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HomeMy WebLinkAbout2014-08-20 Council PacketCOUNCIL MEETING CLOSEOUT TASK LIST Meeting: August 20, 2014 Trim and publish meeting audio /video in Granicus Create ction Agenda Hang hard copy on the official bulletin board Upload a copy to the webpage Forward link via email to all employees, Council Members, Student Re resentative, Kenai Borough Assembly Representative Place a copy in the meeting file Process egislation Sign and seal adopted legislation Amend necessary legislation for the Mayor's signature Scan adopted legislation into Laserfiche as a TIF (be sure to include supporting material provided as a lay down with the scanned and filed copy) Forward via email, using Laserfiche, adopted legislation to its specific department Forward via email a copy of all adopted legislation to Robin in finance Forward adopted ordinances which amend KMC to Jacqueline in legal, both a signed PDF copy and original in word format Distribute adopted legislation to individuals as outlined in the document or as requested by council or administration (i.e. Governor, Senator, etc.) File the original adopted legislation and supporting documents Process Packet Documents Stamp all items accordingly (i.e. "Approved by Council ", Reviewed uncil ", "Referred ") Return originals to its specific department Upload approved meeting minutes to website, scan into Laserfiche and file original Other Complete "Notice of Passed Ordinances and Resolutions" with affixed seal and hang on the official bulletin board. Place original in meeting file Complete the ordinance and resolution indexes accordingly Draft meeting minutes Create draft agenda for next meeting Update Council Attendance Record Place copy of completed checklist in meeting file folder Scan folder into Laserfiche and file XACOUNCILTORMS Revised 03/10/14 -SM CITY OF KENAI NOTICE OF ORDINANCES AND RESOLUTIONS ADOPTED AT THE AUGUST 20, 2014 KENAI CITY COUNCIL MEETING NOTICE IS HEREBY GIVEN the City of Kenai Council passed the following Ordinance(s) and /or Resolution(s) at the above - referenced meeting. 1. ENACTED AS AMENDED. Ordinance No. 2748 -2014 —Amending Kenai Municipal Code 1.90.020 - Duties, to Provide that Boards, Commissions, and Committees Act in an Advisory Capacity to Council. 2. ENACTED AS AMENDED. Ordinance No. 2761 -2014 —Amending the Kenai Municipal Code, Title 23, "Personnel Regulations," Chapters 23.05 General Provisions, 23.10 Categories of Service, 23.15 Administration, 23.25 Compensation, 23.30 Personnel Policies and Procedures, 23.35 General Conduct, Discipline, Termination, and Appeal, and 23.40 Benefits to Update Personnel Regulations with State and Federal Law, and Make Technical Changes, and Corrections. 3. ENACTED UNANIMOUSLY. Ordinance No. 2786 -2014 — Enacting KMC 23.40.035 - Bona Fide Employer- Sponsored Medical Leave Sharing Arrangement. 4. ENACTED UNANIMOUSLY. Ordinance No. 2787 -2014 — Repealing KMC 7.15.110 - Offset Against Delinquent Taxes, and Re- Enacting the Code Section as KMC 7.15.110 - Tax Compliance, to Require Individuals and Businesses Contracting with the City to be in Compliance with City Tax Ordinances. 5. ENACTED UNANIMOUSLY. Ordinance No. 2788 -2014 — Increasing Estimated Revenues and Appropriations in the Airport and Airport Equipment Capital Project Funds for the Purchase of Snow Removal Equipment (SRE) — Plow Truck with Attachments. 6. ADOPTED UNANIMOUSLY. Resolution No. 2014 -56 — Authorizing the Purchase of Airport Snow Removal Equipment for the Total Amount of $543,706 Utilizing the National Joint Powers Alliance Purchasing Program. 7. ADOPTED UNANIMOUSLY. Resolution No. 2014 -57 — Designating the State of Alaska, Department of Environmental Conservation (ADEC) Grant Funds for the Project Entitled Wastewater Treatment Plant Upgrades -Phase II as the Number One Local State Funding Priority for Fiscal Year 2016. 8. ADOPTED. Resolution No. 2014 -58 — Authorizing a Budget Transfer within the General Fund for the Payment of Back Property Taxes to the Kenai Peninsula Borough on Land to be Retained for a Public Purpose. 9. ADOPTED UNANIMOUSLY. Resolution No. 2014 -59 — Declaring Equipment, Supplies, and Materials Surplus or Obsolete, and to be Sold as Allowed in Kenai Municipal Code 7.15.060 and 7.15.070. Copies of the ordinances and /or resolutions are available in the Office of the Kenai City Clerk. Please be advised, subject to legal-limitations, ordinances and /or resolutions may have been amended by the Council prior to adoption without further public notice. 14 'Uw Sandr od h; CMQ City Clerk Posted: August 22, 2014- ACTION AGENDA KENAI CITY COUNCIL — REGULAR MEETING AUGUST 20, 2014 7:00 P.M. KENAI CITY COUNCIL CHAMBERS 210 FIDALGO AVE., KENAI, AK 99611 http://www.ci.kenai.ak.us A. CALL TO ORDER 1. Pledge of Allegiance 2. Roll Call 3. Agenda Approval 4. Consent Agenda (Public comment limited to three (3) minutes per speaker; thirty (30) minutes aggregated) *All items listed with an asterisk ( *) are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. B. SCHEDULED PUBLIC COMMENTS (Public comment limited to ten (10) minutes per speaker) C. UNSCHEDULED PUBLIC COMMENTS (Public comment limited to three (3) minutes per speaker; thirty (30) minutes aggregated) D. PUBLIC HEARINGS (Testimony limited to three (3) minutes per speaker; thirty (30) minutes aggregated) 1. ENACTED AS AMENDED. Ordinance No. 2748 -2014 — Amending Kenai Municipal Code 1.90.020 - Duties, to Provide that Boards, Commissions, and Committees Act in an Advisory Capacity to Council. [Clerk's Note: At its May 20'h meeting, Council postponed this ordinance to the August 20th meeting. Motion to enact is on the floor.] 2. ENACTED AS AMENDED. Ordinance No. 2761 -2014 — Amending the Kenai Municipal Code, Title 23, "Personnel Regulations," Chapters 23.05 General Provisions, 23.10 Categories of Service, 23.15 Administration, 23.25 Compensation, 23.30 Personnel Policies and Procedures, 23.35 General Conduct, Discipline, Termination, and Appeal, and 23.40 Benefits to Update Personnel Regulations with State and Federal Law, and Make Technical Changes, and Corrections. [Clerk's Note: At its July 2 d meeting, Council postponed this ordinance to the August 20`h meeting. Motion to enact is on the floor.] 3. ENACTED UNANIMOUSLY. Ordinance No. 2786 -2014 — Enacting KMC 23.40.035 - Bona Fide Employer- Sponsored Medical Leave Sharing Arrangement. 4. ENACTED UNANIMOUSLY. Ordinance No. 2787 -2014 — Repealing KMC 7.15.110 - Offset Against Delinquent Taxes, and Re- Enacting the Code Section as KMC 7.15.110 - Tax Compliance, to Require Individuals and Businesses Contracting with the City to be in Compliance with City Tax Ordinances. 5. ENACTED UNANIMOUSLY. Ordinance No. 2788 -2014 — Increasing Estimated Revenues and Appropriations in the Airport and Airport Equipment Capital Project Funds for the Purchase of Snow Removal Equipment (SRE) — Plow Truck with Attachments. POSTPONED TO 913114 MEETING. Ordinance No. 2789 -2014 — Amending Kenai Municipal Code Section 11.05.050, "Condition as to Equal Services and Rates," to Require that the City Provide Residents of the City of Kenai with Free Services at the City -Owned Boat Launch and Parking Facility. ADOPTED UNANIMOUSLY. Resolution No. 2014 -56 — Authorizing the Purchase of Airport Snow Removal Equipment for the Total Amount of $543,706 Utilizing the National Joint Powers Alliance Purchasing Program. 8. ADOPTED UNANIMOUSLY. Resolution No. 2014 -57 — Designating the State of Alaska, Department of Environmental Conservation (ADEC) Grant Funds for the Project Entitled Wastewater Treatment Plant Upgrades -Phase II as the Number One Local State Funding Priority for Fiscal Year 2016. 9. ADOPTED. Resolution No. 2014 -58 — Authorizing a Budget Transfer within the General Fund for the Payment of Back Property Taxes to the Kenai Peninsula Borough on Land to be Retained for a Public Purpose. 10. ADOPTED UNANIMOUSLY. Resolution No. 2014 -59 — Declaring Equipment, Supplies, and Materials Surplus or Obsolete, and to be Sold as Allowed in Kenai Municipal Code 7.15.060 and 7.15.070. E. MINUTES 1. APPROVED BY CONSENT AGENDA. *Regular Meeting of August 6, 2014 F. UNFINISHED BUSINESS 1. ENACTED AS AMENDED. Reconsideration of Ordinance No. 2780 -2014 — Amending KMC 12.40.010 — Definitions, to Include and Regulate the Use of Electronic Cigarettes and the Smoking of Non- Tobacco Plant Based Materials the Same as the City Currently Regulates Smoking Tobacco. (Clerk's Note: At its August 20`h meeting, this ordinance failed and notice for _ reconsideration was given.) Kenai City Council Meeting Page 2 of 5 August 20, 2014 G. NEW BUSINESS 1. APPROVED BY CONSENT AGENDA. *Action /Approval — Bills to be Ratified. 2. APPROVED BY CONSENT AGENDA. *Action /Approval — Purchase Orders Exceeding $15,000. INTRODUCED BY CONSENT AGENDA/PUBLIC HEARING ON 913114. *Ordinance No. 2790 -2014 — Waiving Certain Lease Provisions Imposed by Kenai Municipal Code Chapter 21.10- Leasing of Airport Reserve Lands, and Approving a Non - Standard Lease Form for the Lease of Lot 2, Block 1, General Aviation Apron, Located within the Airport Reserve, to Legacy Electric. 4. INTRODUCED BY CONSENT AGENDA/PUBLIC HEARING ON 913114. *Ordinance No. 2791 -2014 — Declaring that T 5N R 11W Sec 5 Seward Meridian KN 0003025 East Addn Townsite of Kenai — US Survey 3025 A & B Lots 12, 13, 14, 15 and 16, Block 3, Kenai, Alaska, also Known as 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska, whose Last Record Owner Under Borough Assessment Records was the First Baptist Church, 5432 E. Northern Lights Boulevard, #416, Anchorage, Alaska, Shall be Retained by the City of Kenai for a Public Purpose. 5. INTRODUCED BY CONSENT AGENDA/PUBLIC HEARING ON 913114. *Ordinance No. 2792 -2014 — Accepting and Appropriating a Grant from State of Alaska Division of Health and Social Services EMS Division Passed Through Kenai Peninsula Emergency Medical Services, Inc. for Travel and Training. 6. NO ACTION TAKEN. Action /Discussion — Schedule Work Session to Discuss Ordinance No. 2782 -2014 & Ordinance No. 2783 -2014 Amending the Land Use Table and a Policy on Gifting. 7. APPROVED UNANIMOUSLY. Action /Approval - Consent to Sublease between Peninsula Art Guild, Inc. and the Kenai Potters Guild for a Portion of Lot 3, Block 17, Original Townsite of Kenai and the Building known as the Fine Arts Center. 8. COUNCIL CONCURRED TO PLACE THIS AS A FUTURE PROJECT. Discussion — Improvements to Upstairs City Hall. H. COMMISSION /COMMITTEE REPORTS Council on Aging Airport Commission Harbor Commission Library Commission Parks and Recreation Commission Planning and Zoning Commission Kenai City Council Meeting August 20, 2014 J. 7. Beautification Committee 8. Mini -Grant Steering Committee REPORT OF THE MAYOR 1. City Manager 2. City Attorney 3. City Clerk K. ADDITIONAL PUBLIC COMMENT 1. Citizens Comments (Public comment limited to five (5) minutes per speaker) 2. Council Comments L. EXECUTIVE SESSION Consultation with Attorney and City Manager to Discuss Offer To Purchase Lot 2, Block 1, Gusty Subdivision, a Matter which the Immediate Knowledge would Clearly have an Adverse Effect Upon the Finances of the City [AS 44.62.310(c)(1)]. 2. Consultation with Attorney and City Manager to Discuss the Retention of Properties 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska, by the City of Kenai for a Public Purpose, Matters which by Law, Municipal Charter, or Ordinance are Required to be Confidential — Attorney Client Privilege [AS 44.62.310 (c)(3)]. M. PENDING ITEMS 1. Ordinance No. 2782 -2014 — Enacting KMC 14.20.171 — Group Care Facilities, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Define and Provide Zoning Regulations for Group Care Facilities. [Clerk's Note: At its August 6 1 meeting, Council postponed this ordinance to the September 17'h meeting.] 2. Ordinance No. 2783 -2014 — Enacting KMC 14.20.172 — Emergency Shelters, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Provide Zoning Regulations for Emergency Shelters that Provide Temporary Housing for Homeless and Others in Need of Safe Accommodations. [Clerk's Note: At its August 6h meeting, Council postponed this ordinance to the September 17"' meeting.] N. ADJOURNMENT INFORMATION ITEMS 1. Purchase Orders between $2,500 and $15,000 for Council Review. Kenai City Council Meeting Page 4 of 5 August20,2014 2. Correspondence from the Alaska Future Problem Solving Program Thanking Mayor Porter for Her Support. 3. Kenai River Marathon Sponsorship Request. The agenda and supporting documents are posted on the City's website at www.ci.kenai.ak.us. Copies of resolutions and ordinances are available at the City Clerk's Office or outside the Council Chamber prior to the meeting. For additional information, please contact the City Clerk's Office at 907 - 283 -8231. Kenai City Council Meeting Page 5 of 5 August 20, 2014 E. F G. Kenai City Coun August 20, 2014 4. Ordinance No. 2787 -2014 — Repealing KMC 7.15.110 - Offset Against Delinquent Taxes, and Re- Enacting the Code Section as KMC 7.15.110 -Tax Compliance, to Require Individuals and Businesses Contracting with the City to be in Compliance with City Tax Ordinances ...... ............................... Pg. 101 5. Ordinance No. 2788 -2014 — Increasing Estimated Revenues and Appropriations in the Airport and Airport Equipment Capital Project Funds for the Purchase of Snow Removal Equipment (SRE) — Plow Truck with Attachments.......................................................... ............................... Pg. 105 6. Ordinance No. 2789 -2014 — Amending Kenai Municipal Code Section 11.05.050, "Condition as to Equal Services and Rates," to Require that the City Provide Residents of the City of Kenai with Free Services at the City -Owned Boat Launch and Parking Facility ............................. ............................Pg. 109 7. Resolution No. 2014 -56 —Authorizing the Purchase of Airport Snow Removal Equipment for the Total Amount of $543,706 Utilizing the National Joint Powers Alliance Purchasing Program ................................... ............................Pg. 137 8. Resolution No. 2014 -57 — Designating the State of Alaska, Department of Environmental Conservation (ADEC) Grant Funds for the Project Entitled Wastewater Treatment Plant Upgrades -Phase II as the Number One Local State Funding Priority for Fiscal Year 2016 .............. ............................Pg. 139 9. Resolution No. 2014 -58 — Authorizing a Budget Transfer within the General Fund for the Payment of Back Property Taxes to the Kenai Peninsula Borough on Land to be Retained for a Public Purpose ........ ............................... Pg. 149 10. Resolution No. 2014 -59 — Declaring Equipment, Supplies, and Materials Surplus or Obsolete, and to be Sold as Allowed in Kenai Municipal Code 7.15.060 and 7.15. 070 .......................................... ............................... Pg. 151 MINUTES 1. *Regular Meeting of August 6, 2014 UNFINISHED BUSINESS .......... Pg. 155 Reconsideration of Ordinance No. 2780 -2014 — Amending KMC 12.40.010 — Definitions, to Include and Regulate the Use of Electronic Cigarettes and the Smoking of Non - Tobacco Plant Based Materials the Same as the City Currently Regulates Smoking Tobacco. [Clerk's Note: At its August 20th meeting, this ordinance failed and notice for reconsideration was given.] ... Pg. 167 NEW BUSINESS 1. *Action /Approval — Bills to be Ratified ................ ............................... Pg. 215 2. *Action /Approval — Purchase Orders Exceeding $15,000 .................. Pg. 217 Page 2 of 4 3. *Ordinance No. 2790 -2014 — Waiving Certain Lease Provisions Imposed by Kenai Municipal Code Chapter 21.10- Leasing of Airport Reserve Lands, and Approving a Non - Standard Lease Form for the Lease of Lot 2, Block 1, General Aviation Apron, Located within the Airport Reserve, to Legacy Electric Pg. 221 4. *Ordinance No. 2791 -2014 — Declaring that T 5N R 11W Sec 5 Seward Meridian KN 0003025 East Addn Townsite of Kenai — US Survey 3025 A & B Lots 12, 13, 14, 15 and 16, Block 3, Kenai, Alaska, also Known as 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska, whose Last Record Owner Under Borough Assessment Records was the First Baptist Church, 5432 E. Northern Lights Boulevard, #416, Anchorage, Alaska, Shall be Retained by the City of Kenai for a Public Purpose .............................. Pg. 229 5. *Ordinance No. 2792 -2014 —Accepting and Appropriating a Grant from State of Alaska Division of Health and Social Services EMS Division Passed Through Kenai Peninsula Emergency Medical Services, Inc. for Travel and Training. Pg. 233 6. Action /Discussion —Schedule Work Session to Discuss Ordinance No. 2782- 2014 & Ordinance No. 2783 -2014 Amending the Land Use Table and a Policy on Gifting. 7. Action /Approval -Consent to Sublease between Peninsula Art Guild, Inc. and the Kenai Potters Guild for a Portion of Lot 3, Block 17, Original Townsite of Kenai and the Building known as the Fine Arts Center ........................ Pg. 237 8. Discussion — Improvements to Upstairs City Hall ............................... Pg. 249 H. COMMISSION /COMMITTEE REPORTS 1. Council on Aging 2. Airport Commission 3. Harbor Commission 4. Library Commission 5. Parks and Recreation Commission 6. Planning and Zoning Commission. 7. Beautification Committee 8. Mini -Grant Steering Committee I. REPORT OF THE MAYOR J. ADMINISTRATION REPORTS 1. City Manager .. ............................... 2. City Attorney 3. City Clerk K. ADDITIONAL PUBLIC COMMENT 1. Citizens August 20, 2014 ....................... ............................... Pg. 253 limited to five (5) minutes ..... Pg. 257 2. Council Comments L. EXECUTIVE SESSION M. 1. Consultation with Attorney and City Manager to Discuss Offer To Purchase Lot 2, Block 1, Gusty Subdivision, a Matter which the Immediate Knowledge would Clearly have an Adverse Effect Upon the Finances of the City [AS 44.62.310(c)(1)]. 2. Consultation with Attorney and City Manager to Discuss the Retention of Properties 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska, by the City of Kenai for a Public Purpose, Matters which by Law, Municipal Charter, or Ordinance are Required to be Confidential — Attorney Client Privilege [AS 44.62.310 (c)(3)]. 1. Ordinance No. 2782 -2014— Enacting KMC 14.20.171 —Group Care Facilities, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Define and Provide Zoning Regulations for Group Care Facilities. [Clerk's Note: At its August 6th meeting, Council postponed this ordinance to the September 17" meeting.] 2. Ordinance No. 2783 -2014 — Enacting KMC 14.20.172 — Emergency Shelters, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Provide Zoning Regulations for Emergency Shelters that Provide Temporary Housing for Homeless and Others in Need of Safe Accommodations. [Clerk's Note: At its August 6' meeting, Council postponed this ordinance to the September 17th meeting.] N. ADJOURNMENT INFORMATION ITEMS 1. Purchase Orders between $2,500 and $15,000 for Council Review. 2. Correspondence from the Alaska Future Problem Solving Program Thanking Mayor Porter for Her Support. 3. Kenai River Marathon Sponsorship Request. The agenda and supporting documents are posted on the City's website at www.ci.kenai.ak.us. Copies of resolutions and ordinances are available at the City Clerk's Office or outside the Council Chamber prior to the meeting. For additional information, please contact the City Clerk's Office at 907 - 283 -8231. Kenai City Council Meeting Page 4 of 4 August 20, 2014 Suggested by: Council Member Boyle CITY OF KENAI fANCE NO. 2748 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KENAI MUNICIPAL CODE 1.90.020 - DUTIES, TO PROVIDE THAT BOARDS, COMMISSIONS, AND COMMITTEES ACT IN AN ADVISORY CAPACITY TO COUNCIL. WHEREAS, Kenai Municipal Code 1,90.020 currently provides that boards, commission, and committees of the City are advisory to department heads when there are related City Departments; and, WHEREAS, Council creates boards, commissions and committees of the City; and, WHEREAS, the Mayor generally nominates board, commission and committee members who are confirmed by council; and, WHEREAS, numerous sections of City code provide for committees and commissions to advise the Council on various items and in some instances Administration as well as other entities; and, WHEREAS, it is in the best interest of the City to clarify that City boards, commissions and committees are generally advisory to Council, unless otherwise specified in code. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that Section 1. Form: That this is a code ordinance. Section 2. Amendment of Section 1.90.020 of the Kenai Municipal Code: That Kenai Municipal Code, Section 1.90.020 - Duties, is hereby amended as follows: 1.90.020 Duties. (a) Members of boards, commissions, and committees shall be required to establish policies relating to their respective organization. They shall act in an advisory capacity to City Council [DEPARTMENT HEADS WITHIN THE CITY ADMINISTRATION IF THERE ARE SUCH DEPARTMENTS IN THE CITY ORGANIZATION THAT DIRECTLY RELATE TO THE BOARD, COMMISSION OR COMMITTEE] unless otherwise specified in City code. (b) If the board, commission or committee has income stated within the City of Kenai annual budget, said board, commission or committee shall work with the City Manager to establish expenses projected for the year for approval by the City Council New Text Underlined; DELETED TEXT BRACKETED) Page 5 of 272 Ordinance No. 2748 -2014 Page 2 of 2 Section 3. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: That pursuant to KMC 1.15.070(f , this ordinance shall take effect 30 days after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of May, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: April 2, 2014 Adopted: May 20, 2014 Effective: June 20, 2014 New Text Underlined; [DELETED TEXT BRACKETED] Page 6 of 272 11V'�lage with a Past, C# with a Future' 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 tatto Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 IIII1.I 1992 MEMO: TO: City Council FROM: Rick Koch, City Manager DATE: May 14, 2014 SUBJECT: Ordinance No. 2748 -2014 The purpose of this correspondence is to provide information in opposition to the above - referenced, proposed ordinance. My understanding of the proposed ordinance is that it would eliminate the code provision that Boards, Commissions and Committees are generally advisory to both the City Council and Administration (Department Heads), and to provide that the Boards, Commissions and Committees are generally advisory only to Council. This ordinance does not include an accompanying and /or supporting memorandum. As a result it is unclear what problem, or perceived problem, is attempting to be resolved by the adoption of this ordinance. Because the effects of this proposed ordinance are far - reaching, it is difficult for Administration to discuss all of the possible outcomes, or to envision the manner in which Administration would support and /or interact with Boards, Commissions and Committees if this ordinance were adopted. Below, I will describe an example of how this change to Code could be problematic: The Director of the Parks Department wants to work with the Beautification Committee to receive their advice for the upcoming year's flower themes in the City's flower planters. Current Procedure The Director of the Parks Department simply works directly with the Beautification Committee without the participation of Council. The Beautification Committee confers and works with the Page 7 of 272 Director of Parks to develop and implement the City's flower theme. New Procedure if Ordinance is Adopted Does the Director of the Parks Department need to request that the City Manager go to the Council to request that the Council ask the Beatification Committee to provide advice to the Council on a flower planting theme? Then does the Council, upon receipt of advice from the Beautification Committee, determine if that advice is acceptable, and if so, transmit that advice to the City Manager who in turn passes it on to the Director of the Parks Department? Based on the language contained in the proposed ordinance it appears that any time the Administration wants to receive advice from five of eight Commissions or Committees it will be necessary to transmit that request for information through the City Council. Not only would this be unwieldy, but it may tend to politicize what are now routine administrative activities. At the very least, in the event Ordinance 2748 -2014 were adopted, policies and procedures would need to be created that defined the manner in which the Administration will be able to ask for, and receive, advice from five of the eight Commissions and Committees. I have attached Exhibit A, which shows effect of Ordinance 2748 -2014, highlighted in yellow. Currently, the Commissions and Committees already have a process by which to provide information and /or unsolicited advice to Council by communicating through the Council Liaison. Conversely, the City Council can always request information and /or advice directly from a Commission or Committee through a written communication. The purpose of this ordinance is unclear, and it creates confusion as to process when the Administration requires advice from Commissions and Committees. Therefore, with respect to the sponsor, Administration requests that the Council oppose Ordinance 2748 -2014. Page 8 of 272 z W Y LL 0 u No N 1 00 N W U Z _2 0 LL `0 L. U W LL LL W LL 0 tA H J Z i, a C t U N u Page 9 of 272 0 0 0 > v — a a a v m m m o N N T > V N — Yc m m E c a � c o > « p Z > > a a a o c E u v d � E E Q Q O u E E o o o u a' O O a c P m 5 o :E c a s m vu vu vu O p m ? c c n N C p C p C p U w N E v o v p v o V U V = - 1p 0 O O O U O V p O O v V Q m Z 2 a a m _ _ _ O « o o u 'u u '� 'u 'u 'u 'c 'u 0 « . j> 0 E O u iN E u° u mu uo u° upau °�� c g E « « f0 « « M c « c o • V a Q v Q U Q Y « u L c o p o c c c E o O " N E 'E u u u x 2 0 Q O 'ac E of aJ o71 c c E m a a v p a v v p > a u v m v m E E u a . m m x x t t« v m p Y t o a wi a E E o v m t� t t o E t > G O O E u Q O a a E ° E 0 c 0 o o m o E E E c O O v U in O V c U c E °° v oa p c 'N p o E 5 a m ° 'N 0 c ^o' E E! EE c c a m o U W o V o m c c c a `m mc n Y p_ .• ..- a a C t U N u Page 9 of 272 IlVilla9e with a Past, Ci� with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -75351 FAX: 907 - 283 -3014 IIIIII 1997 MEMO: TO: City Council FROM: i4� andra Modigh, City Clerk =Scott Bloom, City Attorney ff ick Koch, City Manager DATE: August 13, 2014 SUBJECT: Ordinance 2748 -2014 The purpose of this correspondence is to submit for Council review a draft of recommended changes to KMC 1.90. The draft represents a collaborative effort on the part of the City Attorney, City Clerk, and City Manager to address the issues brought forth in the above referenced ordinance and establish consistency in describing the formation, duties, and responsibilities of Commissions and Committees. This is a major re -write of portions of the code which results in much clearer, understandable guidance and direction. Consolidating the majority of code relating to Commissions and Committees into KMC 1.90 results in the elimination of the following code sections: 1. KMC 1.57 Library Commission 2. KMC 11.10 Harbor Commission 3. KMC 14.05 Planning & Zoning Commission 4. KMC 19.05 Parks and Recreation Commission 5. KMC 21.20 Airport Commission With minor clarifications the above referenced code sections have simply been moved into KMC 1.90. KMC 11.15 Tidelands would be deleted in its entirety. This code section specifically applied to processes which were employed to determine preferential rights to State of Alaska tidelends Page 10 of 272 leases which were transferred to the City as a result of the City receiving title to lands encompassed by Alaska Tidelands Survey 272. The procedures /process identified in this section of code were complete in the early 1980's and no longer have any application. A portion of KMC 11.20 will be eliminated and /or amended, as a some portions are moved to KMC 1.90 and some portions have been modified to recognize present practice. We recommend the Council schedule a work session to discuss these changes and for the City Clerk, City Attorney and City Manager to receive direction from the Council, Page 11 of 272 Chapter 1.90 COMMISSIONS AND COMMITTEES Sections: 1. 90.010 Creation 1.90.020 Council Liaison 1.90.030 Administrative Support 1.90.040 General Duties 1.90.050 Qualifications 1.90.060 Terms 1.90.070 Proceedings 1.90.075 Time and Place of Meeting 1.90.080 Library Commission 1.90.085 Harbor Commission 1.90.090 Parks and Recreation Commission 1.90.095 Beautification Commission 1.90.100 Airport Commission 1.90.105 Planning and Zoning Commission 1.90. 110 Commission on Aging 1.90.115 Mini -Grant Steering Committee 1.90.010 Creation All commissions and committees created by the Council of the City of Kenai, shall consist of seven (7) members, with the exception of the Commission on Aging and the Mini Grant Steering Committee, who shall be nominated by the Mayor and confirmed by the City Council from applications submitted to the City Clerk. 1.90.020 Council Liaison At the annual organizational meeting of the Council, or as soon as practicable thereafter, the Mayor, after consultation with the Council, shall nominate Council Members as a council liaison to any commission or committee. After confirmation by Council, the council liaison may attend all meetings of the commission or committee. A council liaison is not a member of, and shall have no voting power or any other rights of membership on the commission or committee. The Mayor, and other Council Members may attend meetings of commissions or committees when serving as an alternate for the council liaison, or in their capacity as elected officials. 1.90.030 Administrative Support City administrative staff shall attend and supply staff support to all meetings of commissions and committees. 1.90.040 General Duties (a) Members of commissions and committees shall be required to establish policies relating to their respective organization. They shall act in an advisory capacity to Council, the City Manager, and department heads within the City Administration if there are such departments in the City organization that directly relate to the commission or committee. (b) A chair and vice -chair shall be selected annually and shall be elected from and by the appointed members. Commission /Committee Review Page 1 of 9 August 2014 Page 12 of 272 (c) If the commission or committee has income stated within the City of Kenai annual budget, said commission or committee shall work with the City Manager to establish expenses projected for the year for approval by the City Council, 1.90.050 Qualifications (a)A member of a commission or committee must be a resident of the City of Kenai, unless the commission or committee is specifically exempted by Council from this requirement as follows: - Harbor Commission, up to two (2) non - resident members. - Library Commission, up to two (2) non - resident members. - Parks & Recreation Commission, up to two (2) non - resident members. - Beautification Commission, up to two (2) non - resident members. - Airport Commission, up to seven (7) non - resident members. (b) The member cannot be an officer or employee of the City of Kenai. If any member should move his or her residence from the corporate limits of the City of Kenai (if applicable), is an officer or employee of the City of Kenai, or shall be elected or appointed as an officer or employee of the City of Kenai, the service of such member shall terminate immediately. (c) Members of Commissions and Committees, except the Planning and Zoning Commission, will serve without salary or stipend, but will be reimbursed for all reasonable expenses incurred in connection with this service, only after approval by Council. 1.90.060 Terms (a) A member of a commission or committee shall serve for a term of three (3) years, unless the commission or committee is specifically exempted by Council from this requirement. At the expiration of a members term, the Mayor, with consent of the Council, can reappoint the member or recommend a replacement. (b) The terms of the initial commission or committee member shall be staggered so that three (3) members will be appointed for one (1) year; two (2) members will be appointed for two (2) years; and two (2) members will be appointed for three (3) years. Terms shall commence on January 1st of each year. 1.90.070 Proceedings (a) All commissions and committees will have regularly scheduled meetings which shall be open to the public. Exceptions to the meeting requirements shall be established by Council. Permanent records or minutes shall be kept of all proceedings and such minutes shall record the vote of each member upon every question. Every decision or finding shall immediately be filed in the office of the City Clerk and shall be a public record open to inspection by any person. All acts of commissions and committees are subject to the paramount authority of the City Council. (b) If the commission or committee member shall be absent, without the body excusing the absence for good cause, from more than one -half of all the meetings of his or her committee or commission, regular and special, held within any period of three (3) consecutive calendar months, he or she shall thereupon cease to hold the seat. A commission or committee member may not have more than three (3) excused absences during a twelve (12) month calendar year. Commission /Committee Review Page 2 of 9 August 2014 Page 13 of 272 (c) In all matters of parliamentary procedure, Robert's Rules of Order Newly Revised, 11th Edition, shall be applicable and govern all meetings, unless as specified in KMC 1.15.060 motions; KMC 1.15.100, speaking; and KMC 1.15.110, voting. (d) The responsibility of insuring that all members of boards, commissions and committees receive a copy of the Standard Procedures of Commissions and Committees lies with the City Clerk. 1.90.075 Time and Place of Regular Meetings (a) All regularly scheduled commission and committee meetings will be held at City Hall in Council Chambers beginning at 7:00 p.m. with the exception of the Commission on Aging and the Mini -Grant Steering Committee. 