADJACENT MONUMENTS SHALL BE UNOBSTRUCTED.
THE DISTANCE BETWEEN ADJACENT MONUMENTS SHALL NOT EXCEED 1,320 FT.
NO PART OF THE PARCEL SHALL BE FARTHER THAN 1,320 FT. FROM A
MONUMENT UNLESS OTHERWISE APPROVED BY THE CITY COUNCIL.
(2) IF THE POINT FOR THE SEAWARD CORNER FALLS IN AN UNSAFE
PLACE, A WITNESS CORNER SHALL BE ESTABLISHED ON THE SIDE BOUNDARY
LINE.
(F) RELATIONSHIP TO KNOWN MONUMENT.
(1) BEARINGS OF ALL LINES SHALL BE REFERRED TO THE TRUE
MERIDIAN. THE MAGNETIC NEEDLE MAY NOT BE USED FOR THIS PURPOSE.
BEARINGS SHALL BE OBTAINED BY DEFLECTION FROM EXISTING OFFICIAL
SURVEYS AT THE G.L.O., B.L.M., U.S.C., AND G.S., U.S.G.S., THE ALASKA DIVISION
OF LANDS, OR MONUMENTS WITH PROPER IDENTIFICATION WHICH ARE
DELINEATED ON RECORDED PLATS, UNLESS OTHERWISE PROVIDED FOR IN
THESE REGULATIONS.
(2) TRUE BEARINGS AND DISTANCES TO THE NEAREST ESTABLISHED
SURVEY LINES, SUCH AS THOSE LISTED PREVIOUSLY, WHICH SHALL BE
ACCURATELY DESCRIBED ON THE PLAT, SHALL BE SHOWN.]
11.15.150 DEPOSITS FOR COSTS PREREQUISITE TO FILING.
[THE APPLICATION FORM WILL ASSIST THE APPLICANT IN DETERMIlVING
THE PROPER COSTS TO ADVANCE, WHICH WILL DEPEND UPON THE NATURE OF
THE RIGHT CLAIMED. IN ALL CASES A FILING FEE OF TEN DOLLARS ($10.00) WILL
BE REQUIRED. SURVEY COSTS DEPEND UPON THE AREA CLAIMED AT THE RATE
OF $.01516 PER SQUARE FOOT. ZF THE AREA CLAIMED IS DIFFERENT FROM THE
Ordinance No. 2238-2007 Acfachment "A" 5/31/2007 8:39 AM
C:ADocnments and Settings\cfreaslLocat SettingslTemporary Internet FilesVOLKBVChaptex lll.doc
Page 15 oP 46
LOT AS IT APPEARS ON THE PLAT, THE APPLICANT SHALL SHOW THE
MEASUREMENTS OF THE ADDITIONAL OR LESSER AREA CLAIMED AND
COMPUTE AND PAY THE DIFFERENT SURVEY COST ACCORDINGLY. TRANSFER
COSTS WILL BE THE SAME IN ALL CASES. THEY COVER THE COST OF TIME
ESTIMATED TO BE REQUIRED TO EXAMINE, PROCESS, AND APPROVE THE
APPLICATION, AS WELL AS TO PREPARE AND EXECUTE THE DEED, PUBLISH
NOTICE, GIVE NOTICE OF ADDITIONAL COSTS, IF ANY, AND GIVE NOTICE TO
APPLICANT. IN ALL CASES, TRANSFER COSTS WII.L BE IN THE AMOUNT OF $35.00.
DEPOSIT FOR APPRAISAL COSTS WILL BE REQUIRED IN ALL CASES OF CLASS III
PREFERENCE RIGHTS, OR WHERE ANOTHER ASSERTED RIGHT IS DETERMINED BY
THE COUNCIL TO BE A CLASS III RIGHT. APPRAISAL COSTS WILL DEPEND UPON
THE AREA INVOLVED AND THE COMPLEXITY OF THE APPRAISAL SOUGHT.
WHERE REQUIRED AS A DEPOSIT, THE MINIMUM AMOUNT IS FIFTY DOLLARS
($50), BUT ADDITIONAL AMOUNTS NOT EXCEEDING $100 MAY BE REQUIRED
PRIOR TO DELIVERY OF DEED.]
11.15.160 ADDITIONAL COSTS IN CERTAIN CASES.
[ASIDE FROM DEPOSITS REQUIRED AT THE TIME OF FILING APPLICATIONS,
ADDITIONAL COSTS WILL BE REQUIRED TO BE PAID PRIOR TO HEARLNGS WHERE
DISPUTES REQUIRE HEARINGS, AND FOR COST OF LAND UNDER A CLASS III
RIGHT AS WELL AS APPRAISAL THEREOF WHEN A PREFERENCE RIGHT SOUGHT
TO BE EXERCISED IS DETERMINED TO BE A CLASS III RIGHT, AS FOLLOWS:
(A} WHEN THE AREA CLAIMED DOES NOT COMPLY WITH THE BOUNDARIES OF
THE LOT SHOWN ON THE PLAT, IT IS NECESSARY TO HAVE A HEARING TO
ESTABLISH THE VALIDITY OF THE RIGHT CLAIMED AND WHETHER IT IS
NECESSARY FOR THE PLAT TO BE CHANGED TO COMPLY WITH THE
APPLICATION. THIS MAY REQUIRE NOTICE TO BE GIVEN TO ADJACENT
OCCUPANTS INTERESTED IN THE DIFFERENCE BETWEEN THE LANDS CLAIMED
AND LAND AS SHOWN ON THE PLAT SO THAT ALL PARTIES IN INTEREST MAY BE
HEARD AT THE HEARING.
(B) WHEN APPLICATIONS CONFLICT WITH THE SAME AREA OR PORTIONS
THEREOF, IT SHALL BE NECESSARY TO CONDUCT A HEARING TO DETERMINE
THE FACT AND THE ISSUE IN QUESTION. CONFLICTING CLAIMS WILL BE
CAREFULLY SCRUTINIZED AND EACH DISPUTING PARTY WILL BEAR THE
BURDEN OF PROVING FACTS SUFFICIENT TO ESTABLISH THE VALIDITY OF HIS
CLAIM.
(C) THE PARTY FILNNG AN APPLICATION CONFLICTING WITH A CLAIM
PREVIOUSLY FILED SHALL BE REQUIRED TO DEPOSIT HEARINGS COSTS IN THE
AMOUNT OF $100. IF THE CONFLICT IS NOT KNOWN AT THE TIIvIE OF FILING, THE
APPLICANT SHALL BE ADVISED OF THE CONFLICT AS SOON AS IT IS KNOWN AND
OF THE NEED TO DEPOSIT THE HEARING COST DEPOSIT.
(D) THE APPLICANT WHO AFTER HEARIlVG AND DETERMINATION BY THE
COUNCIL IS DETERMINED TO HAVE CLAIMED THE LAND OF ANOTHER SHALL BE
THE PARTY TO BEAR THE COST OF THE HEARING. IF SUCH PARTY DID NOT
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Docmnents and SeC[ings\cfreas\Local Settings\Temporary Internet Files\OLKB\Chapter ll l.doc
Page 16 of 46
DEPOSIT SUCH COSTS, NO DEED SHALL BE DELIVERED TO HIM UNTIL THE COST
IS PAID. WHERE THE DEPOSITOR IS THE PREVAILING PARTY, THE HEARING COST
DEPOSITED SHALL BE REFUNDED TO HIM BY THE CITY.
(E) WHEN TITLE BY CLASS III PREFERENCE RIGHT IS CLAIMED, THE
APPLICANT SHALL BE REQUII2ED TO DEPOSIT THE APPRAISED PURCHASE PRICE
AFTER APPRAISAL HAS BEEN MADE AND THE PURCHASE PRICE HAS BEEN SO
DETERMINED. THE SAME PROCEDURE WILL BE APPLIED WHEN NO APPLICATION
UNDER ANOTHER CLASS OF RIGHT IS SOUGHT BUT IS DETERMINED THAT THE
ONLY AVAILABLE RIGHT TO THE APPLICANT IS A CLASS III RIGHT.
(F) WHEN A PREFERENCE RIGHT IS SOUGHT TO BE EXERCISED OTHER THAN' A
CLASS III RIGHT AND SUCH RIGHT IS DETERMNED TO BE A CLASS RIGHT; THEN
THE APPLICANT SHALL BE REQUIRED TO DEPOSIT THE ESTIMATED COST OF
APPRAISING THE PROPERTY CLAIMED.
(G) THE APPLICANT WHO RECEIVES THE DEED FROM THE CITY SHALL AT HIS
OWN COST BEAR THE COST OF RECORDING THE DEED.]
11.15.170 PROCEDURES FOR PROCESSING FILED APPLICATIONS.
[THE CLERK SHALL CAUSE THE FOLLOWING PROCEDURES TO BE CARRIED
OUT:
(A) ALL COPIES OF APPLICATIONS ACCEPTED FOR FILING SHALL BE STAMPED
WITH TIME AND DATE OF FILING AND AN APPLICATION NUMBER IN
CHRONOLOGICAL ORDER OF FILING.
(B) ALL ORIGINAL APPLICATIONS SHALL BE FILED IN A PERMANENT
REGISTER AND THE NAMES OF THE APPLICANTS ENTERED IN AN ALPHABETICAL
INDEX WHICH SHALL BE A PERMANENT PART OF SUCH REGISTER.
(C) THE APPLICATION REGISTER SHALL BE AVAILABLE FOR PUBLIC
INSPECTTON DURING OFFICE HOURS OF THE CLERK EXCEPT WHEN N ACTUAL
USE FOR FILING AND INDEXING.
(D) CERTIFIED COPIES OF ALL APPLICATIONS SHALL BE PREPARED FOR ALL
PERSONS UPON REQUEST UPON THEIR PAYING TWO DOLLARS ($2.00) PER PAGE
FOR COPIES OF SAID APPLICATIONS AND ANY ATTACIEvIENTS FORMING A PART
THEREOF.
(E) PROCESSING OF DUPLICATE APPLICATIONS. THE THIRD COPY OF THE
APPLICATION WILL BE RETURNED TO THE APPLICANT AS HIS RECORD AND AS
RECEIPT FOR DEPOSIT MADE, OR MAILED TO APPLICANT IF HE HAS. PROVIDED A
RETURN ENVELOPE. THE SECOND COPY SHALL BE THE WORKING FILE COPY TO
BE HANDLED AND PROCESSED AS FOLLOWS:
(1) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING
WAIVERS ATTACHED AND WHICH APPLY FOR LANDS WHICH COMPLY WITH THE
PLAT WITH RESPECT TO AREA ANID BOUNDARY LOCATIONS SHALL BE
TRANSMITTED TO THE CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC
11.15.190. APPLICATIONS TO EXERCISE CLASS I PREFERENCE RTGHTS WHICH DO
NOT HAVE WAIVERS ATTACHED, IRRESPECTIVE OF WHETHER THE LAI~TDS
Ordinance No. 2238-2007 Attachment "A'• 5/31/2007 8:39 ANI
C:\Documents and SeCCings\cfreas\Local Settings\Temporary Internet Piles\OLKB\Chapter l l l.doc
Page 17 oP46
APPLIED FOR COMPLY WITH THE PLAT SHALL BE SEGREGATED FOR HANDLING
IN THE SAME MANNER AS CLASS II PREFERENCE RIGHT APPLICATIONS.