1.90.080 Library Commission (a) Duties and Powers: (1) As requested by the Council and /or Administration, develop, adopt, alter, or revise subject to approval by the City Council, a master plan for the physical development of library facilities for the City; (2) Submit annually to the City Manager, not less than ninety (90) days subsequent to the end of the preceding budget year, a list of the recommended capital improvements which, in the opinion of the Commission, are necessary or desirable to be constructed during the forthcoming three (3) year period. Such list shall be arranged in order of preference, with recommendations as to which projects shall be constructed in which year; (3) Make recommendations regarding any matter related to library service; (4) Serve as the liaison between the public and the City Council in regards to library service; (5) Work closely with the Friends of the Kenai Community Library for the betterment of the Kenai Community Library; (6) Shall act in an advisory capacity in the selection of the Library Director. (b) The Library Regulations shall be as listed under the regulations section in the Kenai Code, Supplement No. 18, adopted on September 20, 1982, and all future updates. 1.90.085 Harbor Commission (a) Duties and Powers: (1) As requested by the Council and /or Administration, 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, but are not limited to: (A) Development of the type, location, and sequence of all public harbor facilities; (B) The relocation, removal, extension, or change of use of existing harbor facilities; Commission /Committee Review Page 3 of 9 August 2014 Page 14 of 272 (2) Submit annually to the City Manager, not less than ninety (90) days subsequent to the end of the preceding budget year, a list of the recommended capital improvements which, in the opinion of the Commission, are necessary or desirable to be constructed during the forthcoming three (3) year period. Such list shall be arranged in order of preference, with recommendations as to which projects shall be constructed in which year. (3) As requested by the Council and /or Administration, make investigations regarding any matter related to City harbor facilities. (4) Shall act in advisory capacity in the selection of a Harbor Director should such a position be created by the City Council. 1.90.090 Parks and Recreation Commission (a) Duties and Powers: (1) As requested by the Council and /or Administration, develop, adopt, alter, or revise subject to approval by the City Council, a master plan for the physical development of recreation 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's recreation facilities may include, but are not limited to: (A) Development of the type, location, and sequence of all public recreation facilities; (B) The relocation, removal, extension, or change of use of existing recreation facilities. (2) Submit annually to the City Manager, not less than ninety (90) days subsequent to the end of the preceding budget year, a list of 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) As requested by the Council and /or Administration, make investigations regarding any matter related to City recreation. (4) As requested by the Council and /or Administration, make and prepare reports and plans for approval by the City Council. (5) Shall act in advisory capacity in the selection of a Director of Parks and Recreation. 1.90.095 Beautification Commission (a) Duties and Powers: (1) As requested by the Council and /or Administration, develop, adopt, alter, or revise subject to approval by the City Council, a master plan for the physical development of beautification enhancements 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's beautification areas may include, but are not limited to: (A) Development of the type, location, and sequence of all green spaces and planting areas; (B) The relocation, removal, extension, or change of use of existing green spaces and planting areas. Commission /Committee Review Page 4 of 9 August 2014 Page 15 of 272 (2) Submit annually to the City Manager, not less than ninety (90) days subsequent to the end of the preceding budget year, a list of 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) As requested by the Council and /or Administration, make investigations regarding any matter related to City beautification efforts and /or projects. (4) As requested by the Council and /or Administration, make and prepare reports and plans for approval by the City Council. 1.90.100 Airport Commission (a) Duties and Powers: (1) As requested by the Council and /or Administration, develop, adopt, alter or revise, subject to approval by the City Council, a master plan for the airport development. This may include, but is not limited to: (A) Development of type, location and sequence of all airport terminal facilities; (B) Development and use of all airport aeronautical lands. (2) Observe, oversee and guide in an advisory capacity, any matters relating to use of airport runways, airport terminal, and airport aeronautical lands. (3) Act in an advisory capacity to the Council, City Manager and the Airport Manager. (4) Review and recommendations to the City Manager on the airport budget. (5) Review and make recommendations to the City Manager for leases or sale of airport land(s). (6) Make recommendations to the City Manager on matters relating to policies regarding lease or sale of airport land(s). (b) Membership The Commission shall comprise of seven (7) members who shall be chosen so as to represent broadly the following areas: (1) One member, fixed base operator (FBO). (2)One member, lessee of airport aeronautical lands or terminal facility. (3)One member, with expertise in Federal Aviation Administration functions. (4) One member, representing the Civil Air Patrol. (5) Three members, at- large, representing the business and professional community. 1.90.105 Planning and Zoning Commission (a) Duties and Powers: (1) Review and act upon requests for variance permits, conditional use permits, planned unit residential development permits, and other matters requiring consideration under the Kenai Zoning Code. (2) Interpret the provisions of the Kenai Zoning Code and make determinations when requested by the Administrative Official. (3) Review the City of Kenai Comprehensive Plan on an annual basis and conduct a minimum of one (1) public hearing. Said recommendations shall be forwarded to the Council for consideration. Commission/Committee Review Page 5 of 9 August 2014 Page 16 of 272 (4) Promote public interest and understanding of comprehensive planning, platting, zoning, land management, and other issues relating to community planning and development. (5) Proposed plans for the rehabilitation or redevelopment of any area or district within the City. (6) Perform historic preservation reviews and duties as set forth in KMC 14.20.105. (b) The Commission shall act in an advisory capacity to the Kenai City Council regarding the following matters: (1) Kenai Zoning Code and Official City of Kenai Zoning Map amendments. (2) City and airport land lease or sale petitions. (c) The Commission shall act in an advisory capacity to the Kenai Peninsula Borough Planning Commission regarding the following matters: (1) Subdivision plat proposals. (2) Right -of -way and easement vacation petitions. (3) City of Kenai Comprehensive Plan amendments. (d) Stipend - Members of the Planning and Zoning Commission shall be compensated at the rate of one hundred dollars ($100.00) per month. (e) Appointment to the Planning & Zoning Commission (1) Public Notice — Application. (A)Whenever a term of a Commission member is to expire, and whenever a vacancy on the Commission occurs, the City Clerk shall notify the Council and advertise the notice of vacancy and request for applications, along with the deadline for filing an application. The application deadline shall be the same deadline as the Council observes for timely submissions to the City Clerk for inclusion of materials in the City Council meeting packet (as set by the policies and procedures of the Council) for the meeting at which the nomination for appointment is on the Council agenda. (B) The Clerk shall advertise the notice at least two (2) times a week for one (1) week by publication in a newspaper of general circulation, by posting on the City's website, and by posting in at least three (3) other public places in the City, one (1) of which shall be the official bulletin board of the City at City Hall. The last date of newspaper publication shall be no later than seven (7) days before nomination for appointment by the Mayor at a Council meeting. (C) An applicant shall file with the City Clerk a completed application for appointment to the Commission on a form provided by the Clerk. All applications filed by the advertised deadline, including those previously on file, shall be placed in the Council packet for the meeting where the nomination is made. (2) Nomination Procedure. Consideration shall . be given to the qualifications and merits of each applicant. The Mayor shall make nominations only from the list of persons who timely submitted an application as provided in subsection (a)(3). The Council may re- open the application period. (3) Confirmation by Council. The Kenai City Council shall review the Mayor's nomination no later than the next regular Council meeting following the meeting in which the Mayor Commission /Committee Review Page 6 of 9 August 2014 Page 17 of 272 made the nomination, at which time the Council shall consider whether to confirm the nomination. (4)Term of Office. Members of the Planning and Zoning Commission shall be appointed for a term of three (3) years. Terms shall end on December 31st of the third year. In the event a seat has six (6) months or less remaining to the unexpired term, the Mayor may choose to nominate an applicant for appointment to the remainder of the current term as well as to the full term immediately following the expiration date of the unexpired term, and the Council may confirm the appointment of the applicant to the remainder of the current term as well as to the full term. (f) Telephonic Participation at Planning & Zoning Commission Meetings (1) Except as otherwise provided in subsection (e), if at least a quorum is physically present at a Commission meeting, other commissioners may participate via telephone in the Commission meeting, if the commissioner declares that circumstances prevent physical attendance at the meeting. If the chair chooses to participate via telephone, the vice -chair shall preside. (2) No more than the first two (2) commissioners to contact the Clerk's office regarding telephonic participation in a particular meeting may participate via telephone at any one (1) meeting. (3) The commissioner shall notify the Clerk's office in writing as soon as reasonably practical, but not less than six (6) hours prior to the start of the Commission meeting that the member proposes to attend by telephone. Such notification shall state whether such telephonic participation is pursuant to subsection (xiv) or (xv), and shall provide the physical address of the location, the telephone number, and any available facsimile, email, or other document transmission service. Failure to provide the notification within the period of time provided herein shall result in the member's exclusion from attendance of a Commission meeting through telephonic participation. The Clerk or designee shall notify all Commission members of the request. (4) At the meeting, the Clerk or designee shall establish the telephone connection when the call to order is imminent. (5) A commissioner participating by telephone shall be counted as present for purposes of discussion and voting except for matters and agenda items appealable to the Board of Adjustment. (6) The commissioner participating by telephone shall make every effort to participate in the entire meeting. From time to time during the meeting, the presiding officer shall confirm the connection. (7) The commissioner participating by telephone may ask to be recognized by the presiding officer to the same extent as any other member except for matters and agenda items appealable to the Board of Adjustment. (8) To the extent reasonably practicable, the Clerk or designee shall provide backup materials to commissioners participating by telephone. (9) If the telephone connection cannot be made or is made and then lost, the meeting shall commence or continue as scheduled and the Clerk or designee shall attempt to establish or restore the connection. Commission /Committee Review Page 7 of 9 August 2014 Page 18 of 272 (10) Meeting times shall be expressed in Alaska time regardless of the time at the location of any commissioner participating by telephone. (11) Participation by telephone shall be allowed for regular, special and work session meetings of the Commission. (12) Remarks by commissioners participating by telephone shall be transmitted so as to be audible by all members and the public in attendance at the meeting, provided that in executive session the remarks shall be audible only to those included in the executive session. (13) As used in these rules, "telephone' means any system for synchronous two (2) way voice communication. "Chair" includes the vice -chair or any other commissioner serving as chair pro tempore. (14) Each commissioner may attend a maximum of two (2) meetings by teleconference during the twelve (12) month calendar year. (15) A commissioner may attend an additional two (2) meetings by teleconference during the twelve (12) month calendar year if the member declares that he or she is physically unable to attend the meeting due to the need for extended medical care and treatment of the member or member's immediate family. (A)ln this section, "immediate family" means the spouse of the person, another person cohabitating with the person in a conjugal relationship that is not a legal marriage, a child (including a stepchild or foster child) of the person, a parent, sibling, grandparent, aunt or uncle of the person, or a parent or sibling of the person's spouse. 1.90.110 Commission on Aging (a) Duties and Powers: (1) As requested by the Council and /or Administration, develop, adopt, alter, or revise subject to approval by the City Council, a master plan for the operation of the senior center and senior citizen programs for the City of Kenai; (2) Submit annually to the City Manager, not less than ninety (90) days subsequent to the end of the preceding budget year, a list of the recommended capital improvements which, in the opinion of the Commission, are necessary or desirable to be constructed during the forthcoming three (3) year period. Such list shall be arranged in order of preference, with recommendations as to which projects shall be constructed in which year; (3) Make recommendations regarding any matters related to the needs of the senior center and senior citizen programs; (4) Serve as the liaison between the public and the City Council in regards to the needs of the elderly in the area; (5) Work closely with the programs which enable the continued independence of the senior citizens; (6) Shall act in an advisory capacity in the selection of the Senior Center Director. (b) Membership The Commission shall comprise of nine (9) members and over one -half of the members shall be participants of the Senior Citizens' programs, sponsored by the City and shall be sixty (60) years of age or older. No employee of the City is eligible for membership and no more than one member per house hold is permitted. Commission/Committee Review Page 8 of 9 August 2014 Page 19 of 272 (c) Time and Place of Meetings All meetings of the commission will be held at the Senior Center beginning at 3:30 p.m. 1.90.115 Mini -Grant Steering Committee (a) Duties and Powers: (1) Provides funding in the form of mini - grants for residents, school programs and organizations to use for projects that will have an immediate, positive, and long- lasting effect for their neighborhoods and the City of Kenai. (2) The City of Kenai may provide funds in its annual Legislative Budget for distribution. The maximum grant amount the Committee may award is $500. Grants larger than $500 must be approved by the Kenai City Council. Awards for funding are granted to prior - approved projects only. (b) Membership The Committee will include the Mayor, a Kenai Economic Development member, and one representative each from Kenai Central High School and the Kenai Chamber of Commerce. (c) Time and Place of Meeting The meetings will be conducted on an as needed basis to review applications submitted and will be held at City Hall in the City Clerk's conference room time to be determined by availability of the committee. Commission /Committee Review "age 9 of 9 August 2014 Page 20 of 272 Chapter 1.57 LIBRARY COMO 1.57.010 Duties and powers. The Commission shall be required to do the following: (a) Develop, adopt, alter, or revise subject to approval by the physical development of library facilities for the City; (b) Submit annually to the City Manager and Counci li other improvements in regards to the library; Council, a master plan for of recommended capital and (c) Make recommendations regard/'and r related to library service; (d) Serve as the liaison between thhe City Council in regards to library service; (e) Work closely with the Friends Community Library for the betterment of the Kenai Community Library; (f) Shall act in an advisory capacity)dthe selection of the Library Director. (Ords. 852, 1161, 1802 -98, 1.57.020 Library The Regulations shall be as listed under the regulations section in the Kenai Code, Supple nt No. 18, adopted on September 20, 1982, and all future updates. (Ords. 852, 1161,1802- A, 2184-2006) l l Page 21 of 272 Chapter 11.10 HARBOR COMMISSION 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 CI Council, a master plan for the physical development of harbor or port facilities for the Ci uch master plan with accompanying maps, plats, charts, descriptive, and explan at matter, shall show the Commission's recommendations for the development oft City Harbor facilities may include, among other things: (i) development of the type, location, an sequence of all public harbor facilities; (ii) the relocation, removal, extension r change of use of existing harbor facilities; (2) Submit annually to the City Manager a Council, not less than ninety (90) days prior to the beginning of the budget year, a list of a recommended capital improvements which, in the opinion of the Commission, are nec sary or desirable to be constructed during the forthcoming /as ) year period. S list shall be arranged in order of preference, with recommenda to which pro' cts shall be constructed in which year. (3) Make itions rega ing any matter related to City harbor facilities, tide or submerged lke reco mendations to the Council relative to the care, control, and development and s merged lands. (4) Act in tci as directed and authorized by a tidelands ordinance adopted by the City. (5) Review leases of City -owned tide, submerged, and lands or navigable waters within the Cis to the planned improvements proposed and make recommendations to the City Cou (6) Make/and prepare reports and plans for approval by the City Council (7) C rdinate public efforts, individual and group, to the effectuation of approved plans. (8) hall act in advisory capacity in the selection of a Harbor Director should such a position be Bated by the City Council. (Ords. 4 , 1161, 1802 -98) 2^ Page 22 of 272 Chapter 14.05 PLANNING AND ZONING COMMISSION 14.05.010 Duties and powers. (a) The Commission shall be required to perform the following duties: (1) Review and act upon requests for variance permits, conditional use permits, planned unit residential development permits, and other matters requiring consideration under the Kenai Zoning Code. (2) Interpret the provisions of the Kenai Zoning Code and make determinations when requested by the Administrative Official. (3) Review the City of Kenai Comprehensive Plan on an annual basis and conduct a minimum of one (1) public hearing. Said recommendations shall be forwarded to the Council for consideration. , (4) Promote public interest and understanding of comprehensive planning, platting, zoning, land management, and other issues relating to community planning and development. (5) Proposed plans for the rehabilitation or redevelopment of any area or district within the City. (6) Perform historic preservation reviews and duties as set forth in KMC 14.20.105. (b) The Commission shall act in "an advisory capacity to the Kenai City Council regarding the following matters: j (1) Kenai Zoning Code and/Official City of Kenai Zoning Map amendments. (2) City and airport land 16ase or sale petitions. (3) Capital Improvemelttts Programming. The Commission shall submit annually to the Council a list, recom ended capital improvements which, in the opinion of the Commission, are necessary and desirable to be constructed during the forthcoming three (3) year period. Such list shall be aryfanged in order of preference, with recommendations as to which projects shall be constructed in which year, (c) The Comrryfssion shall act in an advisory capacity to the Kenai Peninsula Borough Planning Commissi regarding the following matters: (1) Subdiv' ion plat proposals. (2) Righ4f -way and easement vacation petitions. (3) Ci Y of Kenai Comprehensive Plan amendments, (d) embers of the Planning and Zoning Commission shall be compensated at the rate of one hundr9d dollars ($100.00) per month. (KMC 14- 3;/Ords. 155, 403, 1018, 1161, 1179, 1892 -2000, 2312 -2008) Appointment to Planning and Zoning Commission. Public Notice — Application. (1) Whenever a term of a Commission member is to expire, and whenever a vacancy on the Commission occurs, the City Clerk shall notify the Council and advertise the notice of vacancy Page 23 of 272 and request for applications, along with the deadline for filing an application. The application deadline shall be the same deadline as the Council observes for timely submissions to the City Clerk for inclusion of materials in the City Council meeting packet (as set by the policies and procedures of the Council) for the meeting at which the nomination for appointment is on the Council agenda. (2) The Clerk shall advertise the notice at least two (2) times a week for one (1) week by publication in a newspaper of general circulation, by posting on the City's website, and by posting in at least three (3) other public places in the City, one (1) of which shall be the official bulletin board of the City at City Hall. The last date of newspaper publication shall be no later than seven (7) days before nomination for appointment by the Mayor at a Council meeting. (3) An applicant shall file with the City Clerk a completed application for appointment to the Commission on a form provided by the Clerk. All applications filed by the advertised deadline, including those previously on file, shall be placed in the Council packet for the meeting where the nomination is made. (b) Nomination Procedure. Consideration shall be given to the qualifications and merits of each applicant. The Mayor shall make nominations only from the list of persons who timely submitted an application as provided in subsection (a)(3). The Council may re -open the application period. (c) Confirmation by Council. The Kenai City Council shall review the Mayor's nomination no later than the next regular Council meeting following the meeting in which the Mayor made the nomination, at which time the Council shall consider whether to confirm the nomination. (d) Term of Office. Members of the Planning and Zoning Commission shall be appointed for a term of three (3) years. Terms shall end on December 31st of the third year. In the event a seat has six (6) months or less remaining to the unexpired term, the Mayor may choose to nominate an applicant for appointment to the remainder of the current term as well as to the full tern immediately following the expiration date of the unexpired term, and the Council may confirm the appointment of the applicant to the remainder of the current term as well as to the full term. (Ord. 2587 -2011) 14.05.020 Fees. In order to defray the expenses connected with the consideration of applications for amendment to the Kenai Zoning Code or Official Map and with the consideration of applications for permits, the person presenting the application shall pay to the City a fee in an amount as set forth in the City's schedule of fees adopted by the City Council. Whether an application is granted or denied by the Commission, the petitioner or applicant shall not be entitled to the return of the fee paid. (KMC 14 -11; Ords. 403, 954, 1161, 1179, 2528 -2011, 2565 -2011) 14.05.05 Telephonic participation at Planning and Zoning Commission meetings. 1 Page 24 of 272 (a) Except as otherwise provided in subsection (e), if at least a quorum is physically present at a Commission meeting, other commissioners may participate via telephone in the Commission meeting, if the commissioner declares that circumstances prevent physical attendance at the meeting. If the chair chooses to participate via telephone, the vice -chair shall preside. (b) No more than the first two (2) commissioners to contact the Clerk's office regarding telephonic participation in a particular meeting may participate via telephone at any one (1) meeting. (c) The commissioner shall notify the Clerk's office in writing as soon as reasonably practical, but not less than six (6) hours prior to the start of the Commission meeting that the member proposes to attend by telephone. Such notification shall state whether such telephonic participation is pursuant to subsection (n) or (o), and shall provide the physical address of the location, the telephone number, and any available facsimile, email, or other document transmission service. Failure to provide the notification within the period of time provided herein shall result in the member's exclusion from attendance of a Commission meeting through telephonic participation. The Clerk or designee shall notify all Commission members of the request. (d) At the meeting, the Clerk or designee shall establish the telephone connection when the call to order is imminent. (e) A commissioner participating by telephone shall be counted as present for purposes of discussion and voting except for matters and agenda items appealable to the Board of Adjustment. (f)The commissioner participating by telephone shall make every effort to participate in the entire meeting. From time to time during the meeting, the presiding officer shall confirm the connection. (g) The commissioner participating by telephone may ask to be recognized by the presiding officer to the same extent as any other member except for matters and agenda items appealable to the Board of Adjustment. (h) To the extent reasonably practicable, the Clerk or designee shall provide backup materials to commissioners participating by telephone. (i) If the telephone connection cannot be made or is made and then lost, the meeting shall commence or continue as scheduled and the Clerk or designee shall attempt to establish or restore the connection. 0) Meeting times shall be expressed in Alaska time regardless of the time at the location of any commissioner participating by telephone. (k) Participation by telephone shall be allowed for regular, special and work session meetings of the Commission. (1) Remarks by commissioners participating by telephone shall be transmitted so as to be audible by all members and the public in attendance at the meeting, provided that in executive session the remarks shall be audible only to those included in the executive session. (m) As used in these rules, "telephone" means any system for synchronous two (2) way voice communication. "Chair" includes the vice -chair or any other commissioner serving as chair pro tempore Page 25 of 272 (n) Each commissioner may attend a maximum of two (2) meetings by teleconference during the twelve (12) month calendar year. (o) A commissioner may attend an additional two (2) meetings by teleconference during the twelve (12) month calendar year if the member declares that he or she is physically unable to attend the meeting due to the need for extended medical care and treatment of the member or member's immediate family. (p) In this section, "immediate family" means the spouse of the person, another person cohabitating with the person in a conjugal relationship that is not a legal marriage, a child (including a stepchild orf'oster child) of the person, a parent, sibling, grandparent, aunt i or uncle ofthe person, or a parent or sibling of the person's spouse. (Ord. 2734 -2014) Page 26 of 272 Chapter 19.05 PARKS AND RECREATION 19.05.010 Creation. (Ord. 416, repealed 1161) 19.05.020 Duties and powers. The Commission shall be required to do the following: i (a) Develop, adopt, alter, or revise subject to approval by the City Council, a master plan for the physical development of recreation 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's recreation facility may include, among other things: (1) Development of the type, location, and sequence of all public recreation facilities; and (2) The relocation, removal, extension, or change of use of existing recreation facilities. (b) Submit annually to the City Manager and Council, not less than ninety (90) days prior to the beginning of the budget year, a list of 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. (c) Make investigations regarding any matter related to City recreation. (d) Make and prepare reports and plans for approval by the City Council. (e) Shall act in advisory capacity in the selection of a Director of Parks and Recreation. (Ords. 416, 1161 19.05.030 Terms and appointments to vacancies. (Ords. 416,(430, repealed 116 1) Qualifications of Commission members. Page 27 of 272 (Ords. 416, 619, repealed 116 1) 19.05.050 Proceedings of Commission. (Ord. 416, Yepealed 116 1) Page 28 of 272 Chapter 21.20 AIRPORT COMMISSION 21.20.010 Duties and powers. The Commission shall: (a) Develop, adopt, alter or revise, subject to approval by the City Council, a master plan for the airport development. This may include: (1) Development of type, location and sequence of all airport terminal facilities; (2) Development and use of all airport aeronautical lands. (b) Observe, oversee and guide in an advisory capacity, any matters relating to use of airport runways, airport terminal, and airport aeronautical lands. (c) Act in an advisory capacity to the Council and the Airport Manager. (d) Make recommendations to the City Manager on the airport budget. (Ords. 2180-2006, 2241-2007) 21.20.020 Qualifications. Members of the Airport Commission will conform to the requirements of the City of Kenai Boards, Commissions, and Committees Standard Procedures as established by KMC 1.90, except that members of the Airport Commission need not be residents of the City of Kenai. (Ords. 1531-93, 2180-2006) 21.20.030 Membership. The Commission shall comprise of seven (7) members who shall be chosen so as to represent broadly the following areas: (a) One member, fixed base operator (FBO). (b) One member, lessee of airport aeronautical lands or terminal facility. (c) One member, with expertise in Federal Aviation Administration functions. (d) One member, representing the Civil Air Patrol. (e) Three members, at- large, representing the business and professional community. One non - voting member, representing ad hoc member of the Kenai City Council. ( ds. 1531 -93, 2180 -2006) Page 29 of 272 Chapter 11.15 TIDELANDS 11. . ort title. This ordinance shall be known a's 11.15.020 Definitions. For the purpose of this ordinance, the terms defined herein shall have the meaning provided unless the context requires otherwise: (a) "Alaska" means the State of Alaska. (b) "Agricultural Lands" means tidelands chiefly valuable for agricultural purposes. (c) "Assessor" means the Assessor of the City of Kenai, Alaska, or other individual designated by the City Manager to perform the functions herein assigned to the Assessor. (d) "City" means the City of Kenai, Alaska. 