(2) APPLICATIONS TO EXERCISE CLASS I PREFERENCE RIGHTS HAVING
WAIVERS ATTACHED, AND WHICH CLAIM LANDS WHICH DO NOT COMPLY WITH
THE PLAT WITH RESPECT TO AREA AND BOUNDARY LOCATIONS, SHALL BE
TRANSMITTED TO THE CITY ENGINEER FOR HANDLING AS PROVIDED IN KMC
11.15.190 AND FURTHER PROCESSING AS PROVIDED IN KMC 11.15.220.
(3) APPLICATIONS TO EXERCISE CLASS II PREFERENCE RIGHTS SHALL
BE SEGREGATED AND KEPT WITH CLASS I PREFERENCE RIGHT APPLICATIONS
NOT HAVING WAIVERS ATTACHED. ALL SUCH APPLICATIONS SHALL BEHELD IN
ABEYANCE BY THE CITY UNTIL SUCH TLME AS THE PIERHEAD LINE IS
ESTABLISHED BY THE CORPS OF ENGINEERS, WHEREUPON SUCH APPLICATIONS
SHALL BE PROMPTLY HONORED AND PROCESSED IN THE MANNER HEREIN
DESCRIBED FOR CLASS ]PREFERENCE RIGHT APPLICATIONS, WHERE WAIVERS
ARE ATTACHED.
(4) APPLICATIONS TO EXERCISE CLASS III PREFERENCE RIGHTS, AND
ALL APPLICATIONS DETERMINED IN WHOLE OR IIQ PART TO BE CLASS III, SHALL
BE TRANSMITTED TO THE ASSESSOR FOR APPRAISAL AS PROVIDED IN KMC
11.15.180.
(5) NO APPLICATIONS WHICH COMBINE CLASS I, CLASS II, AND CLASS
III, OR ANY COMBINATION OF SUCH PREFERENCE RIGHTS, WILL BE ACCEPTED
FOR FILING. ANY SUCH APPLICATION PRESENTED FOR FILING SHALL BE
RETURNED TO THE APPLICANT FOR REVISION INTO TWO OR MORE
APPLICATIONS, EACH OF WHICH WILL APPLY FOR LAND UNDER ONLY ONE TYPE
OF PREFERENCE RIGHT.
(6) AN APPLICATION TO EXERCISE ONE CLASS OF PREFERENCE RIGHT
WHICH IN PART COMPLIES WITH THE PLAT WITH RESPECT TO AREA AND
BOUNDARY LOCATIONS, BUT DOES NOT WHOLLY COMPLY WITH THE PLAT IN
SUCH RESPECTS, SHALL BE TREATED AS IF NO PART OF THE APPLICATION SO
COMPLIES WITH THE PLAT AND SHALL BE PROCESSED FOR CONTEST HEARING.]
11.15.180 APPRAISAL.
[ALL APPLICATIONS FOR CLASS II PREFERENCE RIGHTS SHALL BE
TRANSMITTED TO A PROFESSIONAL APPRAISER FOR APPRAISAL. HIS APPRAISAL
SHALL BE MADE ON A FORM PREPARED IN DUPLICATE, THE ORIGLNAL OF WHICH
SHALL BE ATTACHED TO THE APPLICATION AND THE DUPLICATE OF WHICH
SHALL BE RETAINED FOR HIS RECORDS. APPLICATIONS WHEN APPRAISED SHALL
BE TRANSMITTED TO THE CITY ENGINEER FOR FURTHER PROCESSING.]
11.15.190 REVIEW BY CITY ENGINEER.
[ALL APPLICATIONS BEING READY FOR PROCESSING SHALL BE REVIEWED
BY THE CITY ENGINEER. UPON REVIEW AND COMPARISON WITH THE PLAT, HE
SHALL MAKE HIS REQUEST TO THE HARBOR COMMISSION GIVING A COPY
Ordinance No. 2238-2007 Attachment "A" 5/31/2009 839 AM
C:\Documents and SelGngs\cfreas\Local Settings\Temporary Internet Files\OLKS\Chapter lli.doc
Page 18 of 46
THEREOF TO THE APPLICANT AS TO WHETHER OR NOT THE APPLICATION SEEKS
TO EXERCISE A PREFERENCE RIGHT TO LAND WHICH IS DESCRIBED ON THE
PLAT, AND COMPLIES WITH IT IN RESPECT TO AREA AND BOUNDARY
LOCATIONS.1
11.15.200 RECOMMENDED APPROVAL BY COMMISSION.
[THE KENAI ADVISORY HARBOR COMMISSION SHALL REVIEW ALL
APPLICATIONS FOR TIDELANDS UPON THE SUBMISSION OF THE CITY
ENGINEER'S REPORT. THE COMMISSION MAY CONDUCT PUBLIC HEARINGS TO
VERIFY THE VALIDITY OF THE APPLICANT' S CLAIM AND REQUEST ADDITIONAL
EVIDENCE BY WAY OF AFFIDAVITS AND THE LIKE IN ORDER TO COME TO
RECOMMEND SAID CLAIM FOR APPROVAL BY THE CITY COUNCIL NOTIFYING
APPLICANT THEREOF BY MAIL SENT TO THE ADDRESS STATED ON HIS
APPLICATION. THE COMMISSION MAY PROVIDE ACHECK-OFF LIST TO AID IT IN
CONSIDERING APPLICATIONS. THE CITY COUNCIL SHALL CONSIDER FOR
APPROVAL THE CLAIM OF THE APPLICANT WITHIN THE TIME LIMITATIONS AND
WITH THE RIGHT OP APPEAL GIVEN PURSUANT TO KMC 11.15.240.]
11.15.210 PROCESSING OF APPROVED APPLICATIONS BY CLERK AND NOTICE
TO PUBLIC.
[ALL APPLICATIONS RETURNED TO THE CLERK APPROVED BY THE CITY
ENGINEER, AND APPRAISED BY THE ASSESSOR IF REQUII2ED, SHALL BE
PROCESSED BY THE CLERK IN THE FOLLOWING MANNER:
(A) THE CLERK SHALL ASCERTAIN IF THE DEPOSIT MADE BY THE APPLICANT
IS SUFFICIENT TO PAY ALL KNOWN AND ESTIMATED COSTS OF SURVEY,
APPRAISAL, TRANSFER, AND PURCHASE, IF OF CLASS III AND IF NOT, TO ADVISE
THE APPLICANT THAT THE REMINDER DUE SHALL BE DEPOSITED WITH THE
CLERK BEFORE FURTHER PROCESSING.
(B) IF OR WHEN THE DEPOSIT IS SUFFICIENT TO PAY ALL SUCH COSTS, THE
CLERK SHALL CAUSE TO BE PUBLISHED ONCE A WEEK FOR FOUR WEEKS, IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE CITY, THE FOLLOWING:
(I) NOTICE OF THE NAMES OF THE APPLICANT(S), THE BLOCK AND LOT
NUMBERS OF THE PROPERTY CLAIMED ACCORDING TO PLAT DESIGNATIONS;
(2) THE PREFERENCE RIGHT CLAIMED;
(3) THE IMPROVEMENTS MADE;
(4) THE LENGTH OF TIME (INCLUDING THE DATES) THE APPLICANT
OCCUPIED THE LAND; AND
(C) IF CLASS III ITS APPRAISED VALUE, AND THAT THE CITY WILL ISSUE TO
THE APPLICANT(S) ITS DEED THEREFOR WITHIN THIl2TY (30) DAYS AFTER THE
LAST DATE OF PUBLICATION, PROVIDED THAT BEFORE DATE OF LAST
PUBLICATION NO ADVERSE APPLICATION OR CLAIM HAS BEEN FILED WITH THE
CITY.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:ADocuments znd SettingsAcPreas\Local Seffings\Tempora~y Internet FilesVOLKBVChzpter I ll.doc
Page 19 of 46
(D) DURING SAID PERIOD OF PUBLICATION, THE APPLICATIONS THEREOF
SHALL BE RETURNED TO THE CITY ENGINEER WHO, AT THE END OF SAID PERIOD
OF PUBLICATION, SHALL NOTE ON THE APPLICATION WHETHER OR NOT ANY
ADVERSE CLAIMS HAVE BEEN FILED FOR THE LAND IN QUESTION.
(E) IF ADVERSE CLAIMS HAVE BEEN FILED, THE APPLICATIONS SHALL BE
FURTHER PROCESSED FOR HEARING. IF NO ADVERSE CLAIMS HAVE BEEN FILED,
THE RESPECTIVE APPLICATIONS SHALL BE RETURNED TO THE CLERK.]
11.15.220 DEEDS-PERMANENT REGISTER.
[THE CLERK SHALL THEN CAUSE TO BE PREPARED A QUIT-CLAIM DEED
CONVEYING SUCH LAND TO THE APPLICANT(S)IHAT THE CITY HAS AND
TRANSMIT THE QUIT-CLAIM DEED TO THE MANAGER FOR EXECUTION. NOTICE
SHALL THEN BE SENT TO THE APPLICANT TO TAKE DELIVERY OF SAID DEED AT
THE OFFICE OF THE CLERK, WHO SHALL DELIVER THE SAME TO THE APPLICANT
IF ALL REQUIREMENTS HAVE BEEN MET AND ALL COSTS, INCLUDING PURCHASE
PRICE, IF REQUII2ED, HAVE BEEN PAID. DUPLICATE ORIGINALS OF ALL
EXECUTED DEEDS SHALL BE KEPT IN THE OFFICE OF THE CLERK IN A
PERMANENT REGISTER ENTITLED "KENAI TIDELANDS DEEDS" WITH
PERMANENT ALPHABETICAL INDEX OF GRANTEES.]
11.15.230 SPECIAL PROCEEDINGS FOR DISPUTED CLAIMS.
(THE COMMISSION SHALL SIT AS A QUASI ADJUDICATORY BODY TO SET
DISPUTES FOR HEARING AND HEAR THE EVIDENCE UNDER OATH OF THE
PARTIES TO THE DISPUTES. PROCEEDINGS SHALL BE INFORMALLY CONDUCTED
BUT TESTIMONY TAKEN UNDER OATH, AND NOTICE OF THE PROCEEDINGS
SHALL BE GIVEN TO THE DISPUTING PARTIES. THEIR OBJECT SHALL BE TO
DETERMINE WITHOUT DELAY THE RESPECTNE BASIS OF THE CONFLICTING
CLAIMS. UPON THE SUBMISSION OF EACH DISPUTE, THE COMMISSION SHALL
PREPARE A SHORT SUMMARY ON THE CONFLICTING CLAIMS AND THE
EVIDENCE SUBMITTED IN SUPPORT THEREOF, TOGETHER WITH THEIR WRITTEN
FINDINGS OF FACT, AND CONCLUSIONS OF LAW.]