14 l+) (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) ass i ht" means the right extended to persons who occupied or developed tide or submerged lan s wa • of a surveyed townsite on and prior to September 7, 1957, and who have executed a waiver to the City a f all rights such occupant may have had pursuant to Public Law 85 -303. Upon execution of the waiver, ersons or their successors in interest, have the right to acquire such occupied or developeNiklor submerged lands from the City for consideration of the costs of survey, and transferring and co ing the title. (g) "Clas ference Right" means the right extended to Class I preference right claimants who refuse to execute 910tiv4rto the City of any rights such occupants may have acquired pursuant to Public Law 85 -303. tls e mandatory for the City to expeditiously honor the application from the occupant after the Secre the Army has submitted to the Secretary of the Interior and Governor of the State maps showing the ad line established by the Corps of Engineers with respect to the tract so granted. The most expedi i ethod of securing title to such lands is to execute the waiver of Class II rights and proceed to app itle under a Class I preference right. (ijas II Preference Right" means the right extended to persons who occupied or developed tide or su lands after September 7, 1957, and who continued to occupy the same on January 3, 1959. Such pe or their successors, have the right to acquire such occupied or developed tide or submergedlgrdbr a consideration not to exceed the costs of appraisal, and the administering and transferring, inc survey, together with the appraised Page 30 of 272 ilh-mmka lue thereof, exclusive of any value occurring from improvements or development, such as fill materia , m 81nQ- ersttuc -, thereon_ (j) "Clerk" means the Clerk of the City. (k) "Commission" means the City of Kenai Ac Harbor Commission. -f'4— Ptrsw 4 �> a ' (1) "Director" means the Director ofCQs, State of Alaska. (m) "Director's Line" means a line seaward of the City, approved by the Director, with the concurrence of the Commissioner of Natural Resources, State of Alaska, seaward of all tide and submerged lands occupied or suitable for occupation and d velopment without unreasonable interference with navigation. (n) "Fair Market Value" means the highest price, described in terms of money, which the property would bring if exposed for sale for a reasonable time in the open market, with a seller, willing but not forced to sell, and a buyer, willing but not forced to buy, both being fully informed of all the purposes for which the property is best adapted or could be used. (o) "Fill" shall mean earth, gravel „ fuck, sand, or other similar materials placed upon tide or contiguous submerged lands to a height above the high water line for the propose of elevating the lands for a special useful purpose. Earth, gravel, rock, sand, or other similar materials, placed on tide or contiguous submerged land solely for the purpose of spoils disposal shall not be considered fill unless such fill was used for useful and beneficial purpose on and prior to January 3, 1959. (p) "Hearings Officer” means that City official employed to hear disputes between claimants, summarize the testimony, attempt to reach stipulations of fact between the parties, assemble the record of the dispute, and submit the same to the Council for determination. (q) "Improvements" means buildings, wharves, piers, dry docks, and other similar types of structures permanently fixed to the tide or contiguous submerged lands that were constructed and/or maintained by the applicant for business, commercial, recreation, residential, or other beneficial uses or purposes. Floats secured by guide piles used as floating wharves, where access is provided to the shore, shall be improvements within the meaning of this section, and fill material not actually in place to above the line of mean high tide of January 3, 1959 and actually utilized for neficial purposes on January 3, 1959 by the applicant shall be considered a permanent provement, but in no event shall fill be considered a permanent improvement when placed on e tidelands solely for the purpose of disposing of waste or spoils. Fill material not utilized r 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 applic ion, nor shall it be included in any application, for the exercise of preference rights 4(r) "Industrial and Commercial Lands" means tide lands chiefly valuable for industrial, tifacturing, or commercial purposes. Page 31 of 272 (s) "Kenai" means the City of Kenai, Alaska. (t) "Manager" means the Manager of the City of Kenai, Alaska (u) "Mean High Tide" at any place subject to tidal influence shall be interpreted as the tidal datum plane derived from averaging all the high waters observed at that place over a period of nineteen (19) years. Mean high water shall be interpreted to be as the intersection of the datum place of mean high water with the shore. (v) "Mean Low Tide" shall be interpreted to be mean lower low water which is the mean of the lower of the two low waters of each day for a tidal cycle of nineteen (19) years. (w) "Occupant" means any person as defined herein, or his successor in interest, who actually occupied for any business, residential, or other beneficial purpose, tide or submerged land, within the conveyance of such by the State to the City, on or prior to January 3, 1959, with substantial permanent improvements. No person shall be considered an occupant by reason of having: (1) Placed a fish trap in position for operation or storage upon the tide, shore, or submerged land; (2) Placed a set net or piling therefor or any other device or facility for taking of fish; (3) Placed pilings or dolphins for long storage or other moorage; (4) Placed telephone, power, or other transmission facilities, roads, trails, or other contiguous submerged lands; or (5) Claimed the land by virtue of some form of constructive occupancy. Where land is occupied by a person other than the owner of the improvements thereon, the owner of the improvements shall; "for the purpose of this ordinance, be considered the occupant of such lands. (x) "Occupied'or Developed" means the actual use, control, and occupancy, but not necessarily residence, of the tide or submerged land by the establishment thereon of substantial permanent improvements. "Orr mean K Or ' (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 ntity legally capable of owning land or any interest therein. Page 32 of 272 (bb) " Pierhead Line" is a line fixed by the Corps of Engineers roughly parallel to the existing line of mean low tide at such distance offshore therefrom that said pierhead line shall encompass landward all stationary, manmade structures under the authority of Public Law 85 -303. (cc) "Preference Right' subject to the classifications thereof herein established means the right of an occupant to acquire by grant, purchase, or otherwise, at the election of the occupant, except as otherwise limited or prescribed in this Ordinance, any lot, piece, parcel, or tract of tideland or submerged land occupied or developed by such occupant on and prior to January 3, 1959. (dd) "State" means the State of Alaska (ee) "Submerged Lands" means land covered by tidal waters between the line of mean low water and seaward to a distance of three (3) geographical miles, in their natural state, without being affected by manmade structures, fill, and so forth. (fI) "Substantial Permanent Improvements" shall for the purposes of the Ordinance have the same meaning as Improvements, as herein defined. (gg) "Tidelands" means lands periodically covered by tidal waters between the elevations of mean high tide and mean low tides, without regard to artificial interference with tidal flows caused by manmade structures, breakwaters, fill, and the like. p, shall also include submerged lands conveyed by the State to the City. (hh) "Tidelands Subdivision Plat" is that certain plat of subdivision of tidelands and submerged lands conveyed by the State to the City made by H.H. Galliett, Jr., Registered Engineer, dated December, 1968, known as Alaska Tidelands Survey No. 272 and filed as 76- 179 in the Kenai Recording District showing all structures and improvements thereon and the boundaries of each tract occupied or developed, together with the name of the owner or claimant thereof, including within the boundaries of each tract occupied or developed such surrounding tide and submerged lands as shall be reasonably necessary in the opinion of the Council for the use and enjoyment of the structures and improvements thereon by the owner or claimant, but shall not include any tide or submerged lands which if granted to such occupant, would unjustly deprive any occupant of adjoining lands from his reasonable use and enjoyment thereof. 11.15.030 Approval and acceptance of State conveyance. The conveyance by the State to the City, dated January 6, 1977 of tidelands and submerged lands lying seaward of the City is hereby approved and accepted and the lands therein are hereby declared incorporated into the limits of the City. 11.15.040 Approval and adoption of subdivision plat. Page 33 of 272 The Tidelands Subdivision Plat, hereinafter called "Plat"is hereby approved and adopted as the official Tidelands Subdivision Plat of the City of Kenai, Alaska, of tide and submerged lands conveyed by the State to the City by conveyance dated January 6, 1977. Said Alaska Tidelands Survey is numbered 272 and is filed under 76 -179 in the Kenai Recording District. and places o,"ting plat. S d Plat all be sted for eriod o not less t sixty (60 day commence g p the d e ]lowing e dat of final pass this ordinanc n the ffice of e Cler ,City Hall 1 .15.060 Publication of notice of posting plat and pl passage of ordinance. The Clerk shall cause to b issued and published once a eek for four weeks, in a\ n spaper of general circulation i the City, commencing the day after the I to of final passage of his ordinance, a notice of the posting of said plat containing the followiig statements: i I I (a Time and place of posting. I' (b The day of final passage and the effective date of this ordinance which adopts the plat as th4 official Tidelands Subdivision Plat of the tide and submerged lands conveyed by the State to th City on January 6, 1977. (c That any and all persons having or claiming preference rights provided, by law and as he ein defined to any part or parts of the subdivided land embraced within the boundaries of said PI t, who fail to apply to exercise s ch rights under the provisio s of this ordinance within two (2) years from and after October 6, 1979, which is hereby decl ed to be the date, upon which ap lic�ations therefor will be first accepted by the City, shall have forfeited their preference rights pr ided bylaw and this ordinance.' (d) That this Ordinance was enacted to protect occupants having preference ri hts, to afford due rocess of law, to provide procedures for applying for exercise of preference rights, for hearing and adjudicating adverse claims, and for conveying title to occupants holding preference rights defined by law and this ordinance. I i (e) \That copi of this ordinance and plicatio forms are availlble at the office of the Clerk of the City. (Ord. 455) 11\15.070 Tim 'n wh'ic, applications will be accepted for filing. Page 34 of 272 After im ' review of the applica ' n by the Commissi , the applicant sh I have pre ed at his o cost a preliminary and a] plat as describe in the following Ati7. (Ord. 455) 11.15.100 Preliminary plat. a) The applicant hall prepare, or have prN bmerged lands whic he claims. This plat sha f (b) The purpose of a pr liminary plat is to ai prelr inary review and prev t the unnecessary nece itated if major changes ere required. red, a preliminary plat of tj a tide, shore, or comply with the requireme is hereinafter set occupant an opportunity of receiving ture of money and time that.would be (c) he applicant must file hi application accompanied four black or blue -lined plats of the lay o t. (d) Th Commission shall forwar the preliminary plat to an e ineer to be designated by the Commissio who shall report to the Co mission his approval or disapproval of the plat for technical or gineering reasons and the mmission shall, within ninety (90) days after submission o e preliminary plat, notify t applicant of the tentative approval or disapproval of the plat and 's reasons therefor. (e) Condition approval of the preliminary Rather, it shall be d emed an expression of apps (Ord. 455) shall not constitute approval of the final plat. as a guide to preparation of the final plat. 115.110 Preliminary platquirements. The Preliminary Plat shakI show the following mf (a) egal description of location to include latitude and corner o the survey and the total acres of the area occupied (b) N e and address of applicant d name of land surveyor, preliminary ayout. (c) The ho izontal scale shall be 100' to a inch unless otherwise Commission. (d) Date of preparation and North Point. Page 35 of 272 to the nearest mute at one d. any, who prepared e ap roved by the The horizontal cale shall be 100' to the inc unless otherwise appro mmission. \ (f) The location of all oads within 200' of the tra , fill material, existir buil 'ngs, or other structure within the parcel, existing tility lines, mean hi with ference to permanent ctures and other perman t features such as such o er information as may requested by the City. (g) Skace for approval and/or comment by the (h) The ames of adjacent owners claimants, if any, other th \be (i) Adjac t U.S. Surveys, if any, givi the number of the Su (j) A vicinit ketch or key map should be own on the preli not be less than on -half inch to the mile. The rel 've location of tthe principal road s tems and section or special s y lines shall Survey procedure. by the low tide lines lines, and The scale shi 7. applied for, Wherever feasible, data asst forth in ATS 272, recorded in the Kenai Recording District as 7 %elennining 9 shall be used. Where addi 'onal data is required the follow i�tg procedures shall govern: (a) the line of mean tide. \ (1 In the case of U.S. Survey hick abuts the tidelands, such .S. Survey being made prior the date of statehood, the lin of mean high tide shall be cons rue to be either the meander linek established on the seaward sA of the U.S. Survey or the line Ns defined under Section 2(s) o these regulations, whichever is he lower. (2) F tidelands surveys abutting any .S. Survey made after the da of statehood or in any location here no uplands survey exists, a line of mean high tide shat a determined by using U.S.C. & .S. Bench Marks (or any other b \ncbmarks which have been tablished from that source) an tide table datum. The upland b need not follow this li a in its entire exactness, but ay follow in a "meander" or " line of mean high tide. ach end of the boundary should be stablished on the elevation igh tide. Provided, howe er, that where the true line of m high tide has been alterer artificial accretion, the li a of high tide as it existed prio to such alteration shall go (3) In the case tha property being surveyed, the s water, and applying tidal reading accordance with Paragraph (2) of the average grade of the bench is U.S.C. & G.S. Bench Mark e* eyor may, by using the tide tab he has taken, determine the line t is section. In some cases, such ten ercent (10 %) or less and del Page 36 of 272 within one mile of the for the immediate body o if mean high tide and use it A,salt or mud flat areas whe rriNning the elevation of the linrtof mean high tide could a that the true line of mean high mark. (b) Method of establishing side a lengthy horizontal distance, the ity Council may require be established, regardless of the di lance from a kno bench bo dary lines. (1) In fixing the side boundary ' es, the general rules of extendin Riparian Boundary Lines, as outlined by such authors Rayner, Clark or Brown, shall followed. In e event that actual occupancy does not match the iparian Boundaries, the survey shall be made t include the occupant's holdings and not to encroaci(on the adjoining occupant. \ (Ord. 455) ` 11.15.130 Procedure 0 mal plat. \G (a) The final plat shall nform 'Commission. (b) The final plat shall be A mylars together with five prints. (c) The final plat shall be drawr 20' or k0', on sheets of one of three substantially to the preliminary layout as approv�d by the 1 tied to the City Clerk on good quality tracing cloth,�n ink, or scale of 1" equals 100', with an option of using I" equals es: 18" x 24 ", 31 1/2" x 34 ", or 22" x 36 ", unless otherwis approved by the Commission. When more than one sheet is required, an index shal\�e filed sho 'ng the entire parcel with the s ets in numerical order, and each sheet showing the \ total numb r, i.e., sheet 1 of 3. When more an one sheet is submitted, only the last must have the approv blocks, but all sheets must be th same size. (d) When a final plat has been approved b the Commission, one copy shall be sent, along with the deed to a property, to the Magistrate o he Recording District in which the tract lies for official record g. Special instructions shall be nt to the Magistrate instructing him to send the deed to the occ ant after recording. One copy o the plat will be returned to the occupant. The original tracing c maining the certification by the ommission will be retained by the City. Prints or duplicate tr arencies will be furnished at c t of reproduction. (Ord. 455) 11.1540 Final plat uirements. (a) Th final plat shall i Jude all information required on the preliminary plat. Page 37 of 272 (H The final plat must represent an actual survey made by a person who has been t iSe State of Alaska, Board of Engineers & Architects Examiners to practice land st the St a of Alaska. (c) In addition thereto, the following information shall be shown on the final to (1) Bbundary lines of the parcel with length and bearings which rr}tist close within the limits of one to 5,000. If the seaward limits of the survey falls within the 1' of mean low tide, the seaward boundar N must represent lines actually established by the suror. (2) All easements as required by the City. (3) Basis of bearinngs used. (4) A properly labeled legend showing monurn s as found or established. (5) The course of the shoreline for an additional 400' from each side of the survey. (d) Monuments. (1) Minimum requirements: Monuments shall consist of a 1 1/2" galvanized iron pipe, 30 or more inches long. This pipe shall *e a four -inch flange across the bottom and shall be filled with concrete. Firmly emplaced in ft concrete at the top shall be a brass or bronze cap. The pipe shall be thoroughly tamped when set, (2) The brass or bronze cap shall have a minimum of two -inch diameter across the top and 3/4" by 2 1/2" shank. Each cap shall be marked in accordance with the Manual of Surveying instructions as compiled by the Bureau of Land Management and shall also show the registration number of the surveyor. (3) Where impracticable to set an iron pipe monument, a tablet containing a minimum of one thousand (1,00() )ubic inches of concrete and a brass or bran cap marking the actual confer point may be used. Should the point for a corner be in a place which would be impracticable to monument, witness corners shall be set in a safe place on the survey boundary line or have two (2) reference monuments set. The monuments on the uplands side ofthe survey shall be referenced to bearing objects, such as trees, rocks, piling, buildings, etc., or have two (2) reference monuments set marking the corner. (e) These references may be shown on the plat of survey or may be listed separately on a plat as descr' ed under KMC 11.15,130(c). Unless otherwise approved by the City Council, each survey shall have at least four (4) monuments, each fully described in the plat of survey. It is desirable but not mandatory that monuments be set at all exterior angle points of the parcel. The line of sight betwee� adjacent monuments shall be unobstructed. The distance between adjacent monuments shall rtet exceed one thousand three hundred twenty feet (1,320'). No part of the parcel sliall be farther 7 ne Page 38 of 272 thousand three hundred twenty feet (1,3201) from a monument unless otherwise approved ly� the City Council. (2) If the point for the seaward corner falls in an unsafe place, a witness corner shal e established on the side boundary line. /J tionship to Known Monument. (I Bearings of all lines shall be referred to the true meridian. The magneti eedle may not be u for this purpose. Bearings shall be obtained by deflection from exi� mg official curve at the G.L.O., B.L.M., U.S.C., and G.S., U.S.G.S., the Alaska Division of Lands, or monum is with proper identification which are delineated on recorde plats, unless otherwise provided r in these regulations. / (2) True b rings and distances to the nearest established survey lines, such as those listed previously, w 'ch shall be accurately described on the plat, sha be shown. 11.15.150 Deposits for costs`prerequisite to filing. The application form will assist the applicant in determining the proper costs to advance, which will depend upon the nature of the right claimed. In all cases a filing fee as set forth in the City's schedule of fees adopted by the City Council shall be required. Survey costs depend upon the area claimed at a per foot rate as set forth in the City's schedule of fees. If the area claimed is different from the lot as it appears on the plat, the applicant shall show the measurements of the additional or lesser area claimed and compute and pay the different survey cost accordingly. Transfer costs will be the same in all cases. They cover the cost of time estimated to be required to examine, process, and approve the application, as well as to prepare and execute the deed, publish notice, give notice of additional costs, if any, and give notice to applicant. In all cases, transfer costs will be in an amount as set forth in the City's schedule of fees adopted by the City Council. Deposit for appraisal costs will be required in all cases of Class III preference rights, or where another asserted right is determined by the Council to be a Class Ill right. Appraisal costs shall depend upon the area involved and the complexity of the appraisal sought. Where required as a deposit, the minimum and makimurr deposit for th appraisal fee shall be as set forth in the City's schedule of fees. (Ords. 455, 2528 -2011) i 11.15.160 Additional costs in certain cases. Aside from deposits required at the time of filing application, additional costs will be required to be paill prior to hearings where disputes require hearings, and for cost of land under a Class III right as/well as appraisal thereof when a preference right sought\to be exercised is determined to.lie a Class III right, as follows: (a) When the area claimed does not comply with the boundaries of the to hewn on the plat, it is necessary to have a hearing to establish the validity of the right claimed and w ther it is necessary for the plat to be changed to comply with the application. This may require otice to be Page 39 of 272 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. When applications conflict with the same area or portions thereof, it /sharequired essa to c nduct a hearing to determine the fact and the issue in question. Conflicting cle c fully scrutinized and each disputing party will bear the burden of proving f to esta lish the validity of his or her claim. (c) The party filing an application conflicting with a claim previously firequired to depo 't hearings costs in the amount of one hundred d ollars ($100.00). If the ot known at the ti of filing, the applicant shall be advised of the conflict as soon as it is of the need to de osit the hearing cost deposit. (d) T a applicant who after hearing and determination by the Counci s determined to have claimed the 1 d of another shall be the party to bear the cost of the hearin . If such party did not deposit such co s, no deed shall be delivered to him or her until the cos s paid. Where the depositor is the p vailing party, the hearing cost deposited shall be re nded to him or her by the City. (e) When title y Class IN preference right is claimed, th applicant shall be required to deposit the appraised p chase price after appraisal has been de and the purchase price has been so determined. The same rocedure will be applied when n pplication under another Class of right is sought but is determine hat the only available right to a applicant is a Class III right. (f) When a preference right i ought to be exercised o er than a Class III right and such right is determined to be a Class right, en the applicant sh be required to deposit the estimated cost of appraising the property claimed. (g) The applicant who rece� es the deed rom the City shall at his or her own cost bear the cost of recording the deed. (Ord. 455) 11.15.170 Procedures for processfna filed The Clerk shall cause tj e following procedure \to be carried out: (a) All copies o pplications accepted for filing sh I be stamped with time and date of filing and an application nu her in chronological order of filing. (b) Alt orig' al applications shall be filed in a permanen egister and the names of the applicants entere in an alphabetical index which shall be a perma nt part of such register. (c) Th pplication register shall be available for public inspe 'on during office hours of the Clerk excep . hen in actual use for filing and indexing. (d) ertified copies of all applications shall be prepared for all perso upon request upon their pa mg two dollars ($2.00) per page for copies of said applications and a attachments fonni g apart thereof. Page 40 of 272 (e Processing of Duplicate Applications. The third copy of the application will be to ft, applicant as his or her record and as ipt for deposit made, or mailed to applicant if he or she has provided a retu nvelope. The td \Class the working file copy to be handled and processed as follo (1ons to exercise Class I preference rights having waivers ched and which ap which comply with the plat with respect to area and b undary locations shall be trathe City Engineer for handling as provided in KMC 1.15.190. Applications to exreference rights which do not have waivers a hed, irrespective of whether thed r comply with the plat shall be segregated or han- dling in the same manner al\Class II (2) Applications to exercise Class refe i claim lands which do not comply with Ph shall be transmitted to the City Engin r I further processing as provided in C 11. (3) Applications to exercise Cl s II prefere I preference right applications of having wai in abeyance by the City unti uch time as the right applications. v rights having waivers attached, and which with respect to area and boundary locations, ndling as provided in KMC 11. 15.190 and rights shall be segregated and kept with Class ttached. All such applications shall be held •h d line is established by the Corps of Engineers, whereupon sue applications shall be prom ly honored and processed in the manner herein describe or Class I preference right app ations, where waivers are attached. (4) Applications to xercise Class III preference rights, an all applications determined in whole or in part toga Class III, shall be transmitted to the Ass or for appraisal as provided in KMC 11.15.Igo (5) No app /' ations which combine Class I, Class II, and Class III, any combination of such prefer ce rights, will be accepted for filing. Any such application resented for filing shall be r urned to the applicant for revision into two or more application each of which will apply f land under only one type of preference right. (6) An application to exercise one class of preference right which in part comp ' s with the PI with respect to area and boundary locations, but does not wholly comply with a Plat in ch respects, sha11 be treated as if no part of the application so complies with the Plat nd shall be processed for contest hearing. 455) 11.15.1 Appraisal. Page 41 of 272 All applications for Class II preference rights shall be transmitted to a professio er for appraisal. His appraisal shall be made on a form prepared in duplicate, original h shall be attached to the application and the duplicate of which shall be r ned for his . Applications when appraised shall be transmitted to the City Enginee or further ipg. (Ord. 455) 11.15.190 Revie\tt by City Engineer. All application being ready for processing s be reviewed by the City Engineer. Upon review and comparison ' h the Plat, he shall m his request to the Harbor Commission giving a copy thereof to the applic t as to whether o of the application seeks to exercise a preference right to land which is describe n the Plat d complies with it in respect to area and boundary locations. 11.15.200 Recommended aA*roval by The Kenai Adv' ory Harbor Commission shal view all applications for tidelands upon the submission oft City Engineer's report. The Commi ion may conduct public hearings to verify the validi of the applicant's claim and request addih al evidence by way of affidavits and the like i order to come to recommend said claim for appr al by the City Council notifying plicant thereof by mail sent to the address stated on his plication. The Commission may pr 'de a check -off list to aid it in considering applications. The 'ty Council shall consider for proval the claim of the applicant within the time limitations and wi the right of appeal en pursuant to KMC 11.15.240. (Ord. 455) of approved applications by Clerk and notice to public. All application turned to the Clerk approved by the City Engineer, and appraised by the Assessor if required, sha processed by the Clerk in the following manner: (a) The Clerk shall ascertain if the depe it made by the applicant is sufficient to pay all known and estimated costs of survey, apprai -a , sfer�osit�d and purchase, if of Class III and if not, to advise the applicant that the reminder due shall be with the Clerk before further processing. (b) If or when the deposit is sufficient to pay all such costs, the C e hall cause to be published once a week for four weeks, in a newspaper of general circulation ' the City, the following: Page 42 of 272 (I) Notice of the names of the applicant(s), the Block and Lot numbers of theme pr erty claimed according to Plat designations; (2) The preference right claimed; (3) The improvements made; (4) The length of time (including the dates) the applicant occupied the land; and (c) If Class III its appraised value, and that the City will issue to the applicant(s) its Deed therefor within thirty (30) days after the last date of publication, provided that before date of last publication no adverse application or claim has been filed with the City. (d) During said period of publication, the applications thereof shall be returned to the City Engineer who, at the end of said period of publication, shall note on the application whether or not any adverse claims have been filed for the land in question. (e) If adverse claims have been filed, the applications shall be further processed for hearing. If adverse claims have been filed, the respective applications shall be returned to the Clerk. Ord. 455) 11.15.220 Deeds— Permanent register The Clerk shall then cause to be prepared a Quit -Claim deed conveying such land to the applicant(s) that the City has and transmit the Quit -Claim Deed to the Manager for execution. Notice shall then be sent to the applicant to take delivery of said Deed at the office of the Clerk, who shall deliver the same to the applicant -if all requirements have been met and all costs, including purchase price, if required, have been paid. Duplicate originals of all executed Deeds shall be kept in the of tce of the Clerk in a permanent register entitled "Kenai Tidelands Deeds" with permanent alphabetical index of grantees. (Ord. 455) 13.15.230 Special proceedings for disputed claims. �� The Commission shall sit as a quasi adjudicatory body to set dy'spa es 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 withouf delay the respective basis of the conflicting claims. Upon the - sub "mission of each dispute, the Commission shall prepare a short summary on the-conflicting claims and the evidence submitted in support thergof together with their written findings of fact, and conclusions of law. (Ord. 455) Page 43 of 272 5.240 Proceedings for determination by Council of all disputes. Upon reCEi f the working files in all cases of disputes, and the summar Hearings Officer, together copies of notices of hearings served upon- orinailed to all parties to the dispute, the Council shall set edispute of Hearing and determination, and cause notice to be served on all parties. Upon the Council ha_v`nigh d the dispute it shall enter its ruling thereon as quickly as possible, but not later than ten (10) a fter the matter is submitted. Aggrieved persons shall have the right of appeal to the Superior court, withi thttL 'rty (30) days after the ruling of the Council is rendered. (Ord. 455) Determination upon stipulation of facts. Wherever,. possible, to reach agreement of the parties at hearings before the Commission, a stipulation of facts s� hill-be-repared and agreed upon by the parties. Where this is done, the Commission shall prepare and aftaeh-itssonclusions of law and submit the file to the City Engineer to determine if the City's interests ected by the stipulation, or if a- bou—naary change is required and no third party or City interests ar -aff cted adversely by the proposed change in boundaries of lots shown on the Plat, -upon-approval ofthe- Council the Plat shall be directed to be changed. Should it be.detetfmined by the City Engineer thafthie sti ulation adversely affects the interest -of the City or those of third parties, the dispute shall be ed to the Commission for further proceedings upon notice given. (Ord. 455) 145 0 Rejection of protests other than by applicant. No objections will be received to proposed issuance by Deed by the City on publication of notice thereof, nor will any person be permitted to appear and be heard at any hearing of a dispute before the 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 wh66-may_have personal _snowier concerning the verification of claims. (Ord. 455) - ^A7.k.