11.15.240 PROCEEDINGS FOR DETERMINATION BY COUNCIL OF ALL DISPUTES.
[UPON RECEIPT OF THE WORKING FILES IN ALL CASES OF DISPUTES, AND
THE SUMMARY OF THE HEARINGS OFFICER, TOGETHER WITH COPIES OF
NOTICES OF HEARINGS SERVED UPON OR MAILED TO ALL PARTIES TO THE
DISPUTE, THE COUNCIL SHALL SET THE DISPUTE OF HEARING AND
DETERMINATION, AND CAUSE NOTICE TO BE SERVED ON ALL PARTIES. UPON
THE COUNCIL HAVING HEARD THE DISPUTE IT SHALL ENTER ITS RULING
THEREON AS QUICKLY AS POSSIBLE, BUT NOT LATER THAN TEN (10) DAYS
AFTER THE MATTER IS SUBMITTED. AGGRIEVED PERSONS SHALL HAVE THE
RIGHT OF APPEAL TO THE SUPERIOR COURT, WITHIN THIRTY (30) DAYS AFTER
THE RULING OF THE COUNCIL IS RENDERED.]
Ordinance No. 2235-2007 Attachment "A° 5/31/200'7 8:39 AM
C:\Documents and Settings\cfi'eas\Local Settings\Temporary Internet Piles\OLKB\Chapter l ll.doc
Page 20 oP 46
11.15.250 DETERMINATION UPON STIPULATION OF FACTS.
[WHEREVER POSSIBLE, TO REACH AGREEMENT OF THE PARTIES AT
HEARINGS BEFORE THE COMMISSION, A STIlULATION OF FACTS SHALL BE
PREPARED AND AGREED UPON BY THE PARTIES. WHERE THIS IS DONE, THE
COMMISSION SHALL PREPARE AND ATTACH ITS CONCLUSIONS OF LAW AND
SLBMIT THE FILE TO THE CITY ENGINEER TO DETERMINE IF THE CITY'S
INTERESTS ARE AFFECTED BY THE STIPULATION, OR IF A BOUNDARY CHANGE IS
REQUIRED AND NO THIItD PARTY OR CITY INTERESTS ARE AFFECTED
ADVERSELY BY THE PROPOSED CHANGE IN BOUNDARIES OF LOTS SHOWN ON
THE PLAT, UPON APPROVAL OF THE COUNCIL THE PLAT SHALL BE DIRECTED TO
BB CHANGED. SHOULD IT BE DETERMINED BY THE CITY ENGINEER THAT THE
STIl'ULATION ADVERSELY AFFECTS THE INTEREST OF THE CITY OR THOSE OF
THIlZD PARTIES, THE DISPUTE SHALL BE RETURNED TO THE COMMISSION FOR
FURTHER PROCEEDINGS UPON NOTICE GIVEN.]
11.15.260 REJECTION OF PROTESTS OTHER THAN BY APPLICANT.
[NO OBJECTIONS WILL BE RECEIVED TO PROPOSED ISSUANCE BY DEED BY
THE CITY ON PUBLICATION OF NOTICE THEREOF, NOR WILL ANY PERSON BE
PERMITTED TO APPEAR AND $E LARD AT ANY HEARING OF A DISPUTE BEFORE
THE COMMISSION OR THE COUNCIL, UNLESS SUCH OBJECTOR OR PERSON IS AN
APPLICANT FOR PREFERENCE RIGHTS OF CLASS I OR II AND HAS FILED AN
APPLICATION WITH THE CLERK. THE FOREGOING SHALL NOT PREVENT THE
APPEARANCES BEFORE THE COMMISSION OR COUNCIL OF WITNESSES
APPEARING ON BEHALF OF THE PARTIES IN DISPUTE OR PERSONS CALLED BY
THE COMMISSION OR COUNCIL WHO MAY HAVE PERSONAL KNOWLEDGE
CONCERNING THE VERIFICATION OF CLALVi5.]
11.15.270 HANDLING OF DEPOSIT AND PURCHASE FUNDS.
[(A) ALL FUNDS RECEIVED AS DEPOSITS WITH APPLICATIONS FOR COSTS OR
PURCHASE PRICE FOR TIDELANDS SHALL BE DEPOSITED BY THE FINANCE
DIRECTOR IN THE GENERAL FUND. SUCH DEPOSITS WILL BE CREDITED BY THE
FINANCE DIRECTOR AS FOLLOWS:
(1) SURVEY COSTS - AS A CREDIT TO DISBURSEMENTS MADE BY THE
CITY FOR COSTS OF PREPARING THE TIDELANDS SUBDIVISION PLAT.
(2) TRANSFER COSTS - TO ADMINISTRATIVE COSTS AS DEEDS ARE
ISSUED.
(3) APPRAISAL COSTS - TO ADMINISTRATIVE COSTS AS EARNED, OR AS
CREDIT TO APPRAISAL COSTS INCURRED.
(B) PURCHASECOSTS OF CLASS II LANDS-SHALL BE CREDITED TO A
SEPARATE ACCOUNT INS THE GENERAL FUND TO PAY FOR IMPROVEMENTS IN
TIDELANDS AREAS CONSISTING OF FILL, STREET, SIDEWALK, AND SEWER
IMPROVEMENTS.]
Ordinance No. 2238-?A07 Attachment "A" 5l31YZ007 8:39 AM
C:\Documents and Settings\cfreas\Local Settngs\Temporary Internet Files\OLKB\Chapter 111.doc
Page 31 of 46
11.15.280 FORFEITURE OF PREFERENCE RIGHTS.
[ANY OCCUPANT, OWNER, OR HOLDER OF PREFERENCE RIGHTS AS HEREIN
DEFINED, WHO HAS NOT APPLIED TO THE CITY FOR TITLE THERETO AS HEREIN
PROVIDED, ON OR BEFORE TWO (2) YEARS AFTER THE DATE APPLICATIONS TO
EXERCISE PREFERENCE RIGHTS WILL BE ACCEPTED FOR FILING BY THE CITY
UNDER THIS ORDLNANCE, BY A PROPERLY COMPLETED APPLICATION DULY
FILED WITH THE CLERK AND ACCOMPANIED BY THE REQUIRED DEPOSIT, SHALL
HAVE FORFEITED HIS RIGHT TO ASSERT THIS PREFERENCE RIGHTS AND
ACQUIRE TITLE TO TIDELANDS SUBJECT THERETO FROM THE CITY; AND SUCH
TIDELANDS AND CONTIGUOUS SUBMERGED LANDS SUBJECT TO SUCH UNUSED
PREFERENCE RIGHTS SHALL THEREAFTER BE FREE AND CLEAR OF ALL CLAIMS
TO PREFERENCE RIGHTS AND THE CITY SHALL HAVE NO OBLIGATION TO
CONVEY THE SAME TO ANY PERSON OR PERSONS WHOSOEVER, AND SAID LAND
SHALL THEN BE AND REMAIN THE PROPERTY OF THE CITY AND BE SUBJECT TO
SUCH DISPOSITION AS PROVIDED FOR BY LAW OR ORDINANCE.]
11.15.290 FORMS.
[THE CLERK SHALL CAUSE TO BE PRINTED APPLICATION FORMS AND
OTHER FORMS FOR USE IN PROCESSING THE SAME IN SUBSTANTIALLY THE
FOLLOWING FORM:
(A)
APPLICATION FOR TIDELAND
PREFERENCE RIGHTS
NAME
HOME ADDRESS
APPLICATION NO
POST OFFICE ADDRESS
MARK X TO DESIGNATE NATURE OF PREFERENCE RIGHT CLAIMED:
CLASS I_
CLASS II,
CLASS III
DOES THE TIDELAND PLAT 272 CORRECTLY SHOW THE LAND APPLIED FOR:
YES NO
IF TIDELAND PLAT DOS NOT CORRECTLY SHOW LAND APPLIED FOR, DESCRIBE IT
BY METES AND BOUNDS AND ATTACHED PLAT OF LAND APPLIED FOR 8USE
ATTACHMENT IF MORE SPACE IS REQUIRED).
ALL CLAIMED IMPROVEMENTS WERE FIlZST CONSTRUCTED AND USED (1)
BEFORE SEPTEMBER 7, 1957? (2) BEFORE SEPTEMBER 7, 1957 AND
JANUARY 3, 1969 ? (3) AFTER JANUARY 3, 1959?
Ordinance No. 2238-2007 Attachment "A° 5/31/2007 8:39 AM
C:\Documents and Settings\cfreas\Loca] Settings\Temporazy Internet Files\OLKB\Chapter 11 t.doe
Page 22 of 46
IS ANY PART OF YOUR CLAIM BASED ON IMPROVEMENTS AND/OR FILL
CONSTRUCTED OR PLACED AFTER JANUARY 3, 1959?
YES
NO IF ANSWER IS "YES," DESCRIBE AREA IMPROVED AFTER
JANUARY 3, 1959 (USE ATTACHMENT IF MORE SPACE IS NEEDED), AND STATE
NATURE OF IMPROVEMENTS.
HAVE ANY OF THESE IMPROVEMENTS BEEN EXTENDED OR IMPROVED AFTER (1)
SEPTEMBER 7, 1957 (2) JANUARY 3, 1959? DESCRIBE.
WAS THIS BENEFICIAL USE CONTINUED THROUGH JANUARY 3, 1959? DESCRIBE.
THE PLAT IS BASED ON APPARENT USE AND IMPROVEMENTS EXISTING ON
JANUARY 3, 1959, RECOGNIZED BY THE ALASKA LAND ACT; STATE ANY REASON
KNOWN TO YOU WHY YOUR CLAIM DOES NOT CORRESPOND WITH THE PLAT.
(USE ATTACI-IMENT IF MORE SPACE IS REQUIltED.)
i OFFER CASH ,MONEY ORDER ,CASHIER'S CHECK
IN THE AMOUNT OF $ AS DEPOSIT FOR THE FOLLOWING
COSTS:
USE BY CLERK
FILING FEE $ $
SURVEY COSTS (AT RATE OF _SQ.FT.) $ $
APPRAISAL COSTS (CLASS II APPLICATIONS)$ $
TRANSFER COSTS ($ ) $ $
HEARING COSTS (IF CLAIM ADVERSE TO
PRIOR APPLICATION A DEPOSIT OF
$ FOR HEARING AND
SERVICE NOTICE IS REQUIRED)..