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 Finau- 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, Page 44 of 272 \(2T Transfer Costs - to administrative costs as deeds are issued. (3) Appraisal Es s to administrative costs as earned, or as credit to q laisad c tso incurred. i (b) Purchase Costs of Class II Lands —s a car dited to a separate account in the General Fund to pay for improvements in tidelandsas onsisting of fill, street, sidewalk, and sewer improvements. \ (Ord� of preference rights. Any occupant, owner, or 61der-of prefer applied to the City for title thereto as heremii N applications to exercise preference rights will be ordinance, by a properly completed applicaticii c rights as herein defined, -who h 1, on or b foretwo (2) years after the date ept�d fo filing by the City under this filed with the Clerk and accompanied by the required deposit, shall have forfeited his right to assert this preference ' lit and acquire title to tidelands subject theret .f� the City; and such tidelands and contiguous merged lands subject to such ed preference rights shall thereafter be free and clear of all cun�s do preference -rights and the City shall have no obligation to convey the same to any pers 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. (Ord. 455) 11.15.290 Forms. The Clerk shall cause to be printed application forms and other forms for use in processi the same in substantially the following form: (a) .1% APPLICATION FOR TIDELAND PREFERENCE RIGHTS Name Application No. Page 45 of 272 Address Post Office Mark X to designate nature\of Preference Right Claimed: Class I Class II Class III Does the Tideland Plat 272 correctly show the lat4 applied for: Yes _ No If Tideland Plat does not correctly show land applied for, describe t by metes and bounds and attached plat of land applied for (use attachment if more space is reired). All claimed improvements were first constructed and used (1) before Septemkler 7, 1957? (2) Before September 7, 1957 and January 3, 1969? (3) After January 3, 1959? Page 46 of 272 My part of your claim based on improvements and/or fill constructed or placed after January 3959? Yes No . If answer is "yes," describe area improved after January 3, 1959 (use attachment if mo\sp a i s 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 reaso known to you why your claim does not correspond with the Plat. (Use attachment if more spat is required.) I offer Cash Money Order Cashier's Check in the amount of $ as deposit for th 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 $ service notice is Page 47 of 272 and 7 ued.) $ $ To Deposit (Does not include purchase price of land in Class II Applications) Deposit eceived by City By: Date of App 'cation: Date Applicatio Received by City: Time Filed: \ CERTIFICATION I, , the above -named applicant, or its agent, hereby certifies that all of the statements made in the applicati�p and incorporated attachments, if any, are true and correct. Print Name(s) Signature(s) \ (b) ASSESSOR'S APPRAISAL Page 48 of 272 The undersigned appraiser(s) do hereby certify that he has duly appraised the tide and /or submerged land described in the attached Application No. of without including in the hereinafter stated value any value for valuable improvements constr%ted or placed hereon prior to January 3, 1959, at the fair market value. Tideland \ sq.ft. at $ DATED, at Kenai, Aha§ska, this Signed: (c) WAIVER OF CLASS II PREFERENCE per sq. ft., $ day of 19 (ATTACH TO EACH CLASS I APPLICATION) I, , the applicant, or his authorized agent, iA 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 enuled by reason of the provisions of Public Law 85 -303. DATED, at Kenai, Alaska, this day of '19 >\ (Print Name) Page 49 of 272 CITY OF KENAI, ALASKA TIDELAND QUIT -CLAIM DEED This deed, made in duplicate this day of 19 , by and between the City of Kenai, Alaska Prantor, and , Grantee(s). WITNESSETH: That the said grantor, for and in consideration of the sum of One and No 100 /ths ($1.00) Dollars and other good and valuable consideration, tb\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, wi�the right of survivorship (strike if grantees are not husband and wife), and to his (their) heirs a assigns (strike if Grantee a corporation) and to its successors and assigns (strike if Grante not a corporation), all such interest as the Grantor has, if any, in the following described lot, iece, parcel and tract of tideland and contiguous submerged land situated within the corpo to limits of the City of Kenai, Alaska, and more particularly described as follows, to -wit: All of Lot , Block , according to the official Tidelands,Subdivision Plat of the City of Kenai, Alaska. Page 50 of 272 Together with all and singular the tenements, hereditaments and appurtenances thereunto ng or in anywise appertaining. To ave and to hold the same unto the said Grantee(s), his or their heirs and assigns, (or) to its successors and assigns, forever. IN WITNESS""EREOF, the Grantor has caused this Deed to be executed the day and year hereinabove first itten. CORPORATE SEAL qTY OF KENAI, ALASKA By: (Its Manager) ATTEST: Clerk (Ord. 455) Page 51 of 272 Chapter 11.20 LEASING OF TIDELANDS 11.20.010 Policy. The City, in order to make sites available for beneficial industries, may lease City -owned tidelands to persons who agree to operate a beneficial industry upon the terms and conditions the Council considers advantageous to the City. (Ord. 532) 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, >erthe n en 11.20.030 Qualifications of applicants. An applicant for a lease is qualified if the applicant: (a) Is an individual at least nineteen (19) years of age or over; or (b) is a group, association, or corporation which is authorized to conduct business under the laws of Alaska. (Ord. 532) prior to Before accep ' applications to lea tidelands, the ai involved shall hai a first class ed for leasing by e City Council with a approval of th Tanning and Har \or, Comm sions, and their ava bility advertised in ewspaper of g 1 circulation once eac week for two (2) suc ssive weeks not les an thirty (30) s prior to for the clos g of the acceptance o pplications, and tha 11 applications a available fo. inspection at e City Hall offices. ( s. 532, 1802 -98) 11.20.050 Applications. C. L t�� "'l' (a) All applications for lease of tidelands shall be filed with the Cler�ol a forms provided by — #cim-01'itcnand available at City Hall which shall upon execution of the lease become part of the lease document. Only forms completed in Rill and accompanied by a filing fee as set forth in the Page 52 of 272 City's schedule of fees adopted by the City Council will be accepted for filing. Filing fees are not refundable. (b) With every application, the applicant shall submit a development plan showing and stating: (1) The purpose of the proposed lease; (2) The use, value, and nature of improvements to be constructed; (3) The type of construction; (4) Dates construction is estimated to commence and be completed; (5) ether in ed use com�ifes with the zoning finance and co rehensi�an /ofe C / (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 ormance of five pe nt (5 %) of th ect s estimate (whr nd sha of exce y thousan lars ($50,0 . )), payable t City. (Ords. 532, 2528 -2011) 11.20.060 Rights prior to leasing. Neither the filing of an application for a lease nor the holding of a public hearing thereon as provided below, shall give the applicant a right to a lease or to the use of the land applied for. Any use not authorized by a lease shall constitute a trespass against the City. (Ord. 532) 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) rbor Co ssion. All le applica 'ons shall viewe y the H or Cc issi If the C ission a r considerin > he lease plicatio etermin at a pub ' heazin s s orth in the ection belo that any one ease /bv the it interest f the Ci of Ke ', the C ission n make a reco mendae Council f applicar along th a odifications r conditions comrne Cotnmissi C) City Council. The City Council shall make the final determination of the selection of the applicant based upon the Commission's recommendation and approve or reject the choice of application made. (Ords. 532, 1802 -98) Page 53 of 272 11.20.080 Public notice— Public hearing. Notice of the lease application shall be published in a newspaper of general circulation within the City not less than ten (10) or more than thirty (30) days prior to the date of public hearing. The notice must contain the name of the applicant, a brief description of the land, proposed use, term, and a declaration that the Commission will consider the lease to the applicant on the basis of the applicant's agreement to operate a beneficial industry upon the terms and conditions as set forth in its application which is available for public inspection at the City Hall offices. The notice shall state the date upon which public hearing will be held before the Commission for consideration of the application. (Ord. 532) 11.20.090 Selection of applicant. After the hearing provided in KMC 11.20.080 above, the Commission may make its recommendation of the applicant to the City Council if in the Commission's opinion, on the basis of all the testimony presented, the award of the prospective lease will be advantageous to the City and in the best interests of the public welfare, health, and safety. In the alternative, the �r Commission may elect to make no recommendation for any applicant giving its reasons therefor. --Ihe-8u rssron ma nnpos additional conditions upon the applicant 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. (Ord, 532) 11.20.100 Appeal. Any person disagreeing with the decision of the Council may appeal the decision by filing suit in the Superior Court, Third Judicial District at Kenai, within ten (10) days from the date of the posting of Council's decision. (Ord. 532) 11.20.110 Appraisal and survey of leased lands. The applicant will furnish a survey and appraisal of the land in question prior to leasing. Any resurveying or re- platting required will be the applicant's responsibility and expense. (Ords. 532, 1282 -88) 11.20.120 The lease document— Terms. Leases may be issued for a term of not less than two (2) years nor more than nicely- aiae. years. The applicant shall state in his or her appli- Page 54 of 272 cation the term desired. In determining whether to grant a lease for the requested term, the Council shall consider the nature, extent, and cost of the improvements which the applicant agrees to construct thereon as a condition of the lease the time required to amortize the proposed investment, the value of the applicant's pro- posed 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.,Wyears. (Ord. 532) p4 11.20.130 Appraisal. i No land shall be leased, or a renewal lease issued, unless the same has been appraised within al ix mont riod prior to the date fixed for beginning of the term of the lease or renewal lease. No ]an s a e 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. (Ord. 532) 11.20.140 Review. No leased land maybe changed in use, nor may any renewal lease be issued until the proposed use or renewal has been reviewed by the Planning Commission and approved by the Council. (Ord. 532) 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. Page 55 of 272 (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 $200, then the lessee shall have the option of making payments on a monthly or quarterly basis. (Ord. 532) 11.20.160 Principles and policy of lease rates. (a) To insure a fair return, all leases for a period in excess of five (5) years shall include a redetermination clause as of the fifth anniversary of each lease, normally set for the first of July of that fifth year. In pursuing a fair return, all lands for lease shall be appraised prior to lease and again prior to redetermination. Therefore, lease rates shall be based on: b (1) Fair market value of the land, including an appropriate consideration of facilities d-V vW and services available (public water, public sewer, storm sewers, purother public utilities) as determined by a qualified independent appraiser, considering the best use of the specific Idnd. (2) 9 The actual rate of return determined to be a fair return to the City shall be set at e/�)-.six-percent %) of fair market value. The appraisal shall not include structural improvements made to the land or improvements made by way of gravel or other approved fill placed on the land,40rd.11631 -9$) �t IA ('e cf (b) Rea ' ing that investors, elopers, and er potential 1 ees nee reasons assuranc of stability in futm ease rates, the determinatio ause of future es �lfall includ the following tang ge: Page 56 of 272 .,1 At each fiv ear interval, fair market val a shall be determt by qua'ifi , independ appraise a redetermi d lease rate ( ual rent) under thi provision, s 11 be limit to a fifty p cent (50 %) in ase in the prior ase rate until the rrtieth -year niversary the lease afte which the fifty cent (50 %) ca provision shall n Longer appl and the leas ate shal e r etermined every ve years on th asis of fair mar lydt evaluation s determine m KM 1.20.080. / (c) Xear ases idelands existingate time of Oeenactment of chapter shallWave a thirri determ ined from�date from with the lease originall nterdd into. (d) Failure by the City to insist upon renegotiation at the end of any given five -year period shall not constitute a waiver of the right of the City to insist upon renegotiation in any subsequent year, provided that neither the City nor the lessee shall have the right to insist upon renegotiation until five years shall have elapsed from the date the rental was last adjusted. (Ord. 532) 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. (Ord. 532) 11.20.180 Lease utilization. Leased lands shall be utilized for purposes within the scope of the application, the terms of the lease and in conformity with the ordinances of the City and Borough, and in substantial conformity with the comprehensive plan. Utilization or development for other than the allowed uses shall constitute a violation of the lease and subject the lease to cancellation at any time. Failure to substantially complete the development plan of the land within the specified time from the date of execution of the lease, consistent with the proposed use and terms of the lease, shall constitute grounds for cancellation. The lease shall set forth in detail with appropriate plans and specifications the improvements to be made within the time period described above. (Ord. 532) 11.20.190 Subleasing. Leases may provide for subleasing a portion of the leased land without prior Council approval. Subleases shall be in writing and be subject to the terms and conditions of the original Page 57 of 272 lease. No approval of the City shall be given to the sublease of property until the lessee has substantially complied with the development plan. (Ord. 532) 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. (Ord. 532) 11.20.210 Modification. No lease may be modified orally or in any manner other than by an agreement in writing, signed by all parties in interest or their successors in interest. Any such modification shall require Council approval. 11.20.220 Cancellation — Forfeiture (a) Leases in good standing may be canceled in whole, or in part, at any time upon mutual written agreement by lessee and the City Council. (b) Any lease used for an unlawful purpose may be canceled. (c) If the lessee shall default in the performance or observance of any of the lease terms, covenants, or stipulations thereto, or of the regulations now or hereafter in force, and should said default continue for thirty (30) calendar days after service of written notice by the City without remedy by lessee of the conditions warranting default, the City shall subject lessee to appropriate legal action, including, but not limited to, forfeiture of the lease. No improvements may be removed by lessee or other person during any time the lessee is in default. This provision shall not be construed to prohibit the City from taking any appropriate legal action, including, but limited to, forfeiture of the lease, immediately upon the occurrence of a default. (Ord. 532) 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 Page 58 of 272 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. (Ord. 532) 11.20.240 Notice or demand. Any notice or demand which under the terms of a lease or under any statute must be given or made by the parties thereto, shall be in writing and be given or made by registered or certified mail, addressed to the other party at the address of record. However, either party may designate in writing such new or other address to which such notice or demand shall thereafter be so given, made or mailed. A notice given hereunder shall be deemed delivered when deposited in a U.S. general or branch post office, enclosed in a registered or certified mail envelope, addressed as hereinabove provided. (Ord. 532) 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 ]eased premises, and for no other purpose, a lessee, after giving written notice thereof to the City, may encumber by mortgage, deed of trust, assignment, or other appropriate instrument, the lessee's interest in the leased premises and in and to the lease, provided such encumbrance pertains only to such leasehold interest and does not pertain to or create any interest in the City's title to the leased premises. If such mortgage, deed of trust, or assignment, shall be held by a bank or other established lending or financial institution (which terms shall include an established insurance company and qualified pension or profit- sharing trust), and such institution shall acquire the lessee's interest in such lease as a result of a sale under said encumbrance pursuant to a foreclosure or other remedy of the secured party, or through any transfer in lieu of foreclosure, or through settlement of or arising out of any pending or contemplated foreclosure action, such ]ending institution shall have the privilege of transferring its interest in such lease to a nominee or a wholly -owned subsidiary corporation with the prior consent of the City, provided, however, such transferee shall assume all of the covenants and conditions required to be performed by the lessee, whereupon such lending institution shall be relieved of any further liability under such lease from and after such transfer. Such lending institute for the nominee or wholly -owned subsidiary corporation to which it may have transferred such lease, or any other lending institution which may at any time acquire such lease, shall be relieved of any further liability under such lease from and after a transfer of such lease. (b) A leasehold mortgagee, beneficiary of a deed of trust, or security assignee, shall have and be subrogated to any and all rights of the lessee with respect to the curing of any default hereunder by lessee. (c) If the holder of any such mortgage, beneficiary of any such deed of trust, or the security assignee shall give the City before any default shall have occurred in the lease, a written notice containing the name and post office address of such holder, the City shall thereafter give to such Page 59 of 272 holder a copy of each notice of default by the lessee at the same time as any notice of default shall be given by the City to the lessee, and the City will not thereafter accept any surrender or enter into any modification of this lease without the prior written consent of the holder of any first mortgage, beneficial interest under a first deed of trust, or security assignee, in this lease. (d) If, by reason of any default of the lessee, either this lease or any extension thereof shall be terminated at the election of the City prior to the stated expiration therefor, the City will enter into a new lease with the leasehold mortgagee for the remainder of the tern, effective as of the date of such termination, at the rent and additional rent, and on the terms herein contained, subject to the following conditions: (1) Such mortgagee, beneficiary, or security assignee, shall make written request to the City for such new lease within twenty days after the date of such termination and such written request shall be accompanied by a payment to the City of all sums then due to the City under the lease. (2) Such mortgagee, beneficiary, or security assignee, shall pay to the City, at the time of the execution and delivery of such new lease, any and all sums due thereunder in addition to those which would at the time of the execution and delivery thereof be due under this lease; but for such termination and in addition thereto, any reasonable expenses, including legal and attorney's fees, to which the City shall have been subjected by reason of such default. (3) Such mortgagee, beneficiary, or security assignee shall, on or before the execution and delivery of such new lease, perform all the other conditions required to be performed by the lessee to the extent that the lessee shall have failed to perform such conditions. (e) if a lending institution or its nominee or wholly -owned subsidiary corporation shall hold a mortgage, deed of trust, or similar security interest in and to this lease and shall thereafter acquire a leasehold 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. (Ord. 532) 11.20.260 Entry and re -entry. In the event that the lease should be terminated as hereinbefore provided by summary proceedings or otherwise, or in the event that the demised lands or any part thereof should be Page 60 of 272 abandoned by the lessee during the said term, the lessor or its agents, servants, or representatives may, immediately or any time thereafter, re -enter and resume possession of said lands or such part thereof, and remove all persons and property therefrom, either summary proceedings or by a suitable action or proceeding at law without being liable for any damages therefor. No re -entry by the lessor shall be deemed an acceptance of a surrender of the lease. (Ord. 532) 11.20.270 Re- lease. ` . V\ In the even that a lease should be erminated as herein provided, or by summary proceedings, or otherwise, th n may offer said lands for lease or other appropriate disposals rovisions f o 532) 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. (Ord. 532) 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. (Ord. 532) 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. (Ord. 532) 11.20.310 Lease subordinate to financing requirements. Lessee agrees that City may modify the lease to meet revised requirements for Federal or State grants, or to conform to the requirements of any revenue bond covenant. However, the modification shall not act to reduce the rights or privileges granted the lessee by this lease, nor act to cause the lessee financial loss. (Ord. 532) Page 61 of 272 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 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 tern 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. (Ord. 532) 11.20.330 Surrender on termination. (a) Lessee shall, on the last day of the term of this lease or upon any earlier termination of this lease, surrender and deliver up the premises into the possession and use of City without fraud or delay in good order, condition, and repair, except for reasonable wear and tear since the last necessary repair, replacement, restoration, or renewal, free and clear of all lettings and occupancies unless expressly permitted by City in writing, and free and clear of all liens and encumbrances other than those created by City for loans to the City. (b) Upon the end of the term of this lease or any earlier termination thereof, title to the buildings, improvements, and building equipment shall automatically vest in the City without requirement of any deed, conveyance, or bill of sale document in confirmation hereof, lessee shall execute, acknowledge, and deliver the same and shall pay any charge, tax, and fee asserted or imposed by any and all governmental units in connection therewith. (Ord. 532) 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. (Ord. 532) Page 62 of 272 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. (Ord. 532) 11.20.360 Rules. (a) The lessee shall observe, obey, and comply with all applicable rules, etc., of the State or Federal governments. (b) City reserves the right to adopt, amend, and enforce reasonable rules and regulations governing the demised premises and the public areas and facilities used in connection therewith. Except in cases of emergency, no rule or regulation hereafter adopted or amended by the City shall become applicable unless it has been given thirty days notice of adoption or amendment thereof. (c) Lessee, in the conduct of its operations on the demised premises, shall observe, obey, and comply with any and all applicable rules, regulations, laws, ordinances, or orders of any governmental authority, federal or state, lawfully exercising authority over lessee or lessee's conduct of its business. (d) City shall not be liable to lessee for any diminution or deprivation of possession, or of its rights hereunder, on account of the exercise of any such right or authority as in this section provided, nor shall 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. (Ord. 532) 11.20.370 Aircraft operations protected. (a) The City shall reserve to itself its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface and all improvements approved by the City of the premises conveyed, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now or hereafter used for navigation of or flight in the air, using said airspace of landing at, taking off from, or operating on the Kenai Airport. (When plans for improvements are approved by the City, the City to the extent of those improvements releases the easements here expressed.) Page 63 of 272 (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. (Ord. 532) 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. (Ord. 532) 11.20.390 Lessee to pay taxes. Lessee shall pay all lawful taxes and assessments which, during the term thereof may become a lien upon or which may be levied by the State, Borough, City, or any other tax - levying body, upon any taxable possessory right which lessee may have in or to the reason of its use or occupancy, provided, however, that nothing herein contained shall prevent lessee from contesting as any other land owner any increase in such tax or assessment through procedures outlined in State statutes. (Ord. 532) 11.20.400 No partnership or joint venture created. The City shall not be construed or held to be a partner or joint venturer of lessee in the conduct of business on the demised premises; and it is expressly understood and agreed that the relationship between the parties thereto is, and shall at all times remain that of landlord and tenant. (Ord. 532) 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 Page 64 of 272 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. (Ord. 532) 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 participation, denied the benefits of, or otherwise be subjected to discrimination. (c) The lessee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally- assisted Programs of the Department of Transportation — Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended. (d) In the event facilities are constructed, maintained, or otherwise operated on the said property described in this lease, for a purpose involving the provision of similar services or benefits, the lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally - Assisted Programs of the Department of Transportation — Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. (Ord. 532) 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. (Ord. 532) 11.20.440 Parole modifications. Page 65 of 272 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. (Ord. 532) 11.20,450 Amendment of lease. Notwithstanding anything to the contrary, in order to aid the lessee in the financing of the improvements to be situated herein, the City shall agree that in the event the proposed mortgagee, beneficiary or security assignee under any interim or permanent loan on the security of the leasehold interest of the lessee and the improvements to be situated thereon so requires, the City will make a reasonable effort to amend this lease in order to satisfy such requirements upon the express condition and understanding, however, that such variance in language will not materially prejudice the City's rights thereunder nor be such as to alter in any way the rental obligations of the lessee hereunder nor its obligations to comply with all existing laws and regulations of the City relating to the leasing of airport lands, and to all applicable Federal statutes, rules, and regulations, and all covenants and conditions of the deed by which the City holds title to the land. (Ord. 532) 11.20.460 Compliance with laws. (a) Lessee shall comply with all applicable laws, ordinances, and regulations of public authorities now or hereafter in any manner affecting the leased premises or the sidewalks, alleys, streets, and way adjacent thereto or any buildings, structures, fixtures, and improvements or the use thereof, whether or not any such laws, ordinances, and regulations which may be hereafter enacted involve a change of policy on the part of the governmental body enacting the same. Lessee agrees to hold City financially harmless from the following: (l) 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. (Ord. 532) 11.20.470 Care of premises. Page 66 of 272 Lessee, at its own cost and expense, shall keep the leased premises, all improvements which at any time during the term of this lease maybe situated thereon, and any and all appurtenances thereunto belonging, in good condition and repair, during the entre term of this lease. (Ord. 532) 11.20.480 Lessee's obligation to remove liens. Lessee will not permit any liens including, but not limited to, mechanics', laborers', or material -men's liens obtainable or available under the then existing laws, to stand against the leased premises or improvements for any labor or material furnished to lessee or claimed to have been furnished to lessee or to lessee's agents, contractors, or sublessees, in connection with work of any character performed or claimed to have been performed on said premises or improvements by or at the direction or sufferance of lessee, provided, however, lessee shall have the right to provide a bond as contemplated by Alaska law and contest the validity or amount of any such lien or claimed lien. On final determination of such lien or such claim for lien, lessee will immediately pay any judgment rendered with all proper costs and charges and shall have such lien released or judgment satisfied at lessee's own expense. (Ord. 532) 11.20.490 Condemnation. In the event the leased premises or any part thereof shall be condemned and taken for a public or a quasi- public use, then upon payment of any award or compensation arising from such condemnation, there shall be such division of the proceeds, such abatement in rent payable during the term or any extension of the term hereof, and such other adjustments as the parties may agree upon as being just and equitable under all the circumstances. If the City and lessee are unable to agree within thirty days after such an award has been paid into court, upon what division, annual abatement in rent, and other adjustments are just and equitable, the dispute shall be determined by arbitration provided in KMC 11.20.670 hereof. (Ord. 532) 11.20.500 Protection of subtenants. To protect the position of any subtenant(s) hereafter properly obtaining any interests in the leasehold estate granted lessee hereunder, the City agrees that in the event of the cancellation. termination, expiration, or surrender of this lease (the ground lease), the City will accept the subtenant, its successors and assigns, as its lessee for a period equal to the full elapsed portion of the term of the sublease, including any extensions or renewals thereof not exceeding the term of this lease, upon the same covenants and conditions therein contained, to the extent that said covenants and conditions are not inconsistent with any of the terns and conditions of this lease, provided such subtenant shall make full and complete attormnent 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 Page 67 of 272 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. (Ord. 532) 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. (Ord. 532) 11.20.520 Governing law. The indenture of lease shall be governed in all respects by the laws of the State of Alaska. (Ord. 532) 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: C,V\ r-*r To City: /City Hall —City of Kenai 'P-& � I to F 4 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. Page 68 of 272 (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. (Ord. 532) 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. (Ord. 532) 11.20.550 Inspection. The lessee shall allow authorized representatives of the City to enter the leased land for inspection at any reasonable time. (Ord. 532) 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 11, Division I, Chapters 4, 5, and b 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. (Ord. 532) 11.20.570 Restrictions and reservations. The lease shall contain such restrictions and reservations as are necessary to protect the public interest. (Ord. 532) 11.20.580 Waste and injury to land. Page 69 of 272 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. (Ord. 532, Ord. 1858 -2000) 11.20.590 Warranty. The City does not warrant by its classification or leasing of land that the land is ideally suited for the use authorized under said classification or lease, and no guaranty is given or implied that it shall be profitable to employ land to said use. City bears no responsibility for any water erosion of land. (Ord. 532) 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. (Ord. 532) 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. (Ord. 532) 11.20.620 Insurance —Mold harmless. Lessee shall covenant to save the City harmless from all actions, suits, liabilities, or damages resulting from or arising out of any acts of commission or omission by the lessee, his agents, employees, customers, invitees, or arising from or out of the lessee's occupation, or use of the premises demised, or privileges granted, and to pay all costs connected therewith. In this connection, the lessee shall agree to arrange and pay for all the following: (a) Public liability insurance protecting both the City and /or its agents and the lessee, such insurance to be evidenced by a certificate showing the insurance in force. The amount of such public liability insurance shall have limits not less than those known as $250,000/$500,000 /$100,000. (b) Liquor liability (where applicable). (c) Lessee agrees to carry employer's liability insurance and Workmen's Compensation Insurance, and to furnish a certificate thereof to the City, if applicable. Page 70 of 272 (d) Insurance contracts providing liability insurance and Workmen's Compensation shall provide for not less than thirty days written notice to the City of cancellation or expiration or substantial change in policy conditions and coverage. (e) Lessee agrees that waiver of subrogation against the City shall be requested of lessee's insurer, and shall be provided at no cost to the City. (f) Cross Liability: It is understood and agreed that the insurance afforded by this policy or policies for more than one named insured, shall not operate to increase the limits of the company's liability, but otherwise shall not operate to limit or void the coverage of any one named insured as respects claims against the same named insured or employees of such other named insured. (g) The insurance procured by the lessee as herein required shall be issued in the name of the lessee and the City by a company licensed to do business in the State of Alaska, and shall contain endorsements that: (1) Such insurance may not be canceled or amended with respect to the City without thirty days written notice by registered or certified mail to the City by the insurance company. (2) Lessee shall be solely responsible for payment of premiums and that City shall not be required to pay any premiums for such insurance. (h) The amount of insurance coverage required above may be subject to review for increase at each five -year renegotiation of the lease. C.