TOTAL DEPOSIT (DOES NOT INCLUDE
PURCHASE PRICE OF LAND IN
CLASS II APPLICATIONS)
DEPOSITION RECEIVED BY CITY BY:
DATE OF APPLICATION:
DATE APPLICATION RECEIVED BY CITY:
TLVIE FILED:
CERTIFICATION
I, ,THE ABOVE-NAMED APPLICATION, OR ITS AGENT, HEREBY
CERTIFIES THAT ALL OF THE STATEMENTS MADE IN THE APPLICATION AND
INCORPORATED ATTACHMENTS, IF ANY, ARE TRUE AND CORRECT
PRINT NAME(S)
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:~Documenfs and Settings\cfreas\Local Settings\Temporary lntemet PilesVOLKBVChapter 1ll.doc
Page 23 of A6
SIGNATURE(S)
~)
ASSESSOR'S APPRAISAL
THE UNDERSIGNED APPRAISER(S) DO HEREBY CERTIFY THAT HE HAS DULY
APPRAISED THE TIED AND/OR SUBMERGED LAND DESCRIBED IN THE ATTACHED
APPLICATION NO. OF ,WITHOUT INCLUDING IN THE
HEREINAFTER STATED VALUE ANY VALUE FOR VALUABLE IMPROVEMENTS
CONSTRUCTED OR PLACED HEREON PRIOR TO 7ANUARY 3, 1959, AT THE FAIR
MARKET VALUE.
TIDELAND SQ.FT. Afi $ PER SQ. FT., $
DATED, AT KENAI, ALASKA THIS DAY OF , 19
SIGNED:
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Documents and Settings\cfreas\Local Settings\Temporary fittemet Files\OLKB\Chap[er Lll.doc
Page 24 of 46
(c>
WAIVER OF CLASS II PREFERENCE RIGHTS
(ATTACH TO EACH CLASS I APPLICATION)
I, ,THE APPLICANT, OR HIS AUTHORIZED AGENT, I THE APPLICATION
FOR TIDELAND PREFERENCE RIGHTS, APPLICATION NO. , TO WHICH
THIS WAIVER IS ATTACHED, DO HEREBY WAIVE ANY AND ALL PREFERENCE
RIGHTS, TO ACQUIRE TIDE OR SUBMERGED AND LYING SEAWARD OF THE CITY
OF KENAI, TO WHICH I AM NOW OR MAY HEREAFTER BECOME ENTITLED BY
REASON OF THE PROVISIONS OF PUBLIC LAW 85-303.
DATED, AT KENAI, ALASKA THIS DAY OF ; 19 _, BY AND
BETWEEN THE CITY OF KENAI, ALASKA, GRANTOR, AND ,GRANTEE(S).
WITNESSETH:
THAT THE SAID GRANTOR, FOR AND IN CONSIDERATION OF THE SUM OF
ONB AND NO 100lTHIS ($1.00) DOLLARS AND OTHER GOOD AND VALUABLE
CONSIDBRATION, TO IT IN HAND PAID BY THE SAID GRANTEE(S), PURSUANT TO
THE PROVISIONS OF THE ALASKA LAND ACT (CHAPTER 169, SLA 1959) AND
ORDINANCE NO. 455-78, ENACTED ON JANUARY 3, 1979, PURSUANT THERETO,
DOES HEREBY CONVEYS, QUIT CLAIMS, AND CONFIRMS UNTO SAID GRANTEE(S)
AS TENANTS BY THE ENTIRETY, WITH THE RIGHT OF SURVIVORSHIl' (STRIKE IF
GRANTEES ARE NOT HUSBAND AND WIFE), AND TO THIS (THEIR HEIRS AND
ASSIGNEES (STRIKE IF GRANTEE A CORPORATION) AND TO ITS SUCCESSORS AND
ASSIGNS (STRIKE IF GRANTEE NOT A CORPORATION), ALL SUCH INTEREST AS
THE GRANTOR HAS, IF ANY, IN THE FOLLOWING DESCRIBED LOT, PIECE, PARCEL
AND TRACT OF TIDELAND AND CONTIGUOUS SUBMERGED LAND SITUATION
WITHIN THE CORPORATE LIMITS OF THE CITY OF KENAI, ALASKA, AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT:
ALL OF LOT ,BLOCK ,ACCORDING TO OFFICIAL TIDELANDS
SUBDTVISION PLAT OF THE CITY OF KENAI, ALASKA.
TOGETHER WITH ALL AND SINGULAR THE TENEMENTS, HEREDITAMENTS
AND APPURTENANCES THEREUNTO BELONGING OR IN ANYWISE APPERTAINING.
TO HAVE AND TO HOLD THE SAME UNTO THE SAID GRANTEE (S), HIS OR
THEIR HEIRS AND ASSIGNS, (OR) TO ITS SUCCESSORS ANTD ASSIGNS, FOREVER.
IN WITNESS WHEREOF, THE GRANTOR HAS CAUSED THIS DEED TO BE
EXECUTED THE DAY AND YEAR HEREIZ~TABOVE FIRST WRITTEN.
CORPORATE SEAL
CITY OF KENAI, ALASKA
BY: (IT'S MANAGER)
Ordinance No. 2238-2007 Attachment "A° 5/31/2007 8:39 AM
C:\Documents and Settings\cfreas\Loca( Settings\Temporary Internet Filcs\OLKB\Chapter I l l.doc
Page 25 of 46
CLERK
Chapter 11.20 LEASING OF TIDELANDS
11..20.01.0 Policy.
11.20.020 Lands available for leasing.
11..20.030 Qualifications of applicants.
11.20.040 Classification prior to lease required.
11.20.050 Applications.
11.20.060 Rights prior to leasing.
11.20.070 Procedure.
ll.20.080 Public notice-Public hearing.
11.20.090 Selection of applicant.
11.20.100 Appeal.
1.1.20.110 Appraisal and survey of leased lands.
11.20.120 The lease document-Terms.
11.20.130 Appraisal.
1L20.140 Review.
11.20.150 Annual minimum rental.
11.20.160 Principles and policy of lease rates.
11.20.170 Responsibility to properly locate.
1.1.20.180 Lease utilization.
11.20.190 Subleasing.
iL20.200 Assignments.
11.20.210 Modification.
11..20.220 Cancellation-Forfeiture.
11.20.230 Default-Right of entry.
11.20.240 Notice or demand.
11.20.250 Financing-Rights of mortgages or lienholder.
11.20.260 Entry and re-entry.
12.20.270 Re-lease.
11..20.280 Forfeiture of rental.
11.20.290 Right of inspection.
11.20.300 Easement grants reserved.
11.20.310 Lease subordinate to financing requirements.
11.20.320 Written waiver.
11.20.330 Surrender on termination.
11.20.340 Sanitation.
11.20.350 Building and zoning codes.
11.20.360 Rules.
1.1.20.370 Aircraft operations protected.
11.20.380 Right to enjoyment and peaceable possession.
11.20.390 Lessee to pay taxes.
11.20.400 No partnership or joint venture created.
Ordinance No. 2238-2007 Attachment "A" 5!31/2007 8:39 AM
C:\Documents and Settings\efreas\Local Settings\Temporary Internet Files\OLKB\Chapter ] l l.doc
Page 26 of 46
11.20.410 Default bankruptcy.
11.20.420 Nondiscrimination.
11.20.430 Partial invalidity.
11.20.440 Parole modifications.
11.20.450 Amendment of lease.
11.20.460 Compliance with laws.
11.20.470 Care of premises.
11.20.480 Lessee's obligation to remove liens.
11.20.490 Condemnation.
11.20.500 Protection of subtenants.
11.20.510 Successors in interest.
11.20.520 Governing law.
11.20.530 Notices.
1.1.20.540 Fire protection.
1 L20.550 Inspection.
11.20.560 Personal use of materials.
11.20.570 Restrictions and reservations.
11.20.580 Waste and injury to land.
11.20.590 Warranty.
11.20.600 Approval of other authorities.
11..20.610 Title restrictions.
1L20.620 Insurance-Hold. harmless.
11.20.630 Insurance of users-Subtenants.
1.1.20.640 Annual report.
11.20.650 Tidelands claims.
11.20.660 Subjection to harbor ordinance.
11.20.670 Arbitration.
11.20.680 Provisions regulating public use purpose.
11.20.690 Provision to be included in public use lease.
11.20.700 Public use: defined.
11.20.710 Controlled access.
11.20.720 Use charges.
11.20.730 Maintenance of dock.
11.20.740 Modifications of existing leases.
11.20.750 Unauthorized removal of material prohibited.
11.20.760 Removal not authorized by lease.
11.20.770 Disposition of rights by Council.
11.20.780 Penalties.
11.20.790 Tideland leases for shore fisheries.
11.20.010 Policy.
The City, in order to make sites available for beneficial industries, may lease City-owned
tidelands to persons who agree to operate a beneficial industry upon the teems and conditions the
Council considers advantageous to the City.
Ordinance No.2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Docnments and Se[tings\efreas\Local Settings\Temporazy Internet Piles\OLKB\Chapter 111.doc
Page 27 of 46
11.20.020 Lands available for leasing.
All classified tide and contiguous submerged land within the limits of the City to which
the City holds title may be leased as hereinafter provided, for surface use only[, AND UNDER
THE CONDITION THAT SAID LEASE IS SUBJECT AND INFERIOR TO PREFERENCE
RIGHT CLAIMS THAT MAY BE MADE WITHIN A TWO (2) YEAR FILING PERIOD FOR
PREFERENCE RIGHTS] and subject to the rights of existing set net site holders within the City
limits.
ll.20.030 Qualifications of applicants.
An applicant fora ]ease is qualified if the applicant:
(a) Is an individual at least nineteen (19) years of age or over; or,
(b) Is a group, association, or corporation which is authorized to conduct business under the
laws of Alaska.
11.20.040 Classification prior to lease required.
Before accepting applications to lease tidelands, the area involved shall have first been
classified for leasing by the City Council with the approval of the Planning and Zonin
Commission [HARBOR COMMISSIONS], and their availability advertised in a newspaper of
general circulation in the area once each week for two (2) successive weeks not less Than thirty
(30) days prior Co the Yime set for the closing of the acceptance of applications, and that all
applications are available for public inspection at the City Hall offices.
11..20.050 Applications.
(a) All applications for lease of tidelands shall be filed with the [CLERK] City Manager on
forms [PROVIDED BY HER AND] available at City Hall which shall upon execution of the
lease become part of the lease document. Only forms completed in full and accompanied by a
[ONE] five hundred dollar[($100)] $( 500) filing fee will be accepted for filing. Filing fees are
not refundable.
(b) With every application, the applicant shall submit a development plan showing and
stating:
(I) The purpose of the proposed lease;
(2) The use, value, and nature of improvements to be constructed;
(3) The type of construction;
(4) Dates construction is estimated to commence and be completed;
(5) Whether intended use complies with the zoning ordinance and comprehensive
plan of the City;
(6) Describe by reference to the plat the area to be leased;
(7) A detailed financial plan showing ability to carry through with the development
plan;
(8) A per~onnance bond of five percent (5%) of the project's estimated cost (which
bond shall not exceed fifty thousand dollars ($50,000), payable to the City.