� (i) Upon review by the t'rnr»issier} 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. (Ord. 532) 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 hamiless 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. (Ord. 532) 11.20.640 Annual report. Page 71 of 272 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. (Ord. 532) 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! 1 5, 1979 of the City of Kenai, adopted pursuant thereto, and the lessee holds lessor harmless for any damages, legal expenses, or compensation necessitated by the resolution or satisfaction of said claims, if any. (Ord. 532) 11.20.660 Subjection to harbor ordinance. All leases are subject to the terns, conditions, and regulations imposed by Title II, Harbor and Harbor Facilities, of the 1979 Kenai Code of ordinances as amended of which this section is part. (Ord. 532) 11.20.670 Arbitration. In the event the City and lessee shall be unable to agree as to any matter provided for in the lease except as to the amount of the five -year rent redetermination amount which is handled pursuant to KMC 11.20.160, such dispute shall be determined by three disinterested arbitrators (unless the parties can agree on one arbitrator). Such arbitration shall be conducted upon request of either the City or the lessee, before three arbitrators (unless the City or the lessee agree to one arbitrator) designated by the American Arbitration Association and in accordance with the rules of such Association. The arbitrators designated and acting under this lease shall have no power to depart from or change any of the provisions thereof. The expense of arbitration proceedings conducted hereunder shall be borne equally by the parties. The proceedings shall take place in Kenai, Alaska unless otherwise agreed upon by the parties. (Ord. 532) 11.20.680 Provisions regulating public use purpose. The City Council realizes that only a limited area of tidelands bordering navigable waters are available within the City of Kenai and which are owned by the City of Kenai. It would be in the public interest to insure that these lands do not pass out of community control at least to the extent that the public would not be deprived of harbor services at reasonable rates in the future. Therefore, areas of City -owned tidelands which are developable for the bona fide public Page 72 of 272 purposes as enumerated below shall be leased only with the following covenants defined to insure public use and access at reasonable rates. (Ord. 532) 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. (Ord. 532) 11.20.700 Public use: defined. (a) Public use shall mean a use limited in part or in whole to the following: (1) In general, the lessee may use the demised premises or part thereof for any of the following purposes only: (i) Public dock facilities. (ii) Maritime commerce. (iii) Transportation. (iv) Fishing. (v) Boat harbor. (vi) Port and waterfront development purposes. (b) Before lessee may conduct any activities which fall under this general criteria, but are not specifically mentioned above, lessee must obtain written consent of the City. (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 such areas while insuring reasonable public access. Reasonable public access includes accommodations made for fishing operations during fishing season. (Ord. 532) Page 73 of 272 11.20.720 Use charges. CA \ Lessee shall make reasonable and no - discriminatory charges to the public for use of any of its facilities. It is expressly recognized th t 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. Th ' shall review all rate structures annually. The lease shall contain an arbitration provision as set forth in KMC 11.20.670 to resolve disputes arising hereunder. (Ord. 532) 11.20.730 Maintenance of dock. Lessee covenants that it will maintain the dock facility in a safe condition and in accordance with applicable state and federal standards. (Ord. 532) 11.20.740 Modifications of existing leases. Leases shall only be modified to that extent deemed to be necessary to protect the public's interest. (Ord. 532) 11.20.750 Unauthorized removal of material prohibited. Any person, firm, or corporation who without written authority from the City removes rock, gravel, or other material from the lands owned by the City without the express consent of the City shall be deemed guilty of a violation. Any criminal action taken against such person shall not preclude the institution of civil proceedings by the City. (Ords. 532, 1858 -2000) 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. (Ord. 532) 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 Page 74 of 272 progress and development of the City, applications for the use thereof may be received and considered by the Commission, providing such applications fully disclose to the City all material facts and plans for the proposed use. Such applications shall be consistent with the comprehensive plan of the City and referred to the City Planning Commission for its recommendations. Disposition of such applications shall be made by the Council after recommendation from the Commission. (Ord. 532) 11.20.780 Penalties. (a) It is unlawful for any person to violate any of the provisions of this chapter and upon conviction thereof shall be fined as provided for violations in KMC 13.05.010. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. (b) In addition to or as an alternative to the above penalty provision, the City may impose a civil penalty in an amount as provided by KMC 13.05.010 per day for the violation of any provision of this chapter and seek injunctive relief for any infraction thereof for which the offending party will be charged for reasonable attorney's fees and costs incurred by the City as awarded by the court. (c) Nothing in this section shall be deemed to restrict the City's exercise of any of its rights pursuant to the lease agreement including those enumerated in KMC 11.20.220 and KMC 11.20.240 hereof. (Ords. 532, 1240) 11.20.790 Tideland leases for shore fisheries. (a) The annual minimum rental rate for tideland leases used primarily for shore fisheries shall be an annual fee as set forth in the City's schedule of fees adopted by the City Council. However, should the State of Alaska set an annual lease rate higher than that established by the City for similar tideland leases for shore fisheries on land owned by the State, the City may amend the annual rental to a rate equal to that charged by the State of Alaska. Any money owed pursuant to KMC 11.20.150 shall be in addition to the annual minimum set forth above. (b) Neither KMC 11.20.160 nor KMC 11.20.620(a) shall apply to tideland leases for shore fisheries. (c) The provisions of KMC 11.20.110 and KMC 11.20.130 requiring appraisals of tideland property shall not apply to leases of tidelands for shore fisheries. However, the survey provisions of KMC 11.20.110 are applicable to shore fishery leases. (Ords. 1632 -95, 2528 -2011) Page 75 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 76 of 272 Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2761 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING THE KENAI MUNICIPAL CODE, TITLE 23, "PERSONNEL REGULATIONS," CHAPTERS 23.05 GENERAL PROVISIONS, 23.10 CATEGORIES OF SERVICE, 23.15 ADMINISTRATION, 23.25 COMPENSATION, 23.30 PERSONNEL POLICIES AND PROCEDURES, 23.35 GENERAL CONDUCT, DISCIPLINE, TERMINATION, AND APPEAL, AND 23.40 BENEFITS TO UPDATE PERSONNEL REGULATIONS WITH STATE AND FEDERAL LAW, AND MAKE TECHNICAL CHANGES, AND CORRECTIONS, WHEREAS, pursuant to KMC 23.15.010 the personnel program is administered by the City Manager and the City Manager recommends revisions and amendments to the regulations as deemed necessary; and, WHEREAS, in the process of updating the employee handbook, Administration conducted a review of the City's personnel regulations resulting in recommendations for amendments updating the City's Code to mirror State and Federal law terminology and, technical changes, and corrections to the personnel regulations; and, WHEREAS, the City Manager recommends amending KMC 23.05.0 10 and 23.30.020 (b) to include protected classes; 23.05.070 (a), 23.30.050 (e), and 23.40.030 (e) to amend the definition of "exempt;" 23.35.020 (b) (3) to remove the requirement employees provide medical information, and make other technical changes and corrections. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, as follows: Section 1. Form: That this is a Code ordinance. Section 2. Amendment of Section 23.05.010 EmTAIoyment - Oualifications, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.05.010 Employment - Qualifications, is hereby amended as follows: Employment in City Government shall be based on qualifications, free of personal and political considerations, with equal opportunity for all with no [UNLAWFUL RESTRICTIONS AS TO RACE, COLOR, CREED, RELIGIOUS AFFILIATIONS, AGE OR SEX] discrimination in employment on the basis of race, color, religion, sex, national origin, age, disability, marital status, changes in marital status, pregnancy, parenthood, or genetic information. It is a policy of the City to not discriminate against the qualified disabled in employment. New Text Underlined; [DELETED TEXT BRACKETED[ Page 77 of 272 Ordinance No. 2761 -2014 Page 2 of 10 Section 3. Amendment of Section 23.05.070 (a) and (r) Definitions, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.05.070 (a) and (r) Definitions, is hereby amended as follows: (a) [EXEMPT SERVICE] Unclassified Service: [EXEMPT SERVICE] the unclassified service shall include all elected officials, City Manager, City Attorney, City Clerk, and temporary employees. Members of boards, committees, commissions, volunteers, contractors, and consultants are not employees. (r) Grievance: An employee's oral or written expression of dissatisfaction with some aspect of his or her employment, a management decision affecting hive or her, or an alleged violation of his or her rights for the purpose of attempting to gain an adjustment of said cause of dissatisfaction. Section 4. Amendment of Section 23.10.010 General, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.10.010 General, is hereby amended as follows: 23.10.010 General. All offices and positions of the City are divided into classified service and [EXEMPT] unclassified service. All the provisions of this chapter shall apply to positions in the classified service. The provisions of this chapter shall apply to positions in the exempt service as indicated in KMC 23.10.020. Section S. Amendment of Section 23.10.020 (a) and (b) Exempt service, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.10.020 (a) and (b) Exempt service, is hereby amended as follows: 23.10.020 [EXEMPT] Unclassified service. The [EXEMPT] unclassified service shall include the following: (a) Mayor and Council Members. Only the following provisions shall apply: KMC 23.30.110(b) and (d) and 23.40.080 (as applicable), 23.40. 100 and 23.40.110. (b) Members of Boards or Commissions. Only the following provisions shall apply to such officials: KMC 23.30.110(b) and (d). Only the following provisions shall apply Section 6. Amendment of Section 23.10.030 Classified service, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.10.030 Classified service, is hereby amended as follows: 23.10.030 Classified service. The classified service shall include all other positions in the City service. (a) All positions established by the annual budget or compensation guide adopted by resolution of the City Council. Any new position created at the start or during the budget year and either ratified or affirmed by the City Council. (b) The following supervisory and professional positions of the classified service are considered to be exempt from the provisions of the Fair Labor Standards Act due to the nature of the position: Airport Manager New Tex[ Undeduied; [DELETED TEXT BRACKETED) Page 78 of 272 Ordinance No. 2761 -2014 Page 3 of 10 Finance Director Fire Chief [LIBRARIAN] Library Director Parks and Recreation Director Police Chief Police Lieutenant Public Works Director Public Works Manager Senior Center Director. Section 7. Amendment of Section 23.15.010 Administration by City Mangeer, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.15.0 10 Administration by City Manager, is hereby amended as follows: 23.15.010 Administration by City Manager. The personnel program established by this ordinance shall be administered by the City Manager. He or she shall administer all provisions of this ordinance and of the personnel rules. He or she shall prepare and recommend revisions and amendments to this ordinance as deemed necessary. The City Manager shall draft such rules as may be necessary to carry out the provisions of this ordinance. Such rules shall be uniform application except as specifically stated. Additionally, each department of the City is encouraged to establish departmental rules, regulations, and procedures subject to the approval of the City Manager. Such rules, regulations, and procedures shall be in harmony with the general rules of the City Manager and provisions of this ordinance, and shall be binding on the employees. Section S. Amendment of Section 23.25.060 Ibl Overtime, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.25.060 (b) Overtime, is hereby amended as follows: 23.25.060 Overtime. (b) When employees are required to work overtime, department heads shall authorize compensatory time off or overtime pay. Determination to grant overtime pay or compensatory time off shall rest with the department head, City Manager, or acting department heads, who shall give due consideration to desires of the employee, to budgetary controls, and to the provisions of subsection (c) of this section. Rates for overtime (in addition to regular compensation based upon compensation schedules) shall be based upon the employee's regular rate of pay as follows: (1) General government employees (excluding sewer treatment plant and temporary employees): Regular Pay Times Regular Work 1 1/2 Saturday 1 1/2 Sunday 2 Holiday 2 1/2 New Text Underlined; DELETED TEXT BRACKETEDI Page 79 of 272 Ordinance No. 2761 -2014 Page 4 of 10 (2) Temporary employees: Regular Pay Times Regular Work 11/2 Saturday 1 1/2 Sunday 1 1/2 Holiday 1 '/a (3) General government and temporary employees must be in a paid status for forty (40) hours in the work week before overtime compensation will be paid. (4) Police, communications and sewer treatment plant employees: Regular Pay Times Regular Work Day 1 1/2 Saturday 1 1/2 Sunday 2 [HOLIDAY] (5) Employees engaged in fire protection activities: Regular Pay Times Regular Work 1 1/2 Saturday 1 1/2 Sunday 1 1/2 [HOLIDAY] (6) Police, communications, employees engaged in fire protection activities, and sewer treatment plant employees must be in a paid status for their normal work week, as follows, before overtime compensation will be paid: Police 40 hours Employees engaged in fire protection As required by the activities Fair Labor Standards Act Communications 40 hours Sewer treatment plant 40 hours However, overtime may be paid as required by the Fair Labor Standards Act, recognizing that an employee's salary is compensation for the normal shifts specified in this Title. Section 9. Amendment of Section 23.25.065(d) Shift differential nay, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.25.065(d) Shift differential pay, is hereby amended as follows: 23.25.065 Shift differential pay. (d) Eligible employees shall receive shift [DIFFERERENTIAL] differenti al pay for each eligible shift worked. New Text Underlined; [DELETED TEXT BRACKETED] Page 80 of 272 Ordinance No. 2761 -2014 Page 5 of 10 Section 10. Amendment of Section 23.30.0 10 (e) General, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.30.0 10 (e) General, is hereby amended as follows: 23.30.010 General. (e) Employment of qualified [, HANDICAPPED PERSONS] individuals with a disability shall be encouraged. Section 11. Amene Code: That Kenai amended as follows: (b) Appointment, is hereby 23.30.020 Appointment. (b) No question in any test or in any application form or by any appointing authority shall be so framed as to attempt to elicit information concerning race, color, [ANCESTRY,] religion, sex, national origin, age, disability, marital status, changes marital status, pregnancy, parenthood, genetic information or political [OR RELIGIOUS] affiliation for the purposes of discriminating. Section 12. Amendment of Section 23.30.050(a) and (e) Business hours and hours of work, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.30.050 (a) and (e) Business hours and hours of work, is hereby amended as follows: 23.30.050 Business hours and hours of work. (a) The hours during which City offices and departments shall normally be open for business shall be 8:00 a.m. to 5:00 p.m., Public Works departments -8:00 a.m. to 4:30 p.m., except Saturdays and Sundays, holidays, and further excepting Police and Fire which shall be open for business twenty -four (24) hours a day. The Library, [RECREATION CENTER,] Senior Center, and Animal Control operations shall be open for business as authorized by the City Manager. (e) Supervisory and professional positions of the classified and [EXEMPT] unclassified services considered to be exempt from the provisions of the Fair Labor Standards Act shall not be bound to a work week of any set number of hours. The individuals in these positions are expected to work as many hours as the responsibilities of their positions require. These individuals are expected, however, to substantially conform to the normal work week as described in subsection (d). Section 13. Amendment of Section 23.35.020 Causes for warning, suspension, or dismissal. of the Kenai Municipal Code: That Kenai Municipal Code Section 23.35.020 Causes for warning, suspension, or dismissal, is hereby amended as follows: 23.35.020 Causes for warning, suspension, or dismissal. (a) When an employee's conduct falls below desirable standards, he or she may be subject to disciplinary action. (b) General reasons for which an employee may be disciplined include: (1) Drinking intoxicating beverages on the job or arriving on the job under the influence of intoxicating beverages or such drugs. (2) Illegal possession of any controlled substance on the job. New Text Underlined; )DELETED TEXT BRACKETED) Page 81 of 272 Ordinance No. 2761 -2014 Page 6 of 10 (3) Ingestion, either on the job or within eight hours before reporting to work, of any controlled or other dangerous substance, unless prescribed by a licensed medical practitioner. Employees shall notify their immediate supervisor when required to use prescription medicine that they have been informed has the potential to impair job performance. [THE EMPLOYEE SHALL ADVISE THE SUPERVISOR OF THE KNOWN SIDE EFFECTS OF SUCH MEDICATION, AS WELL AS THE PRESCRIBED PERIOD OF USE.] No employee shall ingest any prescribed or over - the - counter medication in amounts beyond the recommended dosage. (4) Violation of a lawful duty. (5) Insubordination. (6) Breach of discipline. (7) Being absent from work without first notifying and securing permission from the employee's supervisors. (8) Being habitually absent or tardy for any reason. (9) Misconduct. (10) Conviction of a felony or a misdemeanor involving moral turpitude. (11) Using religious, political, or fraternal influence. (12) Accepting fees, gifts, or other valuable things in the return for performance of the employee's official duties for the City. (13) Inability to perform the assigned job. (14) Political activity as restricted by the Charter. (Ords. 336, 537, 1347 -89) (15) Failure to follow the City's alcohol and controlled substance abuse and testing policy as set forth in the City of Kenai Employee Handbook. (Ord. 1670 -95) (16) Knowingly or negligently failing to follow federal and state occupational safety and health regulations and City law and policy regarding the same. (Ord. 1670 -95) Section 14. Amendment of Section 23.35.034 Procedures on appeal, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.35.034 Procedures on appeal, is hereby amended as follows: 23.35.034 Procedures on appeal. (a) Within five (5) working days after the filing of a written appeal with the City Clerk, the City Manager or the designee of the City Manager shall file with the City Clerk an answer in writing to the appeal setting forth any facts which might be in dispute in the appeal, and setting forth the reasons why the actions are believed to be justified and the City Manager or his or her designee shall serve a copy of the answer on the employee in person or by ordinary mail to employee's home address. (b) Promptly after the appeal is filed, the City Clerk shall deliver a copy of the appeal to the City Manager. (c) The members of the Arbitration Panel shall be listed in alphabetical order, and will be called in rotation. Any member passed over because of illness or absence, or disqualified by an appealing employee or the administration, shall be treated as though he or she has served on the Personnel Board and will not be called again until his or her name comes up in the normal rotation. As soon as an appeal is filed with the City Clerk, the City Clerk will make contact and determine the New Teat Underlined; ]DELETED TEXT BRACKETED] Page 82 of 272 Ordinance No. 2761 -2014 Page 7 of 10 next five (5) members of the panel due and available for service during the following three (3) weeks, and shall notify the appealing employee of the five (5) members due for service. The appealing employee will advise the City Clerk within two (2) working days which member the employee wishes deleted from the list, and the City Clerk will then notify the City Manager or his or her designee of the four remaining members due for service. The City Manager or his or her designee will advise the Clerk within one (1) working day of the name of the member the administration wishes to delete from the list. Thereafter, the Clerk will notify the two (2) members of their disqualification and the other three members as to being chosen for service and will determine a date, time, and place when all three members may assemble for hearing, and will then notify the appealing employee and the City Manager or his or her designee of such date, time, and place of hearing. (d) At the time of hearing, the employee shall present any written evidence, oral testimony, or witnesses that he or she desires, and thereafter the City Manager or his or her designee shall present evidence, oral testimony, or witnesses as he or she deems fit, following which the parties may continue to present rebuttal testimony alternately until neither side has anything further to present. (e) After completion of presentation of testimony, the appealing employee may make any statement he or she desires by way of argument, which may be answered by the City Manager or his or her designee, and the appealing employee shall then have a final closing argument if he or she so desires. (f) If any member of the Personnel Board feels it necessary or desirable, he or she may call additional witnesses or call for presentation of additional testimony, adjourning the hearing to a future time for such presentation if necessary. (g) After presentation of all evidence and arguments, the Personnel Board shall go into executive session to make a determination of the appeal, and the Personnel Board shall make written findings of fact and conclusions as to the justness of the disciplinary action. (h) There shall be no formal restrictions on the kind of or form of evidence presented so long as it is pertinent to the appeal and is not unduly repetitive, but the Personnel Board by majority vote may limit repetitive evidence and may restrict evidence to matters pertinent to the hearing and to evidence which they would find credible. (i) The Personnel Board has power to uphold the disciplinary action, to set aside the disciplinary action completely restoring the appealing employee to his or her former position and to any and all pay which may have been lost because of the disciplinary action, or if the Personnel Board feels it necessary in the interest of justice that some disciplinary action be taken but that the particular disciplinary action was too extreme, it shall determine what the proper disciplinary action should be. (j) The decision of the Personnel Board may be made by a majority of the Board and shall be final and binding on the employee and on the City. (k) Copies of the appeal, the answer to the appeal, and the written decision of the Personnel Board shall become a part of the personnel file of the appealing employee. Section 15. Amendment of Section 23.35.080 (c) Safety, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.35.080(c) Safety, is hereby amended as follows: New Text Underlined; DELETED TEXT BRACKETED] Page 83 of 272 Ordinance No. 2761 -2014 Page 8 of 10 23.35.080 Safety. (c) When accidents occur on City property, the employee shall contact his or her supervisor immediately and the supervisor shall complete an accident form. In case of a motor vehicle accident, the Police Department shall also be notified immediately. Section 15. Amendment of Section 23.35.090(bl Legal liability, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.35.090(b) Legal liability, is hereby amended as follows: 23.35.090 Legal liability. (b) If an employee is grossly negligent in the performance of duties and responsibilities and if an accident results from such negligent performance of duties and responsibilities or if a court of law finds that the employee willfully exceeded his or her scope of duty and responsibility, the employee may be held personally and legally liable. Section 17. Amendment of Section 23.40.020 Holidays, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.40.020 Holidays, is hereby amended as follows: 23.40.020 Holidays. (a) Employees shall be entitled to the holidays listed below with pay. Full -time employees shall receive regular compensation; part -time employees shall be compensated in proportion to the number of hours they are normally scheduled to work. (1) New Year's Day (2) Washington's Birthday (the third Monday in February) (3) Memorial Day (the last Monday in May) (4) Independence Day (5) Labor Day (6) Alaska Day (7) Veteran's Day (8) Thanksgiving Day (9) Day after Thanksgiving (10) Christmas Day (11) A floating holiday subject to individual choice of each employee with five (5) working days notice to, and approval of, his or her immediate supervisor. (b) If any such holiday falls on a Sunday, the following Monday shall be given as a holiday. If such holiday falls on a Saturday, the preceding Friday shall be given as a holiday. (c) Public Safety and Sewer Treatment Plant employees who normally work holidays shall receive a [MONTHLY] payment for authorized holidays at 1 -1 /2 times their normal hourly pay as follows: Fire [(56 -HOUR WEEK)]: 11.2 hours pay per holiday. [FIRE, POLICE AND DISPATCH] Police, Communications, and Fire—(40-hour week): 8 (eight) hours pay per holiday. New Text Underlined; ]DELETED TEXT BRACKETED] Page 84 of 272 Ordinance No. 2761 -2014 Page 9 of 10 Sewer Treatment Plant Employees (40 -hour week): 8 (eight) hours pay per holiday. Holidays which occur during [VACATION] annual leave shall be charged against such leave. Section 18. Code: That l as follows: Annual leave, is hereby amended 23.40.030 Annual leave. (a) Annual leave is a combined vacation and sick leave. (b) Accrual rate: (1) Full-time classified employees except certain Fire Department employees: 7.3846 hours bi- weekly —first two (2) years of service. 8.3077 hours bi- weekly —three (3) through five (5) years of service. 9.2308 hours bi- weekly —six (6) through ten (10) years of service. 10.1538 hours bi- weekly —more than ten (10) years of service. (2) Fire [(BASED ON A FIFTY -SIX (56) HOUR WEEK)] Department employees engaged in fire protection activities: 10.3385 hours bi- weekly —first two (2) years of service. 11.6308 hours bi- weekly —three (3) through five (5) years of service. 12.9231 hours bi- weekly —six (6) through ten (10) years of service. 14.2154 hours bi- weekly —more than ten (10) years of service. (c) Annual leave is charged on an hour - for -hour basis; i.e., normal work day of eight (8) hours would be charged at eight (8) hours annual leave; twelve (12) hour work day, twelve (12) hours annual leave; ten (10) hour work day, ten (10) hours annual leave; twenty-four (24) hour work day, twenty-four (24) hours annual leave. (d) Leave continues to accrue during the period of time an employee is on paid leave except during periods of terminal leave (leave time after which the employee does not intend to return to work). Leave does not accrue during periods of leave without pay. (e) Accrued and unused leave may be carried over from one (1) year to the next for the purpose of accumulating an annual leave account or reserve. The maximum leave hours that may be accrued is six hundred forty (640) hours for classified and [EXEMPT] unclassified employees, and eight hundred ninety-six (896) hours for Fire Department employees [WORKING THE FIFTY -SIX (56) HOUR WEEK.] enea¢ed in fire protection activities. (t) Annual leave may be used for any purpose desired by the employee. Incidental absences for sickness as unplanned are not controllable. However, planned absences must be coordinated with and approved by the appropriate department head. (g) It is required that each employee use a minimum of eighty (80) hours of leave per calendar year for employees working forty (40) hours per week, and one hundred twelve (112) hours for employees [WORKING THE EQUIVALENT OF FIFTY -SIX (56) HOURS PER WEEK,] engaged in fire protection activities and affect appropriate coordination with the department head. If actual hours used are less than the minimum requirement, then the difference shall be deducted from available leave hours without any compensation to the employee. New Text Underlined; DELETED TEXT BRACKETED] Page 85 of 272 Ordinance No. 2761 -2014 Page 10 of 10 (h) Excess leave above the amount authorized for accrual (subsection (a)(2)([D]e)) existing on December 31st shall automatically be paid at the then existing rate for the individual employee. (i) Department heads shall schedule vacations for their respective employees with due consideration for the desires of the employees and the work requirements facing the department. Vacation schedules may be amended to allow the department to meet emergency situations. (j) In the event of significant illness or injury not covered by workers' compensation, or absence due to training or education an employee on exhausting annual leave may, with the approval of the City Manager, borrow up to a six (6) month entitlement (i.e., thirteen (13) x 7.3846 hours) to avoid a no -pay status. In the event the person's employment with the City ends prior to the borrowed leave being repaid, the employee must reimburse the City for the value of any leave not repaid. The City may deduct the value of any leave not repaid from the employee's final paycheck. (k) Part-time employees working fifteen (15) hours a week or more shall accrue at the same rate as a full-time employee except on a proportional basis as to hours. (1) Supervisory and professional positions of the classified and exempt services considered to be exempt from the provisions of the Fair Labor Standards Act shall have annual leave charged on an eight (8) hour /whole day basis. If any such employee is present for work during any portion of a day, that employee shall not be charged annual leave for that day. Conversely, if any such employee is absent from her or his normal place of work for an entire day (excluding Saturdays, Sundays, and holidays) that employee will be charged eight (8) hours of annual leave for that day. Section 19. Effective Date: That pursuant to KMC 1.15.070(1), this ordinance shall take effect one month after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this June day of 18, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: June 4, 2014 Adopted: August 20, 2014 Effective: September 19, 2014 New Text Underlined; (DELETED TEXT BRACKETED) Page 86 of 272 MEMO: "Village with a Past, C# witk a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -7535 / FAX: (907) 283 -3014 www dkenai.ak.us TO: Rick Koch, City Manager FROM: tpvchristine Cunningham, Assistant to City Manager/ Human Resource Specialist DATE: May 15, 2014 SUBJECT: Ordinance No. 2761 -2014 Proposed Revisions to Kenai Municipal Code Title 23 k „� l t'III� 2011 The purpose of this memo is to provide additional information in support of the referenced Ordinance. As a result of the recent update to the employee handbook, which required a review of the City's personnel regulations, the following revisions to the personnel regulations are recommended: KMC 23.05.010, Employment — Qualifications, amend to include protected classes as follows: Employment in City Government shall be based on qualifications, free of personal and political considerations, with equal opportunity for all with no [UNLAWFUL RESTRICTIONS AS TO RACE, COLOR, CREED, RELIGIOUS AFFILIATIONS, AGE OR SEX] discrimination in employment on the basis of tal status pregnancy, parenthood, or genetic information. It is a policy of the to not discriminate against the qualified disabled in employment. The Genetic Information Nondiscrimination Act of 2008 (GINA) and the Alaska Human Rights Law, AK ST § 18.80.200 include protections based on genetic information and on marital status, changes in marital status, pregnancy, or parenthood, respectively. 2. KMC 23.05.070 (a) , amend definition of "exempt" as follows: [EXEMPT SERVICE] Unclassified Service: [EXEMPT SERVICE] the unclassified service shall include ail elected officials, City Manager, City Attorney, City Clerk, and temporary employees. Members of boards, committees, commissions, volunteers, contractors, and consultants are not employees. Page 87 of 272 Ordinance No. 2761 -2014 Proposed Revisions to Kenai Municipal Code Title 23 May 15, 2014 Page 2 of 4 The term "exempt" is also used in Code to refer to employees who are exempt from the provisions of the Fair Labor Standards Act (FLSA). 