Ordinance No. 2238-2007 AttachmenC "A" 5/31/2007 9:52 AM
ti:\Data\Documents\fITMLdocuments\Ordinance No. 2238-2007 Attachment A.doc
Page 28 of 46
11.20.OG0 Rights prior to leasing.
Neither the filing of an application for a lease nor the holding of a public hearing thereon
as provided below, shall give the applicant a right to a lease or to the use of the land applied for.
Any use not authorized by a lease shall constitute a trespass against the City.
11.20.070 Procedure.
(a) Planning and Zoning Commission: All lease applications shall be reviewed first by the
City of Kenai Planning and Zoning Commission to determine whether the contemplated use falls
within that permitted under the zoning ordinance.
[(B) HARBOR COMMISSION: ALL LEASE APPLICATIONS SHALL BE REVIEWED
BY THE HARBOR COMMISSION. IF THE COMMISSION AFTER CONSIDERING THE
LEASE APPLICATIONS DETERMINES AT A PUBLIC HEARING AS SET FORTH IN THE
SECTION BELOW THAT ANY ONE LEASE WILL BE IN THE BEST INTERESTS OF THE
CITY OF KENAI, THE CONLMISSION MAY MAKE A RECOMMEIvIDATION TO THE
CITY COUNCIL OF APPLICANT ALONG WITH ANY MODIFICATIONS OR
CONDITIONS RECOMMENDED BY THE COMMISSION.]
[(C)]~b City Council: The City Council shall make the final determination of the selection of
the applicant based upon the Commission's recommendation and approve or reject the choice of
application made.
11.20.080 Public notice-Public hearing.
Notice of the lease application shall be published in a newspaper of general circulation
within the City not less than ten (10) or more than thirty (30) days prior to the date of public
hearing. The notice must contain the name of the applicant, a brief description of the land,
proposed use, term, and a declaration that the Planningand Zoning Commission will consider the
lease to the applicant on the basis of the applicant's agreement to operate a beneficial industry
upon the terms and conditions as set forth in its application which is available for public
inspection at the City Ha11 offices. The notice shall state the date upon which public hearing will
be held before the Commission for consideration of the application.
11.20.090 Selection of applicant.
After the hearing provided in KMC 11.20.080 above, the Planning and Zoning
Commission may make its recommendation of the applicant to the City Council if in the
Planning_and Zoning Commission's opinion, on the basis of all the testimony presented, the
award of Che prospective lease will be advantageous to the CiCy and in the best interests of the
public welfare, health, and safety. In the alternative, the Planning and Zoning Commission may
elect to make no recommendation for any applicant giving its reasons therefor. The Planning and
Zonin Commission may [IMPOSE] recommend additional conditions upon the applicant before
malting its award. The decision of the Council shall be posted on the City Bulletin Board the day
after the hearing and remain posted for ten (10) days.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Documents and Settings\cfreas\Local Settings\Temporary Internet Files\OLKB\Chapter l I l.doc
Page 29 of b6
11.20100 Appeal
Any person disagreeing with the decision of the Council. may appeal the decision by
filing suit in the Superior Court, Third Judicial District at Kenai, within ten (10) days from the
date of the posting of Council's decision.
11.20.110 Appraisal and survey of leased lands.
[THE] Each applicant will furnish a survey and appraisal of the land in question prior to
]easing. Any resurveying or re-platting required will be the applicant's responsibility and
expense.
11.20.120 The lease document-Terms.
Leases may be issued for a term of not less than two (2) years nor more than ninety-nine
(99) years. The applicant shall state in his application the term desired. In determining whether to
grant a lease for the requested term, the Council shall consider the nature, extent, and cost of the
improvements which the applicant agrees Co construct thereon as a condition of the lease the time
required to amortize the proposed investment, the value of the applicant's proposed use to the
economy of the City and other relevant factors. The term of the lease may be extended for a
number of successive periods for a set number of years each as long as the appropriate
extensions and original. term do not exceed 99 years.
11.20.130 Appraisal.
No land shall be leased, or a renewal lease issued, unless the same has been appraised
within a six month period prior to the date fixed for beginning of the term of the lease or renewal
lease. No land shall be leased for less than the approved, appraised annual rental, according to
the method as described in Section 11.20.150 below, except to State or Federal agencies or their
subdivisions if it is in the public interest to do so. Appraisals shall reflect the number and value
of City services rendered the land in question.
1.1.20.140 Review.
No leased land may be changed in use, nor may any renewal lease be issued until the
proposed use or renewal has been reviewed by the Planning and Zoning Commission and
approved by the Council.
11.20.150 Annual minimum rental.
(a) Annual minimum rentals shall be computed from the approved appraised market value
utilizing the method as described in KMC 11.20.160(a). Annual minimum rental shall include:
(1) Taxes pertaining to the leasehold interest of the Lessee.
(2) Sales tax now enforced or levied in the future computed upon rent payable in
monthly installments whether rent is paid on a monthly or yearly basis.
(3) All taxes and assessments levied in the future by the City of Kenai, as if lessee
was considered the legal owner of record of the leased property.
Ordinance No. 2238-2007 Attachment "A° 5/31/2007 839 AM
C:\Documents and Set'tings\cfreas\Local Settings\Temporary Internee Files\OLKB\Chapter l l l.doe
Page 30 of 46
(4) Interest at the rate of eight percent (8%) per annum and ten percent (10%)
penalties of any amount of money owed under this lease which is not paid on or before the date it
becomes due.
(5) All sales taxes due on payments under this lease and to all sales taxes applicable
to its operations.
(6) All special assessments for public improvements levied by the City of Kenai, as if
lessee were considered legal owner of leased property.
(b) Upon execution of the lease the lands demised become taxable to the extent of its
leasehold interest and lessee shall pay all real property taxes levied upon such leasehold interest
in these lands, that the City as part of the consideration of rental payments depends and relies
upon the payment by the lessee of said assessments and taxes as if he were the owner of said
demised land.
(c) Rent shall be paid annually in advance. Said payments shall be prorated to conform with
the City of Kenai's fiscal year beginning July 1 and ending June 30. If the equivalent monthly
payment exceeds $200, then the lessee shall have the option of making payments on a monthly
or quarterly basis.
11.20.160 Principles and policy of lease rates.
(a) To insure a fair return, a111eases for a period in excess of five (5) years shall include a
redetermination clause as of the fifth anniversary of each lease, normally set for the first of July
of that fifth year. In pursuing a fair return, all lands for lease shall be appraised prior Co lease and
again prior to redetermination. Therefore, lease rates shall be based on:
(1) Fair market value of the land, including an appropriate consideration of facilities
and services available (public water, public sewer, storm sewers, and other public utilities) as
determined by a qualified independent appraiser, considering the best use of the specific land,
(2) The actual rate of return determined to be a fair retum to the City shall be set at
[SIX PERCENT (6%)] eight percent (8%) of fair market value. The appraisal shall not include
structural improvements made to the land or improvements made by way of gravel or other
approved fill placed on the land.
(b) Realizing that investors, developers, and other potential lessees need a reasonable
assurance of stability in future lease rates, the redetermination clause of all future leases shall
include the following language:
At each five-yeaz interval, the fair market value shall be determined by qualified, independent
appraisers. The redetermined lease rate (annual rent) under this provision, shall be [LIMITED
TO A FIFTY PERCENT (50%) INCREASE IN THE PRIOR LEASE RATE UNTIL THE
THIRTIETH-YEAR ANNIVERSARY OF THE LEASE AFTER WHICH THE FIFTY
PERCENT (50%) CAP PROVISION SHALL NO LONGER APPLY AND THE LEASE RATE
SHALL BE REDETERMINED EVERY FIVE YEARS] on the basis of fair market evaluation as
determined in KMC 11.20.080.
(c) City leases of tidelands existing at the time of the enactment of this chapter shall have a
thirty-year period determined from the date from which the lease was originally entered into.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 839 AM
C:\Documents and Se¢ings\ePreas\Loca3 Settings\Temporary Internet Piles\OLKB\Chapter 11 /.doe
Page 31 of 46
(d) Failure by Che City to insist upon renegotiation at the end of any given five-year period
shall not constitute a waiver of the right of the City to insist upon renegotiation in any
subsequent year, provided that neither the City nor the lessee shall have the right to insist upon
renegotiation until five years shall have elapsed from the date the rental was last adjusted.
11.20.170 Responsibility to properly locate.
It shall be the responsibility of the lessee to properly locate himself and his improvements
on the leased land. It shall be unlawful to encroach on other lands of the City, or on lands owned
or leased by another.
11.20.180 Lease utilization.
Leased lands shall be utilized for purposes within the scope of the application, the terms
of the lease and in conformity with the ordinances of the City and Borough, and in substantial
conformity with the comprehensive plan. Utilization or development for other than the allowed
uses shall constitute a violation of the lease and subjecC the lease to cancellation at any time.
Failure to substantially complete the development plan of the land within the specified time from
the date of execution of the lease, consistent with the proposed use and terms of the lease, shall
constitute grounds for cancellation. The lease shall set forth in detail with appropriate plans and
specifications the improvements to be made within the time period described above.
1.1.20.190. Subleasing.
Leases may provide for subleasing a portion of the leased land without prior Council
approval. Subleases shall be in writing and be subject to the terms and conditions of the original
lease. No approval of the City shall be given to the sublease of property until the lessee has
substantially complied with the development plan.
11.20.200 Assignments.
Except for assignments for collateral purposes, no lessee may assign the lands leased to
him without prior Council approval. The assignee shall be subject to all of the provisions of the
lease. Any attempted assignment made in violation of this section shall be void. Any assignment
requiring Council approval will not be unreasonably denied.
11.20.210 Modification.
No lease maybe modified orally or in any manner other than by an agreement in writing,
signed by all parties in interest or their successors in interest. Any such modification shall require
Council approval.
11.20.220 Cancellation-Forfeiture.
(a) Leases in good standing may be canceled in whole, or in part, at any time upon mutual
written agreement by lessee and the City Council.
(b) Any lease used for an unlawful purpose may be canceled.
Ordinance ~o. 2238-2007 AttacLiment "A° 5/31Y2007 839 AM
C:~Doeumenfs and Settings\cfreas\Local Settings\Temporary Internet FilesVOLKBVChapter lll.doc
Page 32 oP 46
(c) If the lessee shall default in the performance or observance of any of the lease terms,
covenants, or stipulations thereto, or of the regulations now or hereafter in force, and should said
default continue for thirty (30) calendar days after service of written notice by the City without
remedy by lessee of the conditions warranting default, the City shall subject lessee to appropriate
legal action, including, but not limited to, forfeiture of Che lease. No improvements may be
removed by lessee or other person during any dme the lessee is in default. This provision shall
not be construed Yo prohibit the City from taking any appropriate legal action, including, but
limited to, forfeiture of the lease, immediately upon the occurrence of a default.