3. KMC 23.05.070 (r), amend "his" to gender - neutral "his or her' and "him" to "him or her." 4. KMC 23,10.020 (b), amend as a result of Ordinance No. 2312 -2008: Members of Boards or Commissions. Only the following provisions shall apply to such officials: KMC 23.30.110(b) and (d). Only the following provisions shall Ordinance No. 2312 -2008 amended KMC 14.05.010 by adding a new subsection to compensate Planning and Zoning Commissioners but did not amend KMC 23.10.020 (b) to provide for participation in the Medicare portion of Social Security taxes as required by the Federal government or cover compensated Commissioners under the State of Alaska workers' compensation program. These benefits have been provided to Planning and Zoning Commissioners since Ordinance No. 2312 -2008 became effective. 5. KMC 23.10.030 (b), amend "Librarian" to "Library Director" to match the Class Code in the Classification Plan under KMC 23.50.010. 6. KMC 23.15.010, Administration by City Manager, amend "he" to gender - neutral "he or she." 7. KMC 23.25.060, Overtime, amend to remove word "Holiday" Holiday pay for police, communications, sewer treatment plant employees and employees engaged in fire protection activities is included under KMC 23.40.020 (c) and is currently left blank under KMC 23.25.060 8. KMC 23.25.065 (d), correct spelling error, "differential." 9. KMC 23.30.010(e), amend to replace the term "handicapped" with more generally acceptable terminology as follows: Employment of qualified [, HANDICAPPED PERSONS] individuals with a disability shall be encouraged. The Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, are the primary laws dealing with disability discrimination and utilize the term "disabled." When identifying a person or persons with a disability, the pronoun should come first so it does not modify the person, i.e. "disabled person." 10. KMC 23.30.020 (b), amend to include protected classes as follows: No question in any test or in any application form or by any appointing authority shall be so framed as to attempt to elicit information concerning race, color, [ANCESTRY,] religion, sex, national origin, age disability, marital status. Page 88 of 272 Ordinance No. 2761 -2014 Proposed Revisions to Kenai Municipal Code Title 23 May 15, 2014 Page 3 of 4 or political [OR RELIGIOUS] affiliation for the purposes of discriminating. Amended language is consistent with proposed amendment to KMC 23.05.010, above, which includes protected classes covered by GINA and the Alaska Human Rights Law. National origin refers to "the country where a person was born, or, more broadly, the country from which his or her ancestors came" and is similar to "ancestry." 11. KMC 23.30.050 (e), amend "exempt' to "unclassified" in accordance with proposed amendment to KMC 23.05.070 (a), above. 12. KMC 23.35.020 (b) (3), amend to remove "The employee shall advise the supervisor of the known side effects of such medication, as well as the prescribed period of use." The Americans with Disabilities Act protects the privacy of employee medical information that is not job - related and consistent with business necessity with the exception of inquiries for occupations regulated by federal law (e.g. Federal Motor Carrier Safety Act). 13. KMC 23.35.034 (a), (c), (d), (e), and (i) amend instances of "his" to gender - neutral "his or her." 14. KMC 23.35.080 (c), amend "his" to gender - neutral "his or her." 15. KMC 23.35.090 (b), amend "his" to gender - neutral "his or her." 16. KMC 23.40.020 (a) (11), amend "he" to gender - neutral "he or she." 17. KMC 23.40.020 (c), amend to reflect Ordinance No. 2693 -2013, Ordinance No. 2696- 2013, and KMC 23.40.030 (a) as follows: Public Safety and Sewer Treatment Plant employees who normally work holidays shall receive a [MONTHLY] payment for authorized holidays at 1 -112 times their normal hourly pay as follows: Employees Engaged in Fire Protection Activities[(56 -HOUR WEEK)]: 11.2 hours pay per holiday. [FIRE, POLICE AND DISPATCH] Police, Communications. and Fire (40- hour week): 8 (eight) hours pay per holiday. Sewer Treatment Plant Employees (40 -hour week): 8 (eight) hours pay per holiday. Holidays which occur during [VACATION] annual leave shall be charged against such leave. Ordinance No. 2693 -2013 amended KMC 23.25.050, 23.25.060, and 23.40.030, 23 to provide for a bi- weekly pay period instead of a monthly pay period. Ordinance No. 2696- 2013 amended KMC 23.25.060 and 23.30.050 to accommodate a new work schedule for employees engaged in fire protection activities. Annual leave is defined in KMC 23.40.030 as combined vacation and sick leave. 18. KMC 23.40.030 (b) (2), amend to reflect Ordinance No. 2696 -2013 as follows: Page 89 of 272 Ordinance No. 2761 -2014 Proposed Revisions to Kenai Municipal Code Title 23 May 15, 2014 Page 4 of 4 (2) Fire [(BASED ON A FIFTY -SIX (56) HOUR WEEK)] Department employees engaged in fire protection activities: Ordinance No. 2696 -2013 amended KMC 23.25.060 and 23.30.050 to accommodate a new work schedule other than the 56- hour -week schedule for employees engaged in fire protection activities. 19. KMC 23.40.030 (e), amend "exempt' to "unclassified" in accordance with proposed amendment to KMC 23.05.070 (a), above and to reflect Ordinance No. 2696 -2013 as follows: Accrued and unused leave may be carried over from one (1) year to the next for the purpose of accumulating an annual leave account or reserve. The maximum leave hours that may be accrued is six hundred forty (640) hours for classified and [EXEMPT] unclassified employees, and eight hundred ninety -six (896) hours for Fire Department employees [WORKING THE FIFTY -SIX (56) HOUR WEEK.] engaged in fire protection activities. Ordinance No. 2696 -2013 amended KMC 23,25.060 and 23.30.050 to accommodate a new work schedule other than the 56- hour -week schedule for employees engaged in fire protection activities. 20. KMC 23.40.030 (g), amend to reflect Ordinance No. 2696 -2013 as follows: It is required that each employee use a minimum of eighty (80) hours of leave per calendar year for employees working forty (40) hours per week, and one hundred twelve (112) hours for employees [WORKING THE EQUIVALENT OF FIFTY -SIX (56) HOURS PER WEEK,] engaged in fire protection activities and affect appropriate coordination with the department head. If actual hours used are less than the minimum requirement, then the difference shall be deducted from available leave hours without any compensation to the employee. Ordinance No. 2696 -2013 amended KMC 23.25.060 and 23.30.050 to accommodate a new work schedule other than the 56- hour -week schedule for employees engaged in fire protection activities. 21. KMC 23.40.030 (h), revise reference to subsection (d) to subsection (e), as follows: Excess leave above the amount authorized for accrual (subsection (a)(2)([D]e, above)) existing on December 31st shall automatically be paid at the then existing rate for the individual employee. Ordinance No. 2278 -2008 amended KMC 23.40.030 and re- lettered sub - sections but did not amend the reference in section (h) 22. KMC 23.55.040 (a), amend "Dispatch" to "Communications" These amendments and Ordinance No. 2761 -2014 have been reviewed by the City Attorney. Page 90 of 272 "Villa9e with a Past, C# with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907- 283 -75351 FAX: 907 -283 -3014 MEMORANDUM TO: Mayor Porter and Council Members FROM: Scott Bloom, City Attorney DATE: August 12, 2014 SUBJECT: Ordinance No. 2761 -2014, KMC 23.40.020 Holidays I recommend the following amendments to Sections 17 & 18 below, shown in bold to Ordinance 2761 -2014 to distinguish between applicable benefits for fire department employees who are working what is commonly referred to as a "7(k) Work Period" I') from those working a 40 hour/ week schedule. The proposed amended language is also consistent with other references to Fire Department employees in the City's code of ordinances. Section 17. Amendment of Section 23.40.020 Holidays, of the Kenai Municipal Code: That Kenai Municipal Code Section 23.40.020 Holidays, is hereby amended as follows: 23.40.020 Holidays. (a) Employees shall be entitled to the holidays listed below with pay. Full-time employees shall receive regular compensation; part-time employees shall be compensated in proportion to the number of hours they are normally scheduled to work. (1) New Year's Day (2) Washington's Birthday (the third Monday in February) (3) Memorial Day (the last Monday in May) (4) Independence Day (5) Labor Day (6) Alaska Day (7) Veteran's Day (8) Thanksgiving Day (9) Day after Thanksgiving tq Section 7(k) of the FLSA provides that employees engaged in fire protection or law enforcement may be paid overtime on a "work period" basis. A "work period" may be from 7 consecutive days to 28 consecutive days in length. Page 91 of 272 August 12, 2014 Page 2 of 3 (10) Christmas Day (11) A floating holiday subject to individual choice of each employee with five (5) working days notice to, and approval of, his or her immediate supervisor. (b) If any such holiday falls on a Sunday, the following Monday shall be given as a holiday. If such holiday falls on a Saturday, the preceding Friday shall be given as a holiday. (c) Public Safety and Sewer Treatment Plant employees who normally work holidays shall receive a [MONTHLY] payment for authorized holidays at 1 -1/2 times their normal hourly pay as follows: Fire ([56 -HOUR WEEK] "7(k) Work Period" ): 11.2 hours pay per holiday. [FIRE, POLICE AND DISPATCH] Police. Communications. and Fire (40 -hour week): 8 (eight) hours pay per holiday. Sewer Treatment Plant Employees (40 -hour week): 8 (eight) hours pay per holiday. Holidays which occur during [VACATION] annual leave shall be charged against such leave. Section 18. Amendment of Section 23.40.030 Annual leave of the Kenai Municipal Code: That Kenai Municipal Code Section 23.40.030 Annual leave, is hereby amended as follows: 23.40.030 Annual leave. (a) Annual leave is a combined vacation and sick leave. (b) Accrual rate: (1) Full -time classified employees except certain Fire Department employees: 7.3846 howl bi- weekly —first two (2) years of service. 8.3077 hours bi- weekly —three (3) through five (5) years of service. 9.2308 hours bi- weekly —six (6) through ten (10) years of service. 10.1538 hours bi- weekly —more than ten (10) years of service. (2) Fire [BASED ON A FIFTY -SIX (56) HOUR WEEK] "7(k) Work Period ":) 10.3385 hours bi- weekly —first two (2) years of service. 11.6308 hours bi- weekly —three (3) through five (5) years of service. 12.9231 hours bi- weekly —six (6) through ten (10) years of service. 14.2154 hours bi- weekly —more than ten (10) years of service. (c) Annual leave is charged on an hour- for -hour basis; i.e., normal work day of eight (8) hours would be charged at eight (8) hours annual leave; twelve (12) hour work day, twelve (12) hours annual leave; ten (10) hour work day, ten (10) hours annual leave; twenty -four (24) hour work day, twenty-four (24) hours annual leave. Page 92 of 272 August 12, 2014 Page 3 of 3 (d) Leave continues to accrue during the period of time an employee is on paid leave except during periods of terminal leave (leave time after which the employee does not intend to return to work). Leave does not accrue during periods of leave without pay. (e) Accrued and unused leave may be carried over from one (1) year to the next for the purpose of accumulating an annual leave account or reserve. The maximum leave hours that may be accrued is six hundred forty (640) hours for classified and [EXEMPT] unclassified emplovees, and eight hundred ninety -six (896) hours for Fire Department employees working [THE FIFTY -SIX (56) HOUR WEEK] a "7(k) Work Period." (f) Annual leave may be used for any purpose desired by the employee. Incidental absences for sickness as unplanned are not controllable. However, planned absences must be coordinated with and approved by the appropriate department head. (g) It is required that each employee use a minimum of eighty (80) hours of leave per calendar year for employees working forty (40) hours per week, and one hundred twelve (112) hours for employees working [THE EQUIVALENT OF FIFTY -SIX (56) HOURS PER WEEK] a "7(k) Work Period ", and affect appropriate coordination with the department head. If actual hours used are less than the minimum requirement, then the difference shall be deducted from available leave hours without any compensation to the employee. (h) Excess leave above the amount authorized for accrual (subsection (a)(2)([D]e)) existing on December 31st shall automatically be paid at the then existing rate for the individual employee. (i) Department heads shall schedule vacations for their respective employees with due consideration for the desires of the employees and the work requirements facing the department. Vacation schedules may be amended to allow the department to meet emergency situations. 0) In the event of significant illness or injury not covered by workers' compensation, or absence due to training or education an employee on exhausting annual leave may, with the approval of the City Manager, borrow up to a six (6) month entitlement (i.e., thirteen (13) x 7.3846 hours) to avoid a no -pay status. In the event the person's employment with the City ends prior to the borrowed leave being repaid, the employee must reimburse the City for the value of any leave not repaid. The City may deduct the value of any leave not repaid from the employee's final paycheck. (k) Part-time employees working fifteen (15) hours a week or more shall accrue at the same rate as a full -time employee except on a proportional basis as to hours. (1) Supervisory and professional positions of the classified and exempt services considered to be exempt from the provisions of the Fair Labor Standards Act shall have annual leave charged on an eight (8) hour /whole day basis. If any such employee is present for work during any portion of a day, that employee shall not be charged annual leave for that day. Conversely, if any such employee is absent from her or his normal place of work for an entire day (excluding Saturdays, Sundays, and holidays) that employee will be charged eight (8) hours of annual leave for that day. YACity Attomey \Correspondence\2014 0811 Memo to Council for Pkt.docx Page 93 of 272 u "V'�lage with a Past City with a Future" MEMO: 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 illlli 1992 TO: City Council FROM: Rick Koch, City Manager DATE: August 13, 2014 SUBJECT: Ordinance 2761 -2014 At the Council meeting of July 2, 2014 1 requested that this ordinance be postponed as I had questions regarding the designation of Council Members and Planning & Zoning Commission Members as employees. Having had the opportunity to discuss my questions with the City Attorney I believe that Council and Commission Members should be described as something other than employees; however, it is not a significant issue and 1 no longer have any reservations and /or questions regarding this ordinance. Page 94 of 272 Sponsored by: Council Member Boyle CITY OF KENAI LANCE NO. 2786 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ENACTING KMC 23.40.035 - BONA FIDE EMPLOYER - SPONSORED MEDICAL LEAVE SHARING ARRANGEMENT. WHEREAS, allowing employees to share accrued annual leave with other employees suffering medical emergencies provides a benefit to employees in times of hardship and opportunity for co- employees to provide assistance as desired; and, WHEREAS, in order for employees to donate leave without tax consequences to the donating employees, a Bona Fide Employer- Sponsored Medical Leave Sharing Arrangement must be established with certain minimum requirements met; and, WHEREAS, it is in the best interest of the City to establish a Bona Fide Employer - Sponsored Medical Leave Sharing Arrangement for its employees which will benefit employees at little cost to the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that Section 1. Form: That this is a code ordinance Section 2. Enactment of Section 23.40.035 of the Kenai Municipal Code: That Kenai Municipal Code, Section 23.40.035 - Bona Fide Employer- Sponsored Medical Leave Sharing Arrangement, is hereby enacted as follows: 23.40.035 - Bona Fide Employer - Sponsored Medical Leave Sharing Arrangement. emergencies as follows: (1) Requests for leave donations must be made by the employee through the i. the requesting employee has made a request for leave under this section of code; ii. the amount of leave requested; iii. generic procedural information; and Page 95 of 272 Ordinance No. 2787 -2014 Page 2 of 3 (2) (3) (4) (5) iv. no protected health information or specific factual information may be disclosed. parent, or child, including bereavement for a spouse, parent or child, leave. (6) Donated leave will not count towards the minimum hours of leave each employee must use each calendar year. (7) Section 3. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: That pursuant to KMC 1.15.0700, this ordinance shall take effect 30 days after adoption. New Text Underlined; DELETED TEXT BRACKETED Page 96 of 272 Ordinance No. 2787 -2014 Page 3 of 3 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: August 6, 2014 Adopted: August 20, 2014 Effective: September 19, 2014 Nm Text Underlined; DELETED TEXT BRACKETED Page 97 of 272 "'V'ililaye with a Past, C# with a Future 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 1IIII1 1992 MEMO: TO: City Council FROM: Rick Koch, City Manager DATE: August 13, 2014 SUBJECT: Ordinance 2786 -2014 The purpose of this correspondence is to provide comments for Council consideration regarding the above referenced ordinance. Administration is supportive of a policy that provides the opportunity for city employees to be able to donate accrued annual leave to fellow employees which may be experiencing hardship due to medical emergencies. Administration recognizes that annual leave is an earned asset which belongs to each city employee. There are two items that I would respectfully ask the Council to consider amending in this ordinance: "(2) .......Employees donating leave must have and maintain a minimum of 40 hours of accrued annual leave in their leave accounts." Under current code the City requires that employees maintain a minimum of eighty (80) hours of annual leave when "cashing out" annual leave. This ordinance would allow employees to donate annual leave but only require that a minimum of forty (40) hours of annual leave be maintained in their leave accounts. Administration recommends that the forty (40) hour provision in this ordinance be amended to eighty (80) hours. This will minimize the risk of someone donating leave and then find themselves in a similar position of hardship. Page 98 of 272 "(3) All leave will be donated into an employee leave bank and received on an hour for hour basis without consideration of individual City wages." If leave is donated on an hour for hour basis, unless the employee donating the leave and the employee receiving the leave are at the same grade and step in the City's salary schedule, the City will either be required to provide a monetary supplement, or receive a monetary donation of the excess value of donated leave. This is easier to explain by example: Example No. 1 An employee that is a range 20 (F) donates an hour of leave to a fellow employee that is a range 9(C). The value of the leave for the employee making the donation is $45.06 per hour. The value of the leave for the employee receiving the donation is $24.59 per hour. The City would be the recipient of the excess value of donated leave, in this example, of $ 20.47 per hour. Example No. 2 An employee that is a range 9(C) donates an hour of leave to a fellow employee that is a range 20(F). The value of the leave for the employee making the donation is $24.59 per hour. The value of the leave for the employee receiving the donation is $45.06 per hour. The City would subsidize the insufficiency in the donation of leave by $20.47 per hour . If the donation of leave was based on the monetary value of the leave, donated and received, the following examples would apply: Example No. 1 An employee that is a range 20 (F) donates an hour of leave to a fellow employee that is a range 9(C). The value of the leave for the employee making the donation is $45.06 per hour. The value of the leave for the employee receiving the donation is $24.59 per hour. The employee receiving the donated leave would receive 1.832 hours of leave. Page 99 of 272 Example No. 2 An employee that is a range 9(C) donates an hour of leave to a fellow employee that is a range 20(F). The value of the leave for the employee making the donation is $24.59 per hour. The value of the leave for the employee receiving the donation is $45.06 per hour. The employee receiving the donated leave would receive 0.545 hours of leave. I have asked the Finance Director if there are any budgetary issues with either an hour for hour system, or a monetary value system, and was told that neither system results in budgetary issues, since the value of all employee leave is provided for in the financial reports. Administration recommends that this provision be amended to read, "All leave will be donated into an employee leave bank and be received and distributed on a monetary basis." While this is my recommendation, I remain in support of the ordinance regardless of the method of calculation. KMC 23.40.030(j) currently provides for employees to borrow up to six months accrual of annual leave in the event of significant illness or injury. While this has minimized the need for a leave donation policy there have been instances in which employees have utilized all of their leave including borrowed leave, and a leave donation policy could be of significant benefit. If you have any questions, please feel free to contact me at your convenience. Page 100 of 272 Sponsored by: Mayor Porter and Council Member Molloy CITY OF KENAI ORDINANCE NO. 2787 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, REPEALING KMC 7.15.110 - OFFSET AGAINST DELINQUENT TAXES, AND RE- ENACTING THE CODE SECTION AS KMC 7.15.110 - TAX COMPLIANCE, TO REQUIRE INDIVIDUALS AND BUSINESSES CONTRACTING WITH THE CITY TO BE IN COMPLIANCE WITH CITY TAX ORDINANCES. WHEREAS, it is in the City's best interest to contract with and conduct business with individuals and businesses that are in compliance with the City's tax ordinances; and, WHEREAS, while the City's code allows the City to offset amounts owed by its contractors for delinquent City taxes, it does not prohibit the award of contracts to contractors that are delinquent on City taxes; and, WHEREAS, requiring certification of tax compliance for competitively bid transactions prior to award of a contract is administratively feasible; and, WHEREAS, allowing the City to terminate contracts or offset amounts owed for delinquent taxes will help ensure that individuals and businesses who do business with the City remain in tax compliance even for purchases not competitively bid; and WHEREAS, exempting tax compliance verification from transactions with or through other government agencies is reasonable, as these types of transactions do not result in taxable transactions and are exempt from sales taxes under code; and, WHEREAS, it is in the best interest of the City of Kenai to require individuals and business contracting with the City to be in compliance with City tax ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that Section 1. Form: That this is a code ordinance. Section 2. Reveal and Re- Enactment of Section 7 15.110 of the Kenai Municipal Code: That Kenai Municipal Code, Section 7.15.110 - Offset of Delinquent Taxes, is hereby Repealed and Re- Enacted as follows: [7.15. 110 OFFSET AGAINST DELINQUENT TAXES. THE CITY MAY OFFSET AMOUNTS OWED BY ITS CONTRACTOR(S) FOR DELINQUENT CITY TAXES AGAINST ANY AMOUNT OWING TO THE CONTRACTOR(S) UNDER A CONTRACT BETWEEN THE CITY AND THE CONTRACTOR(S)] New Text Underlined; [DELETED TEXT BRACKETED) Page 101 of 272 Ordinance No. 2787 -2014 Page 2 of 2 7.15.110 Tax Comvliance. (al No contract that requires competitive bidding pursuant to a City ordinance may (b) If an individual or business becomes delinquent on any City tax obligati on during the term of a contract. the City may terminate the contract if not cured within (c) Tax compliance verification is not required for purchases when the City conducts business with or through other federal, state or local governmental agencies. Section 3. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: That pursuant to KMC 1.15.0700, this ordinance shall take effect 30 days after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: August 6, 2014 Adopted: August 20, 2014 Effective: September 19, 2014 New Text Underlined; [DELETED TEXT BRACKETED] Page 102 of 272 u "Village with a Past, Ci� with a Future 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 MEMORANDUM TO: Council Members Bookey, Boyle, Gabriel, Marquis & Navarre FROM: Mayor Porter and Council Member Molloy DATE: 08 -14 -14 SUBJECT: Ordinance No. 2787 -2014 It is in the best interest of the City of Kenai to require individuals and businesses contracting with the City to be in compliance with City tax ordinances. Existing Code does not expressly establish this policy, although it has been the City's practice. Kenai Municipal Code 7.15.110 - Offset against delinquent taxes, currently only allows the City to `offset amounts owed by its contractor(s) for delinquent City taxes against any amount owing to the contractor(s) under a contract between the City and the contractor(s)." Ordinance No. 2787 -2014 repeals KMC 7.15.110 -Offset against delinquent taxes and re- enacts it as KMC 7.15.110 -Tax Compliance. hi this ordinance, there are 3 subsections: 1. Subsection (a) establishes that "No contract that requires competitive bidding pursuant to a City ordinance may be awarded to an individual or business that is in violation of City tax ordinances unless the violation is cured within 10 business days of notice." This means that pursuant to KMC 7.15.040- Competitive bidding, and 7.15.050- Purchases, when competitive bidding not required, unless certain specific exemptions apply, all purchases for supplies, materials, equipment, and contractual services in excess of $25,000 will require the City to verify tax compliance prior to award of a contract. Imposing the requirement on all purchases made by the City is not administratively practical primarily because the City makes thousands of individual purchases a year and does not have available staff time to verify tax compliance for every single transaction. 2. Subsection (b) applies to all contracts, not only contracts that require competitive bidding. Subsection (b) retains the option of "offset against delinquent taxes" including collection of applicable penalties and interest. Subsection (b) adds the option of the City's right to terminate a contract if an individual or business becomes delinquent on any City tax obligation during the term of a contract, and the delinquency is not cured within 10 business days of notice. The City also could use both options under subsection (b): terminate the contract and offset amounts owed to the contractor up to the amount of the delinquent tax obligation plus applicable penalties and interest. Page 103 of 272 City Councilors 08.14 -14 Page 2 of 2 3. Subsection (c) provides that "Tax compliance verification is not required for purchases when the City conducts business with or through other federal, state or local governmental agencies." These transactions with or through other governmental agencies are non taxable transactions under Code, therefore tax compliance verification should not be required because nothing is gained by the additional administrative burden and expense that would be imposed if tax verification compliance was required. Your support of this ordinance is respectfully requested. Page 104 of 272 v Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2788 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, INCREASING ESTIMATED REVENUES AND APPROPRIATIONS IN THE AIRPORT AND AIRPORT EQUIPMENT CAPITAL PROJECT FUNDS FOR THE PURCHASE OF SNOW REMOVAL EQUIPMENT (SRE) — PLOW TRUCK WITH ATTACHMENTS. WHEREAS, the Airport owns a 1995 Oshkosh Plow Truck that is due for replacement; and, WHEREAS, new upgraded equipment will improve the Airport's capability to effectively address snow and ice conditions to ensure safe operations with dependable equipment; and, WHEREAS, Snow Removal Equipment is FAA eligible and grant funds are available and the City has been awarded a grant totaling $543,706 comprised of 93.75% FAA $509,724, 3.125% State of Alaska $16,991 and requiring a 3.125% local share of $16,991; and, NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that estimated revenues and appropriations be increased as follows: Airport Fund Increase Estimated Revenues: Appropriation of Fund Balance Increase Appropriations Transfer to Airport Equipment Capital Project Fund Airport Eouipment Capital Project Fund Increase Estimated Revenues Federal Grant Share Transfer from Airport Special Revenue Fund State Grant Revenue Increase Appropriations Administration Machinery & Equipment New Text Underlined; ]DELETED TEXT BRACKETED] Page 105 of 272 $ 16,991 $ 16,991 $509,724 16,991 16.991 43 7 $ 16,991 526.715 43 70 Ordinance No. 2788 -2014 Page 2 of 2 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August, 2014. ATTEST: Sandra Modigh, City Clerk Approved by Finance: PAT PORTER, MAYOR Introduced: August 6, 2014 Adopted: August 20, 2014 Effective: August 20, 2014 New Text Underlined; DELETED TEXT BRACIMTED) Page 106 of 272 Municipal Airport Memo "Sevv%vtg,theiOveatxrl<e,ttuw Pevti,m+,aa%' 305 N. WIU.OW ST. SUITE 200 KBW, ALASKA 99611 TELEPHONE 907,28:1.7951 FAX 907,2833737 To: Rick R. Koch - City Manager Thru: Terry Eubank — Finance Director From: Mary Bondurant — Airport Date: July 18, 2014 Subject: Ordinance 2788 -2014 — "Snow Removal Equipment (SRE)" The FY14 Airport Capital Improvement Program identified the need to replace and upgrade snow removal equipment at the Kenai Airport. A federal grant application for $543,706 was submitted to the FAA on June 5, 2014 for an Oshkosh Plow Truck with attachments. The City has now received the FAA's grant offer for $509,724 (93.75 %). The Airport and State of Alaska are each responsible for 3.125% of this project or $16, 991. This purchase will replace a worn out 1995 Oshkosh Plow Truck and provide a vital new piece of equipment that plows, scrapes, deices, and sands. Please contact me if you have any questions. Attachment www.kenaiairport.com. Page 107 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 108 of 272 Sponsored by: Council Member Mike Boyle CITY OF KENAI NO. 2789 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KENAI MUNICIPAL CODE SECTION 11.05.050, "CONDITION AS TO EQUAL SERVICES AND RATES,- TO REQUIRE THAT THE CITY PROVIDE RESIDENTS OF THE CITY OF KENAI WITH FREE SERVICES AT THE CITY -OWNED BOAT LAUNCH AND PARKING FACILITY. WHEREAS, the City has put into place certain fees for taking advantage of City- provided services at the City-owned and operated boat launch facility; and, WHEREAS, although the City of Kenai Dock launching ramps and floats are facilities that provide access to waterways for the entire public, the costs of operating these facilities are supported not only from user fees but by the residents of Kenai who support governmental operations through taxes; and, WHEREAS, it is in the best interest of the City to acknowledge the contributions of the residents of the City of Kenai in payment of taxes by offering free City services at the City's boat launch and floats. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, as follows: Section 1. Form: This is a Code ordinance. Section 2. Amendment of Section 11.05.050 of the Kenai Municipal Code: The Kenai Municipal Code, Section 11.05.050, Condition as to equal services and rates, is hereby amended as follows: 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. Notwithstanding, the City shall provide services at its launch ramp and adiacent parking facilitv to residents of the City of Kenai at no charge. New Tent Underlined; DELETED TEXT BRACKETED] Page 109 of 272 Ordinance No. 2789 -2014 Page 2 of 2 Section 3. Severability: If any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: Pursuant to KMC 1.15.070(f), this ordinance shall take effect one month after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August, 2014 ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: August 6, 2014 Adopted: August 20, 2014 Effective: September 19, 2014 New Text Underlined; (DELETED TEXT BRACKETED Page 110 of 272 U "Villa9e with a Past, C# with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 MEMORANDUM TO: Mayor Porter and Council Members FROM: Scott Bloom � ' DATE: August 14, 2014 SUBJECT: Ord. 2789 -2014, Boat Launch Fees I have no reason to disagree with the main conclusions reached by former City Attorneys Krista Stearns and Cary Graves in the attached opinions on the issues presented by Ordinance 2789 -2014. If anything, the recent use of dedicated dip net revenue for dock funding has made it more difficult to legally support free use of the boat launch fees for residents only. Enc. Opinion of Krista Stearns dated 6/1/2011 Ord. No.2559 -2011 Opinions of Cary Graves dated 9/5/2003, 9/9/2004 and 5/11/2007 Page 111 of 272 p'l�lk�i4' " "V'ila�ye with a Past, Gciy with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 � Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 1IIII1 1992 MEMO: TO: Mayor Porter and City Councilors FROM: Krista S. Stearns City Attorney DATE: June 1, 2011 SUBJECT: Resident Preference at Boat Launch Proposed Ordinance No. 2559 -2011 At the May 18, 2011 Council meeting, the Council introduced Ordinance No. 2559 -2011. This ordinance, sponsored by Council Member Boyle, provided for an exception to the City's general policy of non - discrimination with respect to harbor facilities. Specifically, the ordinance would allow the City to provide services at its launch ramp and adjacent parking facility to residents of the City of Kenai at no charge. During the meeting I opined that this ordinance probably violated the public trust doctrine.' The Council requested further analysis of the issue, and specifically asked for an analysis of whether the ordinance would put the City in violation of conditions of funding sources used by the City to construct or maintain the facility. Council Member Moore made specific reference to monies received under the Dingell - Johnson Act and asked for additional analysis about the meaning of the term "resident" as used in the ordinance. ISSUES PRESENTED A. Does Proposed Ordinance No. 2559 -2011 Violate the Public Trust Doctrine? Preliminary Answer: Yes. The boat launch is clearly covered under the doctrine, although there continues to be a question about whether the parking area - -an area upland of the mean high water mark - -is subject to the doctrine as applied I also suggested that the ordinance also raised issues of potential violation of the Commerce Clause of the United States Constitution and the equal protection clauses of the United States and Alaska constitutions. Memorandum on Ordinance No. 2559 -2011 Page 1 of 9 Page 112 of 272 in Alaska. If challenged, it is likely that the ordinance would likely be invalidated by a court. To best survive a legal challenge, an ordinance that had the effect of charging a differential fee benefiting local residents should be keyed to recapturing capital expenditure already paid by residents. B. Would Adoption of Ordinance No. 2559 -2011 put the City in Violation of Conditions of Funding Sources Used by the City to Construct or Maintain the Boat Launch And /Or its Adjacent Parking Area? Preliminary Answer: Maybe. There are federal laws and some federal regulations associated with grant programs that suggest that fees for use of these facilities be fair and equitable and/or based upon the cost of services provided. These laws create serious questions about a resident preference. Separately, the patent conveying land used for the dock and boat launch facility includes language that might restrict the City's use of the land to benefit residents. C. What is a "resident" as That Term is Used in Ordinance No. 2559 -2011? Preliminary Answer: The term `resident" as used in the ordinance, should be understood to mean a person physically present in the City and who has the intent to remain in the City indefinitely and to make the City their home. If you want to read further, a more detailed analysis is set forth below. ANALYSIS A. Does Ordinance No. 2559 -2011 Violate the Public Trust Doctrine? In my opinion, if Ordinance No. 2559 -2011 was enacted, an Alaska court would find that it violates the public trust doctrine. I have attached three opinions issued by former City Attorney Cary Graves on this issue.z I concur with the conclusions he draws in the opinions. The third memorandum dated May 11, 2007, is the most comprehensive and addresses the boat launch area specifically. In summary, Mr. Graves concluded: i. The public trust doctrine is a legal doctrine that established the right of the public to fully enjoy public trust lands, waters, and living resources for a wide variety of recognized public uses such as navigation, commerce, and fishing. It means that there is a public use easement on tidelands between the mean high and low water marks. This z The opinions are dated September 5, 2003 (Beach Parking Fees and the "Public Trust Doctrine "), September 9, 2004 (Beach Parking Fee Discounts for City Residents), and May 11, 2007 (Public Trust Doctrine and Differential Fees). Memorandum on Ordinance No. 2559 -2011 Page 2 of 9 Page 113 of 272 doctrine is incorporated in Article VIII, section 14 of the Alaska Constitution and further incorporated into statute at AS 38.05.126(c). ii. The public trust doctrine does not prevent municipalities from regulating wet beach areas; but, the fees must be reasonable, must not discriminate against non- residents, and must be designed to fund maintenance and operations of the area. iii. Case law on the public trust doctrine focuses on two separate areas of the beach or tidelands. The "wet beach' area is the space between the mean high and low water marks. The "dry beach' area is the area above the mean high water mark. The boat launch is clearly covered by the public trust doctrine as it is part of the "wet beach." There is some question, however, about whether the parking areas are covered by the public trust doctrine because those areas are in the "dry beach' area. There are no controlling cases in Alaska clearly establishing the extent to which the public trust doctrine affects the "dry beach' area. Predicting how a court would rule is to provide you with an educated guess. It is an issue is one upon which reasonable persons could disagree. iv. Whether a differential non - resident fee would be upheld by the court would depend upon whether the court felt that the fees were an attempt to give Kenai residents preferential access to and use of the resources that are held in trust for all state residents or whether the differential fee was a legitimate attempt to fairly recapture capital expenditures already paid for by City residents. As drafted, the ordinance reflects a clear intent to give preferential access to Kenai residents. This ordinance is unlike a seasonal discount pass already offered by the City. Seasonal discount passes may have an incidental effect of benefitting residents over non- residents because a resident is more likely to benefit from a season pass than a non- resident. But, the benefits are not restricted only to residents. And, by its proposals to provide absolutely free use of the facility for residents, it is evident that the difference favoring residents is not tied to an attempt to recapture capital expenditures or municipal dollars used to staff and maintain the facility and already paid by city residents. Under these circumstances, the ordinance is likely to be invalidated by a court if challenged. Since Mr. Graves issued his last memorandum on this issue, the Alaska Supreme Court has considered the public trust doctrine in detail in one case.3 In State, Dept. of Natural Resources v. Alaska Riverways, Inc., the Alaska Supreme Court examined a DNR requirement that a tour boat operator, Alaska Riverways, lease state shorelands for purposes of a wharf even though Alaska Riverways owned lands adjacent to the 3 State, Dept. of Natural Resources v. Alaska Riverwvays, Inc., 232 P.3d 1203 (Alaska 2010). Memorandum on Ordinance No. 2559 -2011 Page 3 of 9 Page 114 of 272 shorelands subject to the lease. Alaska Riverways challenged the lease requirement and the fee structure setting the rent. The court upheld the State's right to require a lease to wharf out; but it rejected the State's computation of rent that was based on a per passenger fee. The court concluded that the lease fee was in violation of a federal law, 33 U.S.C. § 5(b), the Rivers and Harbors Appropriation Act of 1884. (It was also in violation of the Commerce or Tonnage clauses of the US Constitution.) The laws prohibit a fee for the use of navigable waters "unless those fees do not impose a significant burden on interstate commerce and represent a fair approximation of the benefit conferred or cost incurred by the charging authority."' The court concluded that the proposed lease fee based on passenger count was clearly impermissible because it does not approximate the benefit conferred or cost incurred by the State of Alaska. The State had not shown that it incurred cost in leasing the unimproved land or that it provided any services to Alaska Riverways or its passengers. The benefit conferred by the State on Alaska Riverways was the exclusive use of state - owned shorelands. The court acknowledged that the State may charge for this benefit. But, the per - passenger lease fee had no relation to this benefit. Whether Alaska Riverways has 100 or 100,000 passengers, the benefit conferred by the State is the same. Thus, the court invalidated the fee structure for the lease. While not directly on point, the court's analysis provides additional support to Mr. Graves's prior conclusion that a differential fee structure should be based upon the benefits conferred on the user and the cost incurred by the City to provide the facilities. It also highlights that other federal laws may restrict the City's authority to discriminate in favor of residents. I discuss this below in more detail. Finally, the Council should appreciate that a court challenge may not arise only from disgruntled non - residents forced to pay a fee higher than residents. The State could also sue the City to compel the City to honor its public trust responsibilities. In fact, one Alaska Assistant Attorney General has even opined that if the City refused to acknowledge its public trust responsibility with respect to certain other tidelands transferred to the City by the State and to administer tidelands accordingly, the State could cancel its patent to the City.5 While I give no opinion on the States authority to do so here, it is helpful to know how seriously the State takes this issue. 4 State, Dept. of Natural Resources v. Alaska Riverways, Inc., 232 P.3d 1203, 1212, 1222 (Alaska 2010). 5 1989 Alaska Op. Atty. Gen. (Inf) 309. Attorney General opinions are not legally binding; but, courts do occasionally look to them for guidance and as evidence of the State's intent or understanding of statutes and regulations. Memorandum on Ordinance No. 2559 -2011 Page 4 of 9 Page 115 of 272 B. Would Adoption of Ordinance No. 2559 -2011 put the City in Violation of Conditions of Funding Sources Used by the City to Construct or Maintain the Boat Launch And /Or its Adjacent Parking Area? To date, I have received little information from Administration regarding exactly what public funds and grants were used to construct the boat launch and related parking facility. Thus, I cannot answer this question with respect to all funds used and my responses should be understood accordingly. 1. Grants Mr. Koch provided me with information about one grant used to fund improvements at the boat launch, Grant No. 04 -RR -013. This grant was closed on July 20, 2006, and involved the City's receipt of up to $350,000 in state funds for "Restoring River Banks of the Kenai River." The grant agreement includes a standard non - discrimination clause that requiring that the benefits from the project shall be made available "without regard to race, religion, color, national origin, age, physical handicap, sex, marital status, changes in marital status, pregnancy or parenthood." The grant language does not include any express restrictions prohibiting discrimination based upon residency. 2. Limitation in Deeds/Patents The City received patent A- 032678 covering at least some of the property used for the boat launch and city dock facility. The patent was issued "for public docking facilities, maritime commerce, transportation, warehousing, distribution of commerce, fishing, and port and waterfront development purposes only." The patent has a reverter clause prohibiting the City from using the land being for any other purpose without the consent of the Secretary of the Interior The patent does not contain express language prohibiting a preference for residents; however, such a restriction may have been anticipated. In an unsigned letter dated February 21, 1968,6 then City Manager James Harrison wrote to the federal government offering to make a negotiated purchase of the property. That letter included a statement of intended use stating that "[tjhe City of Kenai represents that the proposed real property would be used in connection with adjacent lands for comprehensive development of the . .. real property and the adjacent land ... to permit the utmost equitable service for the general public at the location indicated for dock, warehouse and storage facilities." The 6 Receipt of this letter was acknowledged by the federal government in its return letter agreeing to the transaction. Memorandum on Ordinance No. 2559 -2011 Page 5 of 9 Page 116 of 272 terms also included a proposed restriction on use preventing discrimination on the basis of "race, creed or national origin." This latter restriction is included in the express language of the deed. Historically, due to this reservation of rights in the federal government, the City has consulted with the Department of the Interior before issuing special use permits and other rights to use the subject land to private parties. If the City were to enforce a new ordinance providing for a resident preference, in light of this historical practice, and in light of the statement made in the 1968 letter ,7 I advise that the City seek either approval or input from the Secretary of the Interior regarding its stance on the ordinance. This would help the City avoid unnecessary litigation and/or give insight into the basis of any litigation if the Council wanted to pursue the preference for residents only. 3. Federal Law Council Member Moore asked about whether the Federal Aid in Sport Fish Restoration Act, 50 C.F.R. 80.1 et seq., (also sometimes referred to as the Dingell- Johnson Act, the Wallop- Breaux Amendment, or SIR) restricted the City's legal right to enact this ordinance. Dingell - Johnson funds are distributed to the states by the federal government and must be used to primarily benefit the recreational boating and sport fishing public.$ I have been told by the City Manager that I can assume that Dingell - Johnson funds have been used to improve the boat launch facility. Neither the statutes not the regulations administering the Dingell - Johnson Act include any provision expressly prohibiting a preference to local residents with respect to facilities constructed or maintained with Dingell - Johnson monies. The program does, however, require that a state, when participating in the program, agree to and certify that it will comply with all applicable Federal laws, regulations, and requirements as they relate to the application, acceptance, and use of Federal funds under the Acts .9 One specific federal funding program that might affect the City is the Boating Infrastructure Grant Program (BIG). The regulations implementing this program require 7 The City is not legally bound by the statement in the letter as any statements made before execution of the deed and the contracts for purchase are merged into the final conveyance document. ° 16 U.S.0 § 777 et seq. ' 50 C.F.R. § 80.21. Memorandum on Ordinance No. 2559 -2011 Page 6 of 9 Page 117 of 272 that fees be reasonable and based upon equitable principles. 10 The concept of "equitable principles" suggests that discrimination based upon residency is not permitted. 11 Another law, the Rivers and Harbors Appropriation Act (of 1884 and 1919) also would affect the City's ability to enact ordinances favoring residents. 12 The Act of 1919 states: It is hereby declared to be the policy of the Congress that water terminals are essential at all cities and towns located upon harbors or navigable waterways and that at least one public terminal should exist, constructed, owned, and regulated by the municipality, or other public agency of the State and open to the use of all on equal terms. 13 This express language suggests that a preference based solely on residency, without resort to looking at the cost to recapture local investment and the benefits incurred, would violate the terms of this Act. This Act was also discussed in the Alaska Riverways case and imposes a limitation on fees as follows: No taxes, tolls, operating charges, fees, or any other impositions whatever shall be levied upon or collected from any vessel or other water craft, or from its passengers or crew, by any non - Federal interest, if the vessel or water craft is operating on any navigable waters subject to the authority of the United States, or under the right to freedom of navigation on those waters:14 The law allows a non - federal entity, like the City, to charge some fees. The Act allows for "reasonable fees charged on a fair and equitable basis that (A) are used solely to pay the cost of a service to the vessel or water craft; (B) enhance the safety and efficiency of interstate and foreign commerce; and (C) do not impose more than a small burden on interstate or foreign commerce ...... 15 10 50 C.F.R. § 86.31. I I have no specific knowledge whether the City has or has not received any BIG funds. 12 33 U.S.C. § 551. 13 Id. (emphasis added). 14 33 U.S.0 § 5(b). is Id. Memorandum on Ordinance No. 2559 -2011 Page 7 of 9 Page 118 of 272 Thus, under this law, there is a serious issue presented with respect to this ordinance. A fee structure for boat launching that does not meet this standard would violate this Act and would be overturned by an Alaska court, just as it overturned the lease fee structure in the Alaska Riverways case. The best chance for a fee structure to be upheld would be where the City could show that the fee is based on the cost of the service and where any discount or differential fee reflects a resident's economic support of that service and is a recapture of expenditures already made by the residents of the City. C. What is a "Resident" as That Term is used in Ordinance No. 2559 -2011? Council Member Moore also asked for a definition of "resident" as used in the ordinance. The Kenai Municipal Code does not define the term "resident," and there is no definition of the term in this ordinance. Without some other definitions or description, a court would likely apply this same standard to interpret the meaning of the word "resident" in this ordinance. Without a definition, the term "resident" would be given its common understanding, drawn from statute, regulation, and court decisions. So, for example, a court would look at Alaska Statute 1.10.055. That statute describes how a person establishes residency in the state for general purposes. A person demonstrates the required intent to make their home in the State by maintain a principal place of abode here for at least 30 days (or longer if required by another law or regulation) and by providing other proof of that intent as may be required bylaw or regulation.76 The Alaska Statutes also describe how to determine the residence of a voter for purposes of elections. 17 The residence of a person is that place where the person's habitation is fixed and, whenever absent, they have an intention to retum.18 This also reflects a more common understanding of a resident as someone who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence ... together with indicia that his presence ... is something other than merely transitory in nature.19 16 AS 01.10.055(b); AS 15.05.020 (rules determining residence of a voter). 17 AS 15.05.020. 18 Id. 19 Black's law Dictionary (5`h Ed.) p. 1177 (1979). Memorandum on Ordinance No. 2559 -2011 Page 8 of 9 Page 119 of 272 In sum, the concept of "residence" has a common legal understanding. It means a person has formed an intent to remain in a place indefinitely as their permanent dwelling place .20 Without further definition within the City's Code a resident of the City of Kenai should be similarly understood. As drafted, there would not be a period of residency required before a person could take advantage of the resident preference proposed. A resident of the City should be considered a person physically present in the City and who has the intent to remain in the City indefinitely and to make the City their home .21 If the Council desired, it could amend the ordinance to impose a reasonable time before one can establish residence (such as 30 days). The Council could also use some other standard to provide a preference, such as "property owner" or "registered voter." My understanding of Council Member Boyle's intention, however, was that the provision of free services for residents be applied broadly to reach as many people as possible. The draft language reflects this intent. It also furthers Council Member Boyle's intent to provide the Administration with leeway as to how best to work out how to process requests for free service based upon residency. CONCLUSION An all -out resident preference like that proposed in Ordinance 2559 -2011 clearly violates the public trust doctrine with respect to the boat launch. Whether a resident preference for the parking area violates the public trust doctrine is a tougher question as the land on which the parking area is place is above mean high water. Alaska courts have not spoken directly to this issue. The City would be making new law if it adopted the ordinance and it was challenged. Much would depend upon whether a court found that the parking was required to provide for the public's use and access of the tidelands and whether the supreme court would extend the doctrine to upland areas. As for funding, I have concerns that the resident preference as proposed would violate the Rivers and Harbors Appropriation Act. There is a less substantial question about how the Department of the Interior might view the preference in light of the reverter clause in the patent conveying the land to the City. L:\Council\public.trust.boat.launch.05271 I 20 Perito v. Perito, 756 P.2d 895 898 -99 ( Alaska 1988 ) (interpreting prior statute defining intent to remain permanently to be understood as "indefinitely"). 21 Temporary work sites, post office boxes and private mail services do not create residence. For purposes of this ordinance, residency could be evidenced in a variety of ways to be determined by the Administration (utility bills, voter registration, driver's license physical address). Memorandum on Ordinance No. 2559 -2011 Page 9 of 9 Page 120 of 272 Suggested by: Council Member Mike Boyle CITY OF KENAI NO. 2559 -2011 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI,ALASKA,m ENDING KENAI MUNICIPAL CODE SECTION 11.05.050, "CONDITION AS TO UAL SERVICES AND RATES," TO REQUIRE THAT THE CITY PROVIDE SIDENTS OF THE CITY OF KENAI WITH FREE SERVICES AT THE CITY -OWN BOAT LAUNCH AND PARKING FACILITY. WHEREAS, the City has put into place certain fees for taking advantage of City - provided services at the City -owned and operated boat lauy(ch facility; and, WHEREAS, although the City of Kenai Dock launching /amps and floats are facilities that provide access to waterways for the entire public,/the costs of operating these facilities are supported not only from user fees but b the residents of Kenai who support governmental operations through taxes; WHEREAS, it is in the best interest of the City acknowledge the contributions of the residents of the City of Kenai in payment of tax s by offering free City services at the City's boat launch and floats. NOW, THEREFORE, BE IT ORDAINED BY ALASKA, as follows: / Section 1. Form: This is a Code Section 2. Amendment Municipal Code, Section amended as follows: COUNCIL OF THE CITY OF KENAI, if the Kenai Municipal Code; The Kenai as to equal services and rates, is hereby 11.05.050 Condition as to fival services and rates. It shall be a conditi I C f all permits granted by the City Council that the facilities to be constructs and the services to be supplied in connection with them shall be made available 0 all carriers upon equal terms, at equal rates, and without discrimination of anv kifid, Notwithstanding, the Citv shall Drovide services at its charge. Section 3. Severa ili : If any part or provision of this ordinance or application thereof to any per on or circumstances is adjudged invalid by any court of competent jurisdiction, suc judgment shall be confined in its operation to the part, provision, or application dj tly involved in all controversy in which this judgment shall have been New 'text Underlined; [DELETED TEXT BRACKETED] Page 121 of 272 /! Ordinance No. 2559 -2011 Page 2 of 2 rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: Pursuant to KMC 1. 15.070(f), this ordinance shall take effect one month after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this first day of June, 2011. ATTEST: Carol L. Freas, Ci New Test Underlined; [DELETED TEXT BRACKETED] Page 122 of 272 ` %Ila�e with a Past, C# with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 11111 1992 v MEMO. TO: Mayor Pat Porter Council Members Bob Molloy, Joe Moore, Ryan Marquis, Terry Bookey, and Brian Gabriel FROM: Vice Mayor Mike Boyle DATE: May 12, 2011 SUBJECT: Ordinance No. 2559 -2011 -- Providing free boat launch and parking services to City of Kenai Residents At the May 4, 2011 Council meeting, I stated that I was working on an ordinance to provide free services to City residents related to the City's boat launch facility. I now propose for introduction Ordinance No. 2559 -2011. This ordinance would require the City to provide free boat launch and boat launch parking to City residents. My hope is that the Council would introduce and adopt the Ordinance in time for residents to benefit from free service during the height of summer recreational activities. The Ordinance could go into effect as early as July 1 with the typical public hearing schedule. (The Council could later amend the fee schedule to reflect the "no charge" rule at some point in the future so that the Code and the fee schedule are consistent.) The Council has been involved in discussion of the Public Trust Doctrine in the past. As this issue does not deal with beach access or parking on the beach, I do not feel the Doctrine applies to this ordinance. By focusing on this service and facility constructed by the City with taxpayer funds I believe that, if challenged, the ordinance would be validated. The ordinance is also supported by the otherwise reasonable charges for this service in general and the fact that residents are supporting the facility through their tax dollars. Thus, I feel the City should pursue this matter. Page 123 of 272 MEMORANDUM D�lt4lt9' CITY OF KENAI it Oil ear q .4,t 210 FIDALGO AVE., SUITE 200 KENAI, ALASKA 99611.7794 TELEPHONE 907 - 283.7535 FAX 907.283.3014 M p, 'IIII' 199! TO: Linda L. Snow, City Manager FROM: (_41 Cary R.' City Attorney DATE: September 5, 2003 RE: Beach Parking Fees and the "Public Trust Doctrine" The Council requested a memorandum outlining our options regarding differential beach parking fees, regulation of beach access and the "Public Trust Doctrine." My analysis follows. The Public Trust Doctrine The public trust doctrine, originated in Roman Law, was incorporated into English Common Law and then made part of American Law by the United States Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387,13 S.Ct. 110, 36 L.Ed. 1018 (1892). In Illinois Central Railroad, the Court held that the states hold tidelands (land in between the mean high water and mean low water mark) "in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." Id. at 452. The doctrine means there is a public use easement on tidelands between the mean high and low water marks. The easement is flexible in that it moves with the changes in the location of the water marks due to erosion, accretion or reliction.1 1988 Alaska Op. Atty. Gen. (inf.) 351. For example, if the mean high water mark moves inland because of erosion, the public use easement moves with it. Some courts have even expanded the doctrine to include the "dry beach" above the ordinary high water mark. For example, Oregon and Texas have expanded the doctrine to include beach use up to the vegetation line. State ex rel Thorton v. Hay, 462 P.2d 671 (Or. 1969); Hirtz v. Texas, 974 F.2d 603 (5 " Cir. 1992). Other courts have expanded the public trust doctrine to include access to publicly owned beaches and recreation. Matthews v. Bay Head Imp. Assn, 471 A.2d 355 Page 124 of 272 Linda L. Snow, City Manager September 5, 2003 Page 2 of 4 (N.J. 1984) cert. denied Bay Head Improvement Assn v. Matthews, 469 U.S. 821, 105 S.CI. 93, 83 L.Ed2d 39 (1984; Van Ness v. Borough of Deal, 393 A.2d 571 (N.J. 1978); Hyland v. Borough ofAllenhurst, 393 A.2d 579 (N.J. 1978). The Alaska Supreme Court recognized the public trust doctrine in CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115 (1988). Lands conveyed by the states to municipalities and private parties are conveyed subject to the public trust doctrine. 1989 Alaska Op. Arty. Gen. (Inf.) 309, 1988 Alaska Op. Ally. Gen. (Inn 351. Thus, the beaches on both the south and north sides of the Kenai River are subject to the public trust doctrine. Fees and Regulation The public trust doctrine does not mean that states and municipalities may not regulate tideland beach use. People v. Deacon, 151 Cal. Rptr. 277, 87 Cal.App.3d Supp. 29 (1978)(state can prohibit motorcycle access to beach). In Lusardi v. Curtis Point Property Owners Assoc.,430 A.2d 881, 888 (NJ 1981), the New Jersey Supreme Court stated that the public trust doctrine: ... does not mean that the township may not, through more precisely drawn zoning or other regulations, achieve its valid objectives of avoiding unnecessarily disruptive behavior, overcrowding, littering, or of protecting environmentally fragile oceanfront property, such as irreplaceable sand dunes, for the benefit of future generations. Municipalities may charge fees to recoup the cost of maintaining the beach and reasonably regulate the number of people on and the manner of access to the beach in order to protect the beach from harm. Neptune City v. Avon -By -The Sea, 294 A.2d 47 (N.J. 1972). However, courts hold that the fees charged for use of the area covered by the public trust doctrine must not discriminate between residents and non - residents. Hyland v. Borough of Allenhurst, 393 A.2d 579 (N.J. 1978); Van Ness v. Borough of Deal, 393 A.2d 571 (N.J. 1978). Seasonal rate discounts, as long as they do not unduly discriminate against non- residents, are allowed. Sea Isle City v. Caterina, 303 A.2d 351 (N.J. Cty. Ct. 1973). Some courts have held that differential fees for residents and non - residents for man -made facilities above the dry beach (mean high tide line) are allowed if alternative ways (not charging differential fees) are available to use or access the beach areas. Hyland v. Borough ofAllenhurst, 393 A.2d 579 (N.J. Sup. Ct. 1978); Zaroogian v. Town ofArarrangansett, 701 F.Supp. 302 (D.RI 1988). The parking lots on the north and south sides are both above the mean high tide. However, an issue with them is whether there is reasonable alternative access to the fishery other than using the parking lots. Therefore, there is a question whether charging differential parking fees for residents and non - residents would be allowed. Fees must be reasonably related to the cost of upkeep and maintenance of the beach and related facilities. City of New Smyrna Beach v. Board of Trustees, 543 So. 2d 824 (Fla. App. 1989). A municipality may not supplement its non - beach - related general fund revenue with fees from uses Page 125 of 272 Linda L. Snow, City Manager September 5, 2003 Page 3 of 4 of beach and beach - related facilities. Slocumb v. Borough of Belman, 569 A.2d 312 (N.J. Super. L. 1989) Alaska Constitution and Beach Access Article VIII, § 14 of the Alaska Constitution states, "Free access to the navigable or public waters of the State, as defined by the legislature, shall not be deni -.d any citizen of the United States or resident of the State, except that the legislature may by general law regulate and limit such access for other beneficial uses or public purposes." This clause has been interpreted to be Alaska's own version of the public trust doctrine incorporated in our state constitution. Alaska's Constitution -A Citizen's Guide, p.163 (Gordon S. Harrison 1992). Restrictions on tideland access must be for a public benefit. In his book, Mr. Harrison gives the following example: The state may keep people away from a lake that supplies drinking water to a town, or impair navigation on a river by building a dam. But it may not prevent the public from fishing in certain streams in order to protect the interest of a nearby private lodge. Supra at 163. There is strong public policy in favor of public access to the tidelands under both state and federal law. However, that does not mean the City may not take reasonable regulatory actions regarding beach access. The intent of Article VIII, S 14 has been incorporated into the Alaska Statutes (AS 38.05.126(c). That section states: Ownership of land bordering navigable or public water does not grant an exclusive right to use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or cable of being used consistent with the public trust. AS 38.05.128(d) states: "Free passage or use of any navigable water includes the right to use land below the ordinary high water mark to the extent reasonably necessary to use the navigable water consistent with the public trust." The word "free" in the above passages regards eliminating access rather than a monetary context. Since Article VIII, §14 was intended as Alaska's version of the public trust doctrine, it is reasonable to interpret it and the statutes implementing it in the same manner as the public trust doctrine has been interpreted. The City may place reasonable conditions on the use of and access to the tidelands, but it cannot completely prevent them unless such use and access would be completely unreasonable. 1985 Alaska Op. Atty Gen. (Inf.) 445. Conclusions Page 126 of 272 Linda L. Snow, City Manger September 5, 2003 Page 4 of 4 Because of the case law restricting differential fees for residents and non - residents, it would be better to give a discount for a season pass. 2. The City may restrict vehicular traffic on the tidelands if the vehicles are creating environmental or public harm (overcrowding or safety of people on the beach). As you know, the City has restricted vehicle access on the north side for such reasons for years. But it may not restrict public vehicular access solely for the benefit of private landowners. 3. It may charge access or parking fees for the beach if the fees are reasonably based upon costs the City incurs in maintaining the beach. 