11.20.230 Default-Right of entry.
Should default be made in the payment of any portion of the rent or fees when due or in
any of the covenants or conditions contained in the lease or in any regulations now or hereinafter
in force, then in such event the City shall give lessee thirty days after such written notice to cure
such default or defaults, after which if the default is not cured, the City may terminate the lease,
re-enter and take possession of the premises, remove all persons therefrom.
11.20.240 Notice or demand.
Any notice or demand which under the terms of a lease or under any statute must be
given or made by the parties Yhereto, shall be in writing and be given or made by registered or
certified mail, addressed to the other party at the address of record. However, either party may
designate in writing such new or other address to which such notice or demand shall thereafter be
so given, made or mailed. A notice given hereunder shall be deemed delivered when deposited in
a U.S. general or branch post office, enclosed in a registered or certified mail envelope,
addressed as hereinabove provided.
11.20.250 Financing-Rights of mortgages or lienholder.
(a) For the purpose of interim or permanent financing or refinancing from time to time of the
improvements to be placed upon the teased premises, and for no other purpose, a lessee, after
giving written notice thereof Co the City, may encumber by mortgage, deed of trust, assignment,
or other appropriate instrument, the lessee's interest in the leased premises and in and to the
lease, provided such encumbrance pertains only to such leasehold interest and does not pertain to
or create any interest in the City's title to the leased premises. Tf such mortgage, deed of trust, or
assignment, shall be held by a bank or other established lending or financial institution (which
terms shall include an established insurance company and qualified pension orprofit-sharing
trust), and such institution shall acquire the lessee's interest in such lease as a result of a sale
under said encumbrance pursuant to a foreclosure or other remedy of the secured party, or
through any transfer in lieu of foreclosure, or through settlement of or arising out of any pending
or contemplated foreclosure action, such lending institution shall have the privilege of
transferring its interest in such lease to a nominee or a wholly-owned subsidiary corporation with
the prior consent of the City, provided, however, such transferee shall assume all of the
covenants and conditions required to be performed by the lessee, whereupon such lending
institution shall be relieved of any further liability under such lease from and after such transfer.
Such lending institute for the nominee or wholly-owned subsidiary corporation to which it may
have transferred such lease, or any other lending institution which may at any time acquire such
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Documents and Settings\cfreas\Loeat.Setcings\Temporary Internet Files\OLKB\Chapter ll l.doc
Page 33 of 46
lease, shall be relieved of any further liability under such lease from and after a transfer of such
lease.
(b) A leasehold mortgagee, beneficiary of a deed of trust, or security assignee, shall have and
be subrogated to any and all rights of the lessee with respect to Che curing of any default
hereunder by lessee.
(c) If the holder of any such mortgage, beneficiary of any such deed of trust, or the security
assignee shall give the City before any default shall have occurred in the lease, a written notice
containing the name and post office address of such holder, the City shall thereafter give to such
holder a copy of each notice of default by the lessee at the same time as any notice of default
shall be given by the City to the lessee, and Che City will not thereafter accept any surrender or
enter into any modification of this lease without the prior written consent of the holder of any
first mortgage, beneficial interest under a first deed of trust, or security assignee, in this lease.
(d) If, by reason of any default of the lessee, either this lease or any extension thereof shall
be terminated at the election of the City prior to the stated expiration therefor, the City will enter
into a new lease with the leasehold mortgagee for the remainder of the term, effective as of the
date of such ternnation, at the rent and additional rent, and on the terms herein contained,
subject to the following conditions:
(1) Such mortgagee, beneficiary, or security assignee, shall make written request to
the City for such new lease within twenty days after the date of such termination and such
written request shall be accompanied by a payment to the City of all sums then due to the City
under the lease.
(2) Such mortgagee, beneficiary, or security assignee, shall pay to the City, at the
time of the execution and delivery of such new lease, any and all sums due thereunder in addirion
to those which would at the time of the execution and delivery thereof be due under this lease;
but for such termination and in addition thereto, any reasonable expenses, including legal and
attorney's fees, to which the City shall have been subjected by reason of such default.
(3) Such mortgagee, beneficiary, or security assignee shall, on or before the execution
and delivery of such new tease, perform all the other conditions required to be performed by the
lessee to the extent that the lessee shall have failed to perform such conditions.
(e) If a lending institution or its nominee or wholly-owned subsidiary corporation shall hold
a mortgage, deed of trust, or similar security interest in and to this lease and shall thereafter
acquire a leasehold estate, derived either from such instruments or from the City, and if such
institution; nominee, or corporation shall desire to assign this lease or any new lease obtained
from the City (other than to a nominee or to a wholly-owned subsidiary corporation as permitted
by the above provisions) to an assignee who will undertake to perform and observe the
conditions in such lease required to be performed by the lessee, the City shall not unreasonably
withhold its consent to such assignment and assumption, and any such lending institution,
nominee, or subsidiary shall be relieved of any further liability under such lease from and after
such assignment. If the proposed assignor shall assert that the City in unreasonably withholding
its consent to any such proposed assignment, such dispute shall be resolved by arbitration.
Ordinance No. 2238-2007 Attachment "A" 5/31!2007 8:39 AM
C:~Documents and Settings\efreas\Local Settings\Tempocary Internet FileslOLKBVChapter I ll .doc
Page 34 of 46
11..20.260 Entry and re-entry.
In the event that the lease should be terminated as hereinbefore provided by summary
proceedings or otherwise, or in the event that the demised lands or any parr thereof should be
abandoned by the Iessee during the said term, the lessor or its agents, servants, or representatives
may, immediately or any time thereafter, re-enter and resume possession of said lands or such
parC thereof, and remove all persons and property therefrom, either summary proceedings or by a
suitable action or proceeding at law without being liable for any damages therefor. No re-entry
by the lessor shall be deemed an acceptance of a surrender of the lease.
11.20.270 Re-lease.
In the event that a lease should be terminated as herein prodrded, or by summary
proceedings, or otherwise, the City Commission may offer said lands for lease or other
appropriate disposal, pursuant to the provisions of this ordinance.
11.20.280 Forfeiture of rental.
In the event that the lease should be terminated because of any breach by the lessee as
herein provided, the annual rental payment last made by the lessee shall be forfeited and retained
by the lessor as partial or total liquidated damages for said breach.
11.20.290 Right of inspection.
City shall have the right at all reasonable times to enter the premises, or any part thereof,
for the purposes of inspection.
11.20.300 Easement grants reserved.
City reserves the right to grant and control easements in, or above the land leased. No
such grant or easement will be made that will unreasonably interfere with the lessee's use of the
land, and lessee shall have free access and use of any and all parking and loading rights, rights of
ingress and egress now or hereafter appertaining to the leased premises.
11.20.31.0 Lease subordinate to financing requirements.
Lessee agrees that City may modify the lease to meet revised requirements for Federal or
State grants, or to conform to the requirements of any revenue bond covenant. However, the
modification shall not act to reduce the rights or privileges granted the lessee by this lease, nor
act to cause the lessee financial loss.
11.20.320 Written waiver.
The receipt of rent by the lessor with knowledge of any breach of the lease by the lessee,
or any default on the part of the lessee in observance or performance of any of the conditions or
covenants of the lease, shall not be deemed to be a waiver of any provisions of the lease. No
failure on the part of the lessor to enforce any covenant or provision therein contained, nor any
waiver of any right thereunder by the lessor, unless in writing, shall discharge or invalidate such
covenants or provisions, or affect the right of the lessor to enforce the same in the event of any
Ordinance No. 2238-2007 Attachment "A" 5!3112007 8:39 AM
C:\Documents and Settings\cfreas\Locat Settings\Temporary Internet Piles\OLKB\Chapter l l l.doc
Page 35 of 46
subsequent breach or default. The receipt, by the lessor, of any rent or any other sum of money
after the termination, in any manner, of the term therein demised, or after the giving by the lessor
of any notice thereunder to effect such termination, shall not reinstate, continue, or extend the
resultant term Therein demised, destroy, or in any manner impair the efficacy of any such notice
or termination as may have been given thereunder by the lessor to the lessee prior to the receipt
of any such sum of money or other consideration, unless so agreed to in writing and signed by
the lessor.
11.20.330 Surrender on termination.
(a) Lessee shall, on the last day of the term of this lease or upon any earlier termination of
this lease, surrender and deliver up the premises into the possession and use of City without
fraud or delay in good order, condition, and repair, except for reasonable wear and tear since the
last necessary repair, replacement, restoration, or renewal, free and clear of all lettings and
occupancies unless expressly permitted by City in writing, and free and clear of all liens and
encumbrances other than those created by City for loans to the City.
(b) Upon Che end of Che teen of this lease or any earlier termination thereof, title to the
buildings, improvements, and building equipment shall automatically vest in the City without
requirement of any deed, conveyance, or bill of sale document in confirmation hereof, lessee
shall execute, acknowledge, and deliver the same and shall pay any charge, tax, and fee asserted
or imposed by any and all governmental units in connection therewith.
11.20.340 Sanitation.
The lessee shall comply with all regulations or ordinances of the City which are
promulgated for the promotion of sanitation. The premises of the lease shall be kept in a neat,
clean, and sanitary condition, and every effort shall be made to prevent the pollution of water.
11.20.350 Building and zoning codes.
Leased lands shall be utilized in accordance with the building and zoning ordinances and
rules and regulations of said authority. Failure to do so shall constitute a violation of the lease.
11.20.360 Rules.
(a) The lessee shall observe, obey, and comply with all applicable rules, etc., of the State or
Federal governments.
(b) City reserves the right to adopt, amend, and enforce reasonable rules and regulations
governing the demised premises and the public areas and facilities used in connection therewith.
Except in cases of emergency, no rule or regulation hereafter adopted or amended by the City
shall become applicable unless it has been given thirty days notice of adoption or amendment
thereof.
(c) Lessee, in the conduct of its operations on the demised premises, shall obselve, obey, and
comply with any and all applicable rules, regulations, laws, ordinances, or orders of any
governmental authority, federal or state, lawfully exercising authority over lessee or lessee's
conduct of its business.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:~Doeutnents and Settings\cfreas\Locat Settings\Temporary Internet FilesVOLKBVChapter Iil.doc
Page 36 of 46
(d) City shall not be liable to lessee for any diminution or deprivation of possession, or of its
rights hereunder, on account of the exercise of any such right or authority as in this section
provided, nor shall lessee be entitled to terminate the whole or any portion of the leasehold estate
herein created, by reason of the exercise of such rights or authority, unless the exercise thereof
shall so interfere with lessee's use and occupancy of the leasehold estate as to constitute a
termination in whole or in part of this lease by operation of law in accordance with the laws of
the State of Alaska and of the United States made applicable to the states.
11.20.370 Aircraft operations protected.
(a) The City shall reserve to itself its successors and assigns, for the use and benefit of the
public, a right of flight for the passage of aircraft in the airspace above the surface and all
improvements approved by the City of the premises conveyed, together with the right Yo cause in
said airspace such noise as may be inherent in the operation of aircraft, now or hereafter used for
navigation of or flight in the air, using said airspace of landing at, taking off from, or operating
on the Kenai Airport. (When plans for improvements are approved by the City, the City to the
extent of those improvements releases the easements here expressed.)
(b) The lessee by accepting conveyance expressly agrees for itself, its representatives,
successors, and assigns, that it will not erect nor permit the erection of any structure or object, on
the and conveyed, which would be an airport obstruction within the standards established under
the Federal Aviation Administration Regulations, Part 77, as amended. In the event the aforesaid
covenant is breached, the City reserves the right to enter on the land conveyed hereunder and to
remove the offending structure or object, all of which shall be at the expense of the lessee or its
heirs, successors, or assigns.
11.20.380 Right to enjoyment and peaceable possession.
The City shall agree and covenant that the lessee, upon paying rent and performing other
covenants, terms, and conditions of this lease, shall have the right to quietly and peacefully hold,
use, occupy, and enjoy the said leased premises, except that any inconvenience caused by public
works projects in or about the leasehold premises shall not be construed as a denial of the right of
quiet or peaceable possession.
11.20.340 Lessee to pay taxes.
Lessee shall pay all lawful taxes and assessments which, during the term thereof may
become a lien upon or which maybe levied by the State, Borough, City, or any other tax-levying
body, upon any taxable possessory right which lessee may have in or to the reason of its use or
occupancy, provided, however, that nothing herein contained shall prevent lessee from
contesting as any other land owner any increase in such Cax or assessment through procedures
outlined in State statutes.
11.20.400 No partnership or joint venture created.
The City shall not be construed or held to be a partner or joint venturer of lessee in the
conduct of business on the demised premises; and it is expressly understood and agreed that the
Ordinance No. 2238-2007 Attachment "A" 5!31/2007 8:39 AM
C:~Documents and Settings\cfreas\Loeal SettingslTemporary Internet PilesVOLKBVChapter I ll.doc
Page 37 of 46
relationship between the parties thereto is, and shall at all times remain that of landlord and
tenant.
11.20.410 Default bankruptcy.
If the lessee shall make any assignment for the benefit of creditors or shall be adjudged a
bankrupt, or if a receiver is appointed for the lessee or lessee's assets, or any interest under this
lease, and if the appointment of the receiver is not vacated within thirty days, or if a voluntary
petition is filed under Section 18(a} of the Bankruptcy Act by the lessee, then and in any event,
the City may, upon giving the lessee thirty days' notice, terminate this lease.
11.20.420 Nondiscrimination.
The lessee, for himself, his heirs, personal representatives, successors in interest, and
assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant
running with the land, that:
(a) No person on the grounds of race, color, or national origin shall be excluded from
participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of
said facilities.
(b) In the construction of any improvements on, over, or under such land and the furnishing
of services thereon, no person on the grounds of race, color, or national origin shall be excluded
from puticipation, denied the benefits of, or otherwise be subjected to discrimination.
(c) The lessee shall use the premises in compliance with all other requirements imposed by
or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A,
Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted Programs of the
Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as
said regulations may be amended.
(d) In the event facilities are constructed, maintained, or otherwise operated on the said
property described in this lease, for a purpose involving the provision of similar services or
benefits, the lessee shall maintain and operate such facilities and services in compliance with all
other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-
Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civi]
Rights Act of 1964, and as said Regulations may be amended.
11.20.430 Partial invalidity.
If any term, provision, condition, or part of the lease is declared by a court of competent
jurisdiction to be invalid or unconstitutional, the remaining terms, provisions, conditions, or parts
shall continue in full force and effect as though such declaration was not made.
11.20.440 Parole modifications.
It shall be mutually understood and agreed between the parties that the agreement, as
written, shall cover all the agreements and stipulations between the parties; and no
representations, oral or written, have been modifying, adding to, or changing the terms thereof.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:\Docnments and Settings\efi~eas\Locat Settings\Temporazy Internet Files\OLKB\Chapter 111.doc
Page 38 of 46
11.20.450 Amendment oi' lease.
Notwithstanding anything to the contrary, in order to aid the lessee in the financing of the
improvements to be situated herein, the City shall agree that in the event the proposed
mortgagee, beneficiary or security assignee under any interim or permanent loan on the security
of the leasehold interest of the lessee and the improvements to be situated thereon so requires,
the City will make a reasonable effort to amend this lease in order to satisfy such requirements
upon the express condition and understanding, however, that such variance in language will not
materially prejudice the City's rights thereunder nor be such as to alter in any way the rental
obligations of the lessee hereunder nor its obligations to comply with all existing laws and
regulations of the City relating to the leasing of airport lands, and to all applicable Federal
statutes, rules, and regulations, and all covenants and conditions of the deed by which the City
holds title to the land.
1L20.460 Compliance with laws.
(a) Lessee shall comply with all applicable laws, ordinances, and regulations ofpublic
authorities now or hereafter in any manner affecting the leased premises or the sidewalks, alleys,
streets, and way adjacent thereto or any buildings, structures, fixtures, and improvements or the
use thereof, whether or not any such laws, ordinances, and regulations which may be hereafter
enacted involve a change of policy on the part of the governmental body enacting the same.
Lessee agrees to hold City financially harmless from the following:
(1) From the consequences of any violation of such laws, ordinances, and/or
regulations.
(2) From all claims for damages on account of injuries, death, or property damage
resulting from such violation.
(b) Lessee further agrees it will not permit any unlawful occupation, business, or trade to be
conducted on said premises or any use to be made thereof contrary to any law, ordinance, or
regulation as aforesaid with respect thereto.
ll.20.470 Care of premises,
Lessee, at its own cost and expense, shall keep the leased premises, all improvements
which at any time during the term of this lease may be situated thereon, and any and all
appurtenances thereunto belonging, in good condition and repair, during the entre term of this
lease.
11.20.480 Lessee's obligation to remove liens.
Lessee will not permit any liens including, but not limited to, mechanics', laborers', or
material-men's liens obtainable or available under the then existing laws, to stand against the
leased premises or improvements for any labor or material furnished to lessee or claimed to have
been furnished to lessee or to lessee's agents, contractors, or sublessees, in connection with work
of any character performed or claimed to have been performed on said premises or
improvements by or at the direction or sufferance of lessee, provided, however, lessee shall have
the right to provide a bond as contemplated by Alaska law and contest the validity or amount of
Ordinance No. 2238-2007 ACtachment "A° 5!31/2007 8:39 AM
C:~Documen[s end Settings\efreas\Local Settings\Temporary Internet FilesVOLKBVChapter l l Ldoc
Page 39 of 46
any such lien or claimed lien. On final determination of such lien or such claim for lien, lessee
will immediately pay any judgment rendered with all proper costs and charges and shall have
such lien released or judgment satisfied at lessee's own expense.
11.20.490 Condemnation.
In the event the leased premises or any part thereof shall be condemned and taken for a
public or aquasi-public use, then upon payment of any award or compensation arising from such
condemnation, there shall be such division of the proceeds, such abatement in rent payable
during the term or any extension of the term hereof, and such other adjustments as the parties
may agree upon as being just and equitable under all the circumstances. If the City and lessee are
unable to agree within thirty days after such an award has been paid into court, upon what
division, annual abatement in rent, and other adjustments are just and equitable, the dispute shall
be determined by arbitration provided in KMC 11.20.670 hereof.
11.20.500 Protection of subtenants.
To protect the position of any subtenant(s) hereafter properly obtaining any interests in
the leasehold estate granted lessee hereunder, the City agrees that in the event of the cancellation,
termination, expiration, or surrender of this lease (the ground lease), the City will accept the
subtenant, its successors and assigns, as its lessee for a period equal to the full elapsed portion of
the term of the sublease, including any extensions or renewals thereof not exceeding the term of
this lease, upon the same covenants and conditions therein contained, to Che extent that said
covenants and conditions are not inconsistent with any of the terms and conditions of this lease,
provided such subtenant shall make fuIl and complete attornment to the City for the balance of
the term of such sublease so as to establish direct privity of estate and contract between the City
and the subtenant with the same force and effect as though such sublease was originally made
directly between the City and such subtenant; and further provided such subtenant agrees to
comply with all the provisions of the ground lease and all the terms of any mortgage, deed of
trust, or security assignment to which such leasehold estate is subject, except the payment of rent
under the ground lease and the payment of any debt service under any such mortgage, deed of
trust, or security assignment.
11.20.510 Successors in interest.
This lease shall be binding upon and shall inure to the benefit of the respective successors
and assigns of the parties hereto, subject to such specific limitations or assignment as are
provided for herein.
]1.20.520 Governing law.
The indenture of lease shall be governed in all respects by the laws of the State of Alaska.
11.20.530 Notices.
(a) Any notices required by the lease shall be in writing and shall be deemed to be duly given
only if delivered personally or mailed by certified or registered mail in a prepaid envelope
addressed as follows:
Ordinance No. 2238-2007 Attachment "A^ 5/31!2007 8:39 AM
C:\Documents and Settings\cfreas\l.ocal Seitiugs\Temporary Internet Files\OLKB\Chapter l i l.doc
Page 40 of 4b
To City: City Hall-City of Kenai
[P.O. BOX 580] 210 Fidalgo Avenue
Kenai, Alaska 99611
To Tenant:
(b) The City shall also mail a copy of any notice given to the lessee, by registered or certified
mail, to any leasehold lender (mortgagee, beneficiary of a deed of trust, security assignee) who
shall have given the City notice of such mortgage, deed of trust, or security assignment.
(c) Any such addresses may be changed by an appropriate notice in writing to all other
parties affected provided such change of address is given to the other parties by the means
outlined in paragraph (a) above at least fifteen days prior to the giving of the particular notice in
issue.
11.20.540 Fire protection.
The lessee will take all reasonable precaution to prevent and take all necessary action to
suppress destructive or uncontrolled grass, brush, or other fires on leased lands, and comply with
all laws, regulations, and rules promulgated and enforced by the City for fire protection within
the area wherein the leased premises are located.
11.20.550 Inspection.
The lessee shall allow authorized representatives of the City to enter the leased land for
inspection at any reasonable time.
11.20.560 Personal. use of materials.
All coal, oil, gas, and other minerals and all deposits of stone or gravel valuable for
extraction or utilization and all materials subject to Title R, Division I, Chapters 4, 5, and 6 of the
Alaska Administrative Code are excepted from the operation of a surface lease. Specifically, the
lessee of the surface rights shall not sell or remove for use elsewhere any timber, stone, gravel,
peat moss, topsoil, or any other material valuable for building or commercial purposes; provided,
however, that material required for the development of the leasehold may be used if its use is
first approved by the City.
11.20.5'70 Restrictions and reservations.
The lease shall contain such restrictions and reservations as are necessary to protect the
public interest.
Ordinance No. 2238-2007 Attachment "A" 5!31/2007 839 AM
C:\Documents and Settings\efreas\Local Settings\Temporary InterneC Files\OLKB\Chapfer l l !.doe
Page 41 of 46
11.20.580 Waste and injury to land.
If any person shall commit waste, trespass, or other injury upon City land, the person so
offending, in addition to being civilly liable for any damages caused, shall be deemed guilty of a
violation.
21.20.590 Warranty.
The City does not warrant by its classification or leasing of land that the land is ideally
suited for the use authorized under said classification or lease, and no guaranty is given or
implied that it shall be profitable to employ land to said use. City bears no responsibility for any
water erosion of land.
11.20.600 Approval of other authorities.
The issuance by the City of leases does not relieve the grantee or lessee of responsibility
of obtaining licenses or permits as may be required. by duly authorized Borough, State, or
Federal agencies.
11.20.610 Title restrictions.
All leases or sales of property shall be made subject to restrictions and reservations in the
patent, deed, or other instrument under which the City holds.
11.20.620 Insurance-Hold harmless.
Lessee shall covenant Co save the City harmless from all actions, suits, liabilities, or
damages resulting from or arising out of any acts of commission or omission by the lessee, his
agents, employees, customers, invitees, or arising from or out of the lessee's occupation, or use
of the premises demised, or privileges granted, and to pay all costs connected therewith. In this
connection, the lessee shall agree to arrange and pay for all the following:
(a) Public liability insurance protecting both Che City andlor its agents and the lessee, such
insurance to be evidenced by a certificate showing the insurance in force. The amount of such
public liability insurance as set forth in the lease [SHALL HAVE LIMTTS NOT LESS THAN
THOSE KNOWN AS $250,000/$500,000/$100,000].
(b) Liquor liability (where applicable).
(c) Lessee agrees to carry employer's liability insurance and Workmen's Compensation
Insurance, and to furnish a certificate thereof to the City, if applicable,
(d) Insurance contracts providing liability insurance and Workmen's Compensation shall
provide for not less than thirty days written notice to the City of cancellation or expiration or
substantial change in policy conditions and coverage.
(e) Lessee agrees that waiver of subrogation against the City shall be requested of lessee's
insurer, and shall be provided at no cost to the City.
(f) Cross Liability: It is understood and agreed that the insurance afforded by this policy or
policies for more than one named insured, shall not operate to increase the limits of the
company's liability, but otherwise shall not operate to limit or void the coverage of any one
Ordinance No. 2238-2007 Attachment "A^ 5!31/2007 8:39 AM
C:\Documents and Settings\cfreas\Local Settings\Temporary Inremet Files\OLKB\Chapter l l l.doc
Page 42 of 46
named insured as respects claims against the same named insured or employees of such other
named insured.
(g) The insurance procured by the lessee as herein required shall be issued in the name of the
lessee and the City by a company licensed to do business in the State of Alaska, and shall contain
endorsements that:
(1) Such insurance may not be canceled or amended with respect to the City without
thirty days written notice by registered or certified mail to the City by the insurance company.
(2) Lessee shall be solely responsible for payment of premiums and that City shall
not be required to pay any premiums for such. insurance.
(h) The amount of insurance coverage required above may be subject to review fox increase
at each five-year renegotiation of the lease.
(i) Upon review by the City [COMMISSION], the lessee may be required to obtain such
other insurance protecting the City and lessee that may be necessarily required or advisable
owing to the particularities of the harbor-related activities on the lease-hold interest.
11.20.630 Insurance of users-Subtenants.
Lessee, for its own protection, may require bona fide public users and subtenants to
execute agreements holding lessee harmless from actions arising out of user's operations and
may require such bona fide public users and subtenants to show proof of public liability
insurance covering their operations on the demised premises in such amounts as will adequately
protect them.
11.20.640 Annual report.
The lessee may be required to submit to the City each year on or about March 15, an
annual report on its operations, particularly those services and facilities offered to the public,
whether on a fee or non-fee basis.
11.20.650 Tidelands claims.
The City shall lease the subject land subject to any preference rights claims made
pursuant to the provisions of Alaska State 38.05.320 or Ordinance No. 455-78, dated September
5, 2979 of the City of Kenai, adopted pursuant thereto, and the lessee holds lessor harmless for
any damages, legal expenses, or compensation necessitated by the resolution or satisfaction of
said claims, if any.
1.1.20.660 Subjection to harbor ordinance.
All leases are subject to the terms, conditions, and regulations imposed by Title II,
Harbor and Harbor Pacilities, of the 1979 Kenai Code of ordinances as amended of which this
section is part.
11.20.670 Arbitration.
In the event the City and lessee shall be unable to agree as to any matter provided for in
the lease except as to the amount of the five-year rent redetermination amount which is handled
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:~Documents and Settings\efreaslLocai Settings\Tempoxary Sntemet FilesVOLKBVChapter l l l.doc
Page 43 of 46
pursuant to KMC 11.20.1.60, such dispute shall be determined by three disinterested arbitrators
(unless the parties can agree on one arbitrator). Such arbitration shall be conducted upon request
of either the City or the lessee, before three arbitrators (unless the City or the lessee agree to one
arbitrator) designated by the American Arbitration Association and in accordance with Che rules
of such Association. The arbitrators designated and acting under this lease shall have no power to
depart from or change any of the provisions thereof. The expense of arbitration proceedings
conducted hereunder shall. be borne equally by the parties. The proceedings shall take place in
Kenai, Alaska unless otherwise agreed upon by the parties.
1.1.20.680 Provisions regulating public use purpose.
The City Council realizes that only a limited area of tidelands bordering navigable waters
are available within the City of Kenai and which are owned by the City of Kenai. It would be in
the public interest to insure that these lands do not pass out of community control at least to the
extent that the public would not be deprived of harbor services at reasonable rates in the future.
Therefore, areas of City-owned tidelands which are developable for the bona fide public
purposes as enumerated below shall be leased only with the following covenants defined to
insure public use and access at reasonable rates.
11.20.690 Provision to be included in public use lease.
The following provision shall be included in leases where harbor facilities are constructed
to be utilized all or in part for bona fide public uses.
11.20.700 Public use: defined.
(a) Public use shall mean a use limited in part or in whole to the following:
(l) In general, the lessee may use the demised premises or part thereof for any of the
following purposes only:
(i) Public dock facilities.
(ii) Maritime commerce.
(iii) Transportation.
(iv) Fishing.
(v) Boat harbor.
(vi) Port and waterfront development purposes.
(b) Before lessee may conduct any activities which fall under this general criteria, but are not
specifically mentioned above, ]essee must obtain written consent of the City.
(Ord. 532)
11.20.710 Controlled access.
Lessee, for its own protection, may construct or install fences, gates, or other types of
barriers to restrict access to portions of the demised premises that are not designated for a public
use and may provide reasonable controls for access to public use areas to allow for security for
Ordinance No. 2238-2007 Attachment "A° 5!311200? 839 AM
C:\Documents and SeCtings\cfi'eas\Local SeUings\Temporatry Internee Files\OLKB\Chaptex 111.doc
Page 44 of 46
such areas while insuring reasonable public access. Reasonable public access includes
accommodations made for fishing operations during fishing season.
11.20.720 Use charges.
Lessee shall make reasonable and non-discriminatory charges to the public for use of any
of its facilities. It is expressly recognized that lessee is entitled to a margin of profit, which
should be fair, reasonable, and competitive, and that City will cooperate to this end in
considering rates and fees. The [COMMISSION] City Manager review all rate structures
annually. The lease shall contain an arbitration provision as set forth in KMC 11.20.670 to
resolve disputes arising hereunder.
11.20.730 Maintenance of dock.
Lessee covenants Chat it will maintain the dock facility in a safe condition and in
accordance with applicable state and federal standards.
11.20.7A0 Modifications of existing leases.
Leases shall only be modified eo that extent deemed to be necessary to protect the
pubIie's interest.
1.1.20.750 Unauthorized removal of material prohibited.
Any person, firm, or corporation who without written authority from the City removes
rock, gravel, or other material from the lands owned by the City without the express consent of
the City shall be deemed guilty of a violation. Any criminal action taken against such person
shall not preclude the institution of civil proceedings by the City.
11.20.760 Removal not authorized by lease.
No deed or lease granted by the City to any person shall contain terms or be construed as
granting any right to remove material from City lands.
11..20.770 Disposition of rights by Council.
In recognition that conditions may exist from time to time whereby use of such lands and
the material comprising the same may be beneficial to the public interest and promote the
progress and development of the City, applications for the use thereof may be received and
considered by the Planning and Zoning Commission, providing such applications fully disclose
to the City all material facts and plans for the proposed use. Such applications shall be consistent
with the Comprehensive Plan of Che City [AND REFERRED TO THE CITY PLANNING
COMMISSION FOR ITS RECOMMENDATIONS]. Disposition of such applications shall be
made by the Council after recommendation from. the Commission.
11.20.70 Penalties.
(a) It is unlawful for any person to violate any of the provisions of this chapter and upon
conviction thereof shall be fined as provided for violations in KMC 13.05.010. Each day such
Ordinauce No. 2238-2007 AttachmenC "A° 5/31/2007 8:39 AM
C:\Documents and Settin~*s\efreas\Local Settings\Temporary Internet Files\OLKB\Chapter ll l.doc
Page 45 of 46
violation is committed or permitted to continue shall constitute a separate offense and shall be
punishable as such hereunder.
(b) In addition to or as an alternative to the above penalty provision, the City may impose a
civil penalty in an amount as provided by KMC 13.05.010 per day for the violation of any
provision of this chapter and seek injunctive relief for any infraction thereof for which the
offending party will be charged for reasonable attorney's fees and costs incurred by the City as
awarded by the court.
(c) Nothing in this section shall be deemed to restrict the City's exercise of any of its rights
pursuant to the lease agreement including those enumerated in KMC 11.20.220 and KMC
11.20.240 hereof.
11.20.790 Tideland leases for shore fisheries.
(a) .The annual minimum rental rate for tideland leases used primarily for shore fisheries
shall be three hundred dollars ($300.00) per year. However, should the Slate of Alaska set an
annual lease rate higher than three hundred dollars ($300.00) for similar tideland leases for shore
fisheries on land owned by the State, the City may amend the annual rental to a rate equal to that
charged by the State of Alaska. Any money owed pursuant to KMC 11.20.150 shall be in
addition to the annual minimum set forth above.
(b) Neither KMC 11.20.160 nor KMC 1 L20.620(a) shall apply to tideland leases for shore
fisheries.
(c) The provisions of KMC 11.20.110 and KMC 11.20.130 requiring appraisals of tideland
property shall not apply to leases of tidelands for shore fisheries. However, the survey provisions
of KMC 11.20.110 are applicable to shore fishery leases.
Ordinance No. 2238-2007 Attachment "A" 5/31/2007 8:39 AM
C:1Documen[s and SeRtin~slefreas~Loeal SettingsVTemporary Internet FilesVOLKB1Chapfer II l.doc
Page 46 of 46