4. It may also make regulations to control such things as littering, overcrowding and sanitation. Please let me know if you have any questions. CRG /sp cc: Chuck Kopp, Chief of Police Bob Frates, Parks and Recreation Director Reliction is the gradual recession of water leaving the land permanently uncovered. Accretion is an increase of land by natural forces. Page 127 of 272 OW1149e with a Past, C# with aFr we �• 210 Fidalgo Avenue, Kenai, Alaska 99811 -7794 Telephone: (907) 283 -7535 / Fax: (907) 28 3-3014 www.ci,kenai.sk.us MEMORANDUM TO: Mayor Porter and the Kenai City Council FROM.69 Cary R. Graves, City Attorney DATE: May 11, 2007 RE: Public Trust Doctrine and Differential bees INTRODUCTION Councilor Molloy requested I update my previous research regarding the Public Trust Doctrine and beach parking fees My previous memoranda on the doctrine were done in 2002 and 2004. I took this opportunity to take a fresh look at my earlier research. This memorandum is longer than I anticipated but I felt it was necessary to give the Council sufficient background regarding the doctrine. THE PUBLIC TRUST DOCTRINE The Public Trust Doctrine is a legal doctrine which "provides that public trust lands [tidelands], waters, and living resources in a State are held by the State in trust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses... The doctrine articulates not only the public rights in these land and waters; it also sets limitations on the States, the public and private owners, as well as establishing duties and responsibilities of the State when managing these public trust assets." 1 The public trust doctrine originated in Roman Civil Law, In 530 A.D., the "Institutes of Justinian" contained a provision stating: "By the law of nature these things are common to all mankind; the air, running water, the sea and consequently the shores of the sea.'o It was incorporated into English Common Law and made part of American Law by the United States David Slade, eL al., Putting the Public Trust Doctrine to work, p. 3, (Second Edition 1997) ' The Public Trust Doctrine: A Gift From a Roman Emperor, David C. Slade, hur)� /www. w3D .om /iisucalOaubstrustdoc.htm1. Metro Page I of 6 5/11/2007 1291 PMI Public Trutt Doctrine and Ditiercntial Fees U:1Mr Doeuments%CounetlTuhlic Trust Memo 0507.doc 144 Page 128 of 272 Supreme Courtin Illinois Central'Railroad v. Illinois, 146 U.S. 387,13 S.Ct. 110, 36 L.Ed 1018 (1892). The doctrine means that there is a public use easement on tidelands between the mean high and low water marks. The easement is flexible in that it moves with the changes in the location of the water marks due to erosion, accretion or reliction.3 For example, if the mean high water mark moves inland because of erosion, the public use easement moves with it.4 The case law on the public trust doctrine deals with two separate areas of the beach. The distinction is important. The "wet beach" is the area between the mean high and low water marks. The "dry beach" is the beach area above the mean high water mark. In this case the city boat launch would be part of the wet beach and the city parking lots would be part of the dry beach, In Illinois Central Railroad the supreme court held that the states hold tidelands (land in between the mean high water and mean low water mark) "in trust for the people of the state that they may enjoy the navigation of the water, carry, on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties." s Each individual state has the right to define what lands are included in the doctrine and what rights are protected by it 6 Oregon, for example, considers the tideland area covered by the doctrine to be from the mean low tide mark to the visible line of vegetation, not the mean high tide line .7 Initially, the doctrine only required public access for fishing, hunting and navigation for the wet beach. However, since the Illinois Central Railroad decision, most courts have expanded the public trust doctrine to include wet beach access to publicly owned beaches for swimming and recreations Beginning in the early 1800s and continuing until twenty -first century courts have struck down municipal attempts to restrict use of the wet beach area to local residents only. 9 Courts in Massachusetts and Maine have not included the right to wet sand beach access for swimming and recreation as part of thew states' public trust doctrine. Those rulings are based on courts' findings that colonial residents of the area did not use beaches for bathing and hence acquired no such public access right under colonial ordinances. However, residents of those ' Re6ction is the gradual recession of water leaving the land permanently. Accretion is an increase of land by net=] forces. e 1988 Alaska Op. Arty. Gets (inf.) 351. ' 146 U.S. at 452. ' Phillips Petroleum v. Mississippi, 484 U.S. 469, 475 (1988); Cavanaugh Y. Town ofNarragansert, 1997 RA. Super. LEXIS 113, (N.J. Super. Ct. 1997). 'State ex rel Thonon v. Hay, 462 P.2d 671 (Or. 1969). ' Borough of Neptune City v. Borough of Avon by-the Sea. 294 A.2d 47 (N.J. 1972)(Public trust doctrine includes use for recreation, swimming, bathing and other shore activities), White v. Hughes, 190 So. 446 (Fla. 1939)(Doctrine includes right to use area for bathing and swimming). ' Havden v. Noyes, 5 Conn, 391, 397 (1824)(Striking down town law restricting use of local fishery to town residents only); Levdon v. Town ofGreemvich, 750 P.2d 1122, 1126 (Caen. App. 2000) affd on other grounds, 777 A.2d 552 (Conn. 2001). (Restriction of municipal beach use to town residents only was illegal under the Public Trust Doctrine); GerwW v. 09, of Long Beach, 69 Misc. 2d. 763, 530 Zed 495 (1972 N.Y. Misc.). AAemo Page 2 of 6 511112007 1208 PM Public Trust Doctrine mid Differential Fees 1 .,Wy DocurnMACouncihPublic Trutt Memo OVA= 145 Page 129 of 272 states do have the right to access the wet beach area for "fishing, fowling, and navigation ".la Interestingly, the public trust doctrine in New Hampshire (whose coastline is located in between that of Maine and Massachusetts) does grant its residents the right to use wet beach area for recreational purposes. 11 In California, the public trust doctrine includes, `the right to use California's water resources for: navigation, fisheries, commerce, environmental preservation and recreation; as ecological units for scientific study; as open space; as environments which provide food and habitats for birds and marine life; and as environments which favorably affect the scenery and climate of the arcs „12 The United States Supreme Court has noted that caution should be applied in applying the case law from one state to cases arising in another because, "Each state has dealt with the lands under the tidewaters within its borders according to its own views ofjustice and policy. "13 Except for Maine and Massachusetts, the modern trend is for states to broadly interpret the public's rights under the doctrine. 14 BEACH ACCESS AND FACILITIES FEES The Public Trust Doctrine does not mean that municipalities may not regulate the wet beach area. In Lusardi v. Curtis Point Property Chvners Assoc. 439 A.2d 881, 888 (N.J. 1981) the New Jersey Supreme Court stated that the public trust doctrine: [D]oes not mean that the township may not... achieve its valid objectives of avoiding unnecessarily disruptive behavior, overcrowding, littering, or of protecting environ- mentally fragile oceanfront property, such as irreplaceable sand dunes, for the benefit of future generations. The problems can be alleviated through reasonable ordinances directed at specific abuses and through the use of the general police power. Municipalities may charge fees for use of the public trust wet beach area. is The general rules are that the fees must be reasonable,1' not discriminate against out of town residents, 7 and designed to fund the maintenance and operation of the beach arm 18 In Avon, the New Jersey Supreme Court noted that, "while municipalities my validly charge reasonable fees for the use of their 'o Opinion ofJusiices, 437 A.2d 597 (Me. 1981); Bell v. Inhabitants of Wells, 1987 Me. Super. LGaIS 256 (Me. Super. CL Sept. 14 1987); Opinion of Justices, 313 N.E.2d 561 (Mass. 1974). '"' Opinion glJustices, 139 N. H. 82 (1994). 'California State Land Commission, California's Rivers, A Public Trust Report- Executive Summary vi (1993). 13 Shiveiy v. Bowlby. 152 U.S. 1, 26, (1894). " Robert George, Comment: The "Public Access Doctrine ": Our Constitutional Righl To Sun, Surf; and Sand. 11 Ocean & Coastal Low Journal 73, 77 (2005/2006). "State ofWisconstn v. Linn, 556 N. W. 2d 394 (Wise. App. 1996)(Bom launch fees allowed); Ciry ofNtnvSmyrao Beach v. Board of Trustees, 543 So. 2d 824 (Fla. Dist. 1989)(Upholding beach access fee for motor vehicles); 'E Borough of Neptune City v. Borough of Avon -by -the Sea, 294 A.2d 47 (N.1. 1972) Van Ness v. Borough of Deal, 393 A.2d 571, 572 (N.J. 1978). "Slocum v. Borough of Belmar, 569 A.2d 312, 316 (N.J. Super. Ct 1989)(Publit access fee allowed to fund maintenance of beach area). Meow Page 3 o: 6 5111/2007 14:09 PM Public Trust Doctrine and Differential Fees tl :\My Documenti\CoencilTublic Trust Memo 0507.doc 146 Page 130 of 272 beaches, they may not discriminate in any respect between their residents and non - residents. "19 Seasonal rate discounts or discounted ticket booklets are allowed as long as they do not unduly discriminate against non- residents.20 In New Jersey the courts have held that where the dry beach area and facilities are reasonably necessary to utilize the access to the wet beach, municipalities may not discriminate in fees between residents and non-residents. 21 In reaching that conclusion, the New Jersey Supreme Court held that use of the dry land facilities can be inseparable from use of the wet beach-22 In Connecticut, an appellate court has indicated that a higher fee for non - residents might be legal, but only if any non - resident surcharges were minimal. Some states have allowed higher non - resident fees. An Illinois court has held that charging a higher moorage rate to non - residents was legal if the fee was designed to equitably recapture a fair share of the capital and operational costs otherwise born by the taxpayers.. In Rhode Island; a lower court held that charging a higher non - resident fee was allowed under that state's public trust doctrine, but only as long as out of state non - residents paid the same fee as in state non - residents 25 A federal district court in Rhode Island held that municipalities could discriminate between residents and non - residents regarding use of the beach.26 However, that opinion is very questionable because the court did not even mention the Public Trust Doctrine in its legal analysis. PUBLIC TRUST DOCTRINE IN ALASKA Article VIII, §14 of the Alaska Constitution states, "Free access to the navigable or public waters of the State, as defined by the Legislature, sball not be denied any citizen of the United States of resident of the state, except that the Legislature may by general law regulate and limit such access for other beneficial uses or public purposes." 27 This clause incorporates the Public Trust Doctrine into Alaska's constitution." AS 38.05.126(a) explains that constitutional right and provides that, "The people of the state have a constitutional right to free access to and use of the navigable water of the state." In Alaska, lands conveyed to municipalities by the state are subject to the public trust doctrine 29 The Public Trust Doctrine places conditions on the use of city owned beach property that do not 1 s Avan. 294 A.2d at 56, 24 Sea isle City v. Caterina, 303 A.2d 351 (N.J. Cty. Ct. 1973). t' Raleigh Beach Association v. Atlantis Beach Club, Inc., 879 A.2d 112, 120 (NJ. 2005). Z' Lusardi Y. Curtis Point Property Owners Assn, 430 AM. 881 (N.J. 1981). " Brenden v. Town ofGreemvich, 750 A.2d 1122, n. 10 (Conn. App. 2000) oral on other grounds 771 A2d 552 (Conn. 2001). 19 Broeckl v. Chicago Park District, 544 N.E.2d 792 (Ill. 1989). xs Cavanaugh v.Toan ofNarrangansett 1997 R.I. Super. LEXIS 113 (R.I. Super. Ct. 1997). u Zaroogian v. Narrangansed, 701 F. Supp 302 (D. R.I. 1988) r Article Vill, sections 1,2,3,6,13 of the Alaska Constitution also embody the principles of the public trust doctrine. Gordon S. Harrison. Alaska's Constitution•A Citizen's Guide, p. 163 (Third Edition, 1992). as CWCFisheries, Inc. v. Bunker, 755 P.2d 1115 (Alaska 1988); 1989Alaske Op. AM . Gen.(Inf.) 309, 1988Aiaska Op. Atty.Gen. (Irrf,) 351. Memo Page 4 of 6 511112007 12:08 PM Public Trust Doctrine end Differential Fees U.-ft Documents \CouneiN'ublic Too Memo 0507.doe 147 Page 131 of 272 apply to other property owned by the city 30 Alaska's Supreme Count has stated that tidelands in Alaska are subject to a public trust easement 31 The easement is the "right shared by all to navigate on waters covering foreshore [tidelands] at high tide, and, at low tide, to have access across foreshore [tidelands] to waters for fishing, bathing or any other lawful purpose. "32 Restrictions on tideland access must be for a public benefit, One scholar notes that, "the state may keep people away from a lake that supplies drinking water to a town, or impair navigation on a river by building a dam. But it may not prevent the public from fishing in certain streams in order to protect the interest of nearby private lodges.s33 There is strong public policy in favor of public access to the tidelands under both state and federal law. The Alaska Supreme Court has held, "the provisions of Article Vlll were intended to permit the broadest possible access to and use of state waters by the general public. "34 The intent of Article VIII, §14 has been incorporated into AS 38.05.126(c). That section states: Ownership of land bordering navigable or public water does not grant an exclusive right to use of the water and a right of title to the land below the ordinary high water mark is subject to the rights of the people of the state to use and have access to the water for recreational purposes or other public purposes for which the water is used or capable of being used consistent with the public trust. AS 38.05.128(d) states: "Free passage or use of any navigable water includes the right to use land below the ordinary high water mark to the extent reasonably necessary to use the navigable water consistent with the public trust." The term "free passage" in the above section refers to unblocked access rather than a monetary context. The City may place reasonable terms and conditions on the use and access to the tidelands 35 However, tidelands owners may not exclude the public from use of the tidelands for navigation, fishing, or cornmerce.36 Individual states are free to establish the parameters of their own public trust doctrine.37 In Alaska, land held under the public trust doctrine is held for the benefit "of all the people of the state., "31 There are no controlling cases in Alaska clearly establishing whether higher non-resident boat launch and parking fees would be allowed under this state's version of the Public Trust Doctrine. Predicting how courts mill rule on issues where there is no clear controlling precedent is a risky " William H. Danne, Jr. Annotation, Power ofmunicipality to charge nonresidents higherfeea than residents for use of municipal facilities. 57 A.L.R. M 998. '" Owsichek v. Guide Licensing & Control Boorg 765 P.2d 483, 494 (Alaska 1998) The public's legal interest in use the wet beach is sometimes referred to as the jus publicum. 71 Seejus publicum,Black's Law Dictionary (5's Ed. 1979). "Gordon S. Harrison, Alaska's Constitution -A Citizen's Guide, p.163 (Third Edition 1992). Wernberg v. State, 516 P.2d 1191, 1198.1199 (Alas)a 1973). " 1985 Alaska Op. Arty. Gen. (Inf.) 445. "755 P.2d at 1121. 152 U.S. at 26; 755 P.2d at 1121. 's Gregory F. Cook, The Public Trust Doctrine in Alaska Vol 8(1) The Journal of Environmental Lew and Litigation i (1993)(The author was kind enough to discuss his article with me via telephone from Juneau on May 9• 2007). Memo Page 5 of 6 51110-007 12:08 PM Public Trust Doctrine and DlMMLial Fees U:1My DommenrslCouncirWublie Trust Memo 0507.doc 148 Page 132 of 272 i business. Such predictions are in reality just educated guesses. With that in mind, the following is my opinion on how Alaska courts would approach this issue. The boat launch is clearly covered by the public trust doctrine. Whether the dry beach parking lots are covered will depend on whether a court feels they are necessary for reasonable access to and use of the wet beach. While reasonable people could certainly disagree, I believe the courts would find them subject to the public trust rules. Whether the court would allow a differential non - resident fee depends (in my opinion) on the following: 1) whether the court felt the fees were an attempt to give Kenai residents preferential access to and use of resources (wet beach, the fishery, and use of the river and ocean) that are held in trust for all state residents; or 2) whether the court felt non - resident fees were a legitimate attempt to fairly recapture capital expenditures already paid for by city residents. If a non - resident fee is established, it should be designed to recapture capital expenditures and must be based on a detailed financial analysis 79 The "Carlson Litigation" was a class action challenging higher state fees for out -of -state fishing licenses. The litigation was filed in 1984 and has been to the state supreme court three times; most recently in 2003; almost twenty years after it started.4' In that case the state supreme court struck down the original fee and awarded damages and attorney's fees. It held a higher non - resident fee could be used, but set down a detailed methodology for how any higher fee could be calculated to recapture costs. SUMMARY Because public trust property is held for all residents of the state, courts will closely scrutinize any higher non - resident fee. However, a non - resident differential fee is defensible if it is designed to recapture capital expenditures and is based on a detailed financial analysis. ss operational costs are not mentioned because the fees recently provided a surplus over-operational costs. an Carlson v. Slate, 498 P.2d 1269 (Alaska 1990): Carlson v. Commercial Fisheries Entry Commission, 919 P.2d 133', (Alaska 1996); and Slate Y. Carlson, 65 P.3d 951 (Alaska 2003). The United States Supreme Court has declined to hear the appeals on the cases. Carlson v. Alaska Commercial Fisheries Entry Commission, 519 U.S. 1101, 117 S.Ct. 789, 136 L.Ed. 2d 730 (1997) and Carlson v, Alaska Commercial Fisheries Entry Commission. 540 U.S. 963, 124 S. Ct. 387,157 L.Edrd 305 (2003). 171e Carlson Litigation did not concern the Public Trust Doctrine. it dealt with federal constitutional issues regarding the privileges and immunities and commerce clauses of the United States Constitution. Memo Page 6 of 6 5/112007 12:10 PM Public Trust Doctrine and Differential Fees U:IMy DocumentACoundhPublic Trust Memo 0501doe 149 Page 133 of 272 MEMORANDUM - ,Italy- ' If c9d CCpdkd 4 ` " 96 210 FIDALGO AVE,, SUITE 200 KENAI, ALASKA 99611 -7794 TELEPHONE 907 - 283 -7535 FAX 907- 283 -3014 nwn 19R: TO: Mayor Williams and Councilors FROM: C tZ Cary R. Graves, City Attorney DATE: September 9, 2004 RE: Beach Parking Fee Discounts for City Residents Councilor Moore asked me to research the feasibility of giving city residents a discount for beach parking fees during dipnet season. The Public Trust Doctrine The public trust doctrine originated in Roman law. It was incorporated into English Common Law and made part of American Common Law by the United States Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387, 12 S.Ct, 110, 36 L.Ed 1018 (1892). In Illinois Central Railroad, the Court held that states hold tidelands (the land in between the mean high and mean low water marks) "in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have the liberty of fishing therein freed from the obstruction or interference of private parties." Id at 452. The doctrine means that there is a public access easement between the mean high and mean low water marks. The Alaska Supreme Court recognized the public trust doctrine in CWC Fisheries, Inc, v. Bunker, 755 P.2d 1115 (Alaska 1988). Lands conveyed by states to municipalities and private parties are conveyed subject to the public trust doctrine. 1989 Alaska Op. Atty. Gen (Inf,) 309, 1988 Alaska Op. Atty. Gen. (Inf.) 351. Thus, the beaches on the north and south sides between the mean high and mean low water marks are subject to the public trust doctrine. It is important to note that the City does not charge beach access fees; we charge parking fees for areas on both the north and south sides. The general rule is that fees charged in an area covered by the public trust doctrine cannot discriminate between city and non -city residents. Hyland v. Borough ofAllenhurst, 393 A.2d 579 (N.J. 1978); Van Ness v. Borough of Deal, 393 A. 2d 571 (N.J. Cty Ct. 1973). Some courts have applied that non - discrimination rule to city facilities above the mean high tide line if the facilities are needed to access the beach. Zaroogian v. Town Page 134 of 272 Mayor Williams and Councilor September 9, 2004 Page 2 of 2 ofNarrangansett, 701 F.Supp. 302 (D.RI 1988); Hyland, supra. The Alaska Supreme Court has not ruled on that issue. Seasonal rate discounts, however, are allowed even in areas covered by the public trust doctrine if they do not unduly discriminate against non - residents. Sea Isle City v. Caierina, 303 A.2d 351 (N.J. Cty. Ct. 1973). Because of the uncertainty of the propriety of differential parking rates for residents and non - residents, the council may wish to consider a seasonal rate discount, whereby a person (whether a city resident or not) could purchase a season pass for the parking areas at a discounted fee. Please let me know if you have any questions. CRG /sp Page 135 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 136 of 272 :., \_ Suggested by: Administration CITY OF KENAI NO. 2014 -56 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AUTHORIZING THE PURCHASE OF AIRPORT SNOW REMOVAL EQUIPMENT FOR THE TOTAL AMOUNT OF $543,706 UTILIZING THE NATIONAL JOINT POWERS ALLIANCE PURCHASING PROGRAM. WHEREAS, at its August 20, 2014 meeting, the Kenai City Council approved Ordinance No. 2788 -2014 appropriating the FAA grant offer to purchase an Oshkosh Plow Truck with attachments. WHEREAS, new upgraded equipment will improve the Airport's capability to effectively address snow and ice conditions with dependable equipment and ensure safe operations; and, WHEREAS, the National Joint Powers Alliance awarded a competitive bid for equipment that meets our specifications with Oshkosh; and, WHEREAS, FAA has approved the procurement process utilizing the National Joint Powers Alliance purchasing agreement; and, WHEREAS, sufficient monies are appropriated in the Airport Improvement Capital Project Fund. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, the City is authorized to purchase an Oshkosh Plow Truck with attachments for the total amount of $543,706. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August 2014. PAT PORTER, MAYOR ATTEST: Sandra Modigh, City Clerk Approved by Finance: l w Contingent on passage of Ordinance No. 2788 -2014 Page 137 of 272 ... Municipal Airport Memo VTo: Thru: From: Date: "SerVb4'W- 0t4?,'0reater Kevtow Peril VwW 305 N. WILLOW ST. SURE 200 KENAI, ALASKA 99611 FAX 907,783a737 Rick R. Koch - City Manager Terry Eubank — Finance Director Mary Bondurant — Airport ManaJ August 13, 2014 / Subject: Resolution 2014 -56 Purchase of Snow Removal Equipment This memo is in support of the above resolution awarding the purchase of the new Oshkosh plow truck with attachments to Oshkosh. The FAA recommended and approved the procurement process for joint purchasing under Agreement #102811 -OKC between the National Joint Powers Alliance (NJPA) and Oshkosh. The Airport had already determined the specifications for this equipment and was ready to move forward with the purchase when grant funds became available. This purchase will replace a worn out 1995 Oshkosh Plow Truck and provide a vital new piece of equipment that plows, scrapes, deices, and sands. If you have any questions, please contact me. Attachment www.kenaiairport.com. Page 138 of 272 VIA \\ _ , Suggested by: Administration CITY OF KENAI NO. 2014 -57 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, DESIGNATING THE STATE OF ALASKA, DEPARTMENT OF ENVIRONMENTAL CONSERVATION (ADEC) GRANT FUNDS FOR THE PROJECT ENTITLED WASTEWATER TREATMENT PLANT UPGRADES -PHASE II AS THE NUMBER ONE LOCAL STATE FUNDING PRIORITY FOR FISCAL YEAR 2016. WHEREAS, the City of Kenai through the State of Alaska, Department of Environmental Conservation requests grant funding under the Municipal matching grant (MMG) program; and, WHEREAS, the State of Alaska, Department of Environmental Conservation has requested that the City of Kenai identify if this project is the community's number one local state funding priority for fiscal year 2016; and, WHEREAS, the City's Wastewater Treatment Plant has operated in excess of twenty - five years without any major renovation and /or improvements; and, WHEREAS, technology has developed new equipment, regulations are increasingly stringent, the volume of wastewater treated by the plant has increased substantially, and the plant requires major upgrades to be able to maintain compliance with regulations; and, WHEREAS, The City has contracted with CH2MHi11 to design and prepare bid -ready documents for improvements identified in the "Kenai Wastewater Treatment Plant Master Plan," and the design is ongoing and approximately 65% complete. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, designates the Wastewater Treatment Plant Upgrades -Phase II as the number one local state funding priority for fiscal year 2016. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this twentieth day of August, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Page 139 of 272 M I'Villaye mM a Past, C# with a Future'/ MEMO* 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 �IIIII 199] TO: City Council FROM: Rick Koch, City Manager DATE: August 13, 2014 SUBJECT: Resolution 2014 -57, Alaska Department of Environmental Conservation (ADEC) Municipal Matching Grant (MMG) Program (SFY2016) The purpose of this correspondence is to recommend Council approval of Resolution 2013 -60. The ADEC MMG Program requires that each MMG questionnaire identify the priority for the project for which funding is being requested. The applicant receives 50 points for the number one ADEC funding priority. The City's number one ADEC MMG priority is a project to construct various improvements to the City of Kenai's wastewater treatment plant (WWTP. Attached is a copy of the summary information submitted to ADEC. Thank you for your attention in this matter. If you have any questions, please contact me at your convenience. Page 140 of 272 Application Review Pagel o1`5 Out)) nlrttcni of Lllvlronrnclltal Con1L(0110h Municipal Matching Grant Questionnaire SFY16 Tasks: 1. Complete Steps 2. Submit Your Current Entries: Kenai Wastewater Tracking #: FY16AMMG0055 Facility: Treatment Plant Type: Municipal Matching Upgrades -Phase II Grant Questionnaire Project lntormallon Details Project Title: Kenai Wastewater Treatment Plant Upgrades -Phase II Total Project Cost: 2,000,000 Requested Matching Grant Funds: 1,400,000 ;Project Scope: 2. Wastewater 1112roject Description: (Scope of Work to be funded under this grant) I This is the second phase of a five -phase project to upgrade and enhance the operational performance of the Kenai Wastewater Plant WWfP). Improvements included in the Phase II project include, but are not limited to, replacement of a screening solids removal system (pre- treatment, enhance basin aeration systems to increase operational and energy efficiency, replacement of an obsolete bell filter press and control systems, ,Project Needs (i 'Project Need: - ;ruu rts) i Required documentation is: Describe Issues and Benefits: Current conditions are severe enough that a pollution event could occur, but has not yet happened or been reported. (100 Pts.) Attached Periodic failure(s) of belt press result in excess moisture in sludge so that it cannot be transported to Landfill. This results in handling, storing, and re- introducing to system after the belt press has been repaired. Project Development Status (0 - 125 Pts) Details -- !Development Status 2. Substantial (65% or greater) engineering plans and specifications have been prepared and provided to ADEC. Required documentation is: Attached tComments: CH2MHIll is under contract with the City and is currently developing plans and specifications for this project. Attached are preliminary drawings and a copy of the Professional Services Agreement (PSA) with CH2MHill. https:Hdee.alaska.gov/ Applications /Water /OARfgPritiI ?I &ds.aspx 8/4/2014 Application Review Page 2 of 5 (Relationship to Other Project Phases (0 Details i- 100 Pts) Relationship to Other Project This construction project will make functional or complete the previous (Phases: phases that received funding from other funding sources. (75 Pts.) Required documentation is: Attached (Explanation Operators (0 -100 Pis) Details Is your drinking water treatment Yes (system operated by the correct level of icertified operators? (25 Pts. if Yes or if (not applicable) Drinking Water Treatment System William F. Leslie ,Operator Name !Drinking Water Treatment System Water Treatment - 3 ;Operator, Certification Type, and Level !Drinking Water Treatment System 14566 Operator Certification Number its your drinking water distribution Yes system operated by the correct level of certified operators? (25 Pts, if Yes or if not applicable) 'Drinking Water Distribution System William F Leslie !Operator Name Drinking Water Distribution System Water Distribution - 2 iOperator, Certification Type, and Level ,Drinking Water Distribution System 15799 ;Operator Certification Number its your wastewater treatment system Yes ,operated by the correct level of !certified operators? (25 Pts. if Yes or if not applicable) I Wastewater Treatment System Jerry Potter Operator Name 'Wastewater Treatment System Wastewater Treatment -; Operator, Certification Type, and Level Wastewater Treatment System 7162 Operator Certification Number Is your wastewater collection system Yes operated by the correct level of certified operators ?(25 Pis. if Yes or if !not applicable) Wastewater Collection System Brian Springer Operator Name Wastewater Collection System Wastewater Collection - 3 !Operator, Certification Type, and Level Wastewater Collection System 8563 ,Operator Certification Number Is your solid waste / stormwater system ,operated by qualified operators? (100 Pts, if Yes) Type, Organization, Date of Training: Not Applicable https: / /dec.alaska.gov /Applications /Water /0 )I)Ai&uglgcc;rds.aspx 8/4/2014 Application Review ;Operation Capabilities (0 -150 Pts) Drinking Water System 'Operations: (Wastewater system Operations: fSolid Waste Operations: Page 3 of 5 Details YES: Sample results are submitted to the State. (75 Pts.); OR YES: Wastewater permit requirements are being met by system. (75 Pts.); OR iauva au maeerIcr - a o5M (u Pty) Details select from the following Operation and Maintenance costs have been estimated for this project and have been found to be equal to or less than current costs. (50 Pts.) documentation is; Attached �raaons ana mannenance - mist ru - Details Pts) Has a rate analysis of the waterlsewer Yes lutilities been conducted within the last i5 years, or documentation can be provided that shows rates have been :reviewed during the annual budget 1process for cost of service? �(if Yes, 50 Pts.) Documentation is required; Copy of a irate analysis /study cover page, table of icontents and summary pages; or, a summary of annual budget documents !on a rate review." Is the most current user fee ordinance Yes ;provided? (if Yes, 50 Pts.) Documentation is required: Copy of ;ordinance summary documents. (Required documentation is: Attached ,Local Project Commitment (0 - 225 Pts) Are adequate funds available (now? Funding Source (1): Federal /State /Local; Funding Amount: Funding Year: Estimated Use Date: Funding Source (2): Federal /StatelLocal: Funding Amount: Funding Year: ;Estimated Use Date: Funding Source (3): Federal/State/Local: Funding Amount: ,Funding Year: Estimated Use Date: 'Rending Source (4): Federal/State/Local: Yes City of Kenai Water & Sewer Fund 570,000 Select Select Select https://dec.alaska.gov/Applicatioiis/Water/O.?SJWA'i - RIIU?Ords.aspx 8/4/2014 Application Review Page 4 of 5 IFunding Amount: Funding Year: lEstimated Use Date: IFunding Source (5): Federal /Statell-ocal: Select Funding Amount: IFunding Year: (Estimated Use Date: Federal funds as part financing? (if No !Yes, 75 Pts.) !If Yes, 75 Pts. Yes [if yes, amount: 612,373 If yes, 50 Pts. Ilf yes, amount: If yes, 25 pts. Yes Is this project your number one Yes requested state priority project? !if this is your number one priority, a Yes jCouncil resolution should be attached Ito this questionnaire identifying this ;project as your number one local state funding priority over all other projects this fiscal year. (if Yes, 50 Pts.) ('for Documentation is required, however a resolution may be submitted later (during the one week preliminary community project score review, iRequired documentation is: Attached Population Benefiting Ratio (5 -15 Pis) Details Requested Matching Grant Funds: 1.400,000 Population of Community 7200 'Benefiting: !Cost /Population ratio: 194 Select Appropriate Low cost/population benefiting Cost /Population Benefit: Project Costs Administration: Project Planning /Design: Engineering Managementllnspection Construction: Equipment: 'Other (Identify Cost): Amount: !Other (Identify Cost): Amount: Other (identify Cost): Amount: !Total Costs: (Sum of above) Contact Applicant, Cost Estimate Preparer Details 75,000 50,000 174,780 1,456,500 0 Contingency (15 %) 244,692 2,000,972 - - -- Name: Rick R Koch https: / /dec.alaska -gov /Applications /Water /OAc§W iitkRITW?ords.aspx 8/4/2014 Application Review '2009 APDES Inspection & B-4 -14 EPA iECHO Report.pdf 18.5.13 Ammonia Effluent Levels ADEC MMG SFY2018.pdf City of Kenai Wastewater Facility (Master Plan.pdf 184-14 SFY 2016 Cost Estimate lW WTP.pdf ,Kenai FY2015 Water-Sewer Fund 'Budget.pdf City Fee Schedule July 1 2014.pdf :Appendix la ACWF Funding Priority & tPlanning Lists.pdf �CH2MHil1 Drawing set to Kenai 7 -29 ;Scan.pdf 18 -4 -14 Resolution 2014- XX.pdf iCITY OF KENAI UTILITY :REGULATIONS.pdf CH2MHill PSA & Scope of Work.pdf Page 5 of 5 Title: City Manager Organization: City of Kenai Address: 4575 Kenaitze Court City: Kenai State: AK Zip: 99611 Country: USA Phone: (907)283 -8222 Cell: (907)398 -0190 Fax: (907)283 -3014 Email: rkoch @ci.kenai.ak.us Website: IWe (rype), Description Project Needs (Cost Analysis) Apri12009 APDES Inspection & August 4, 2014 EPA ECHO Report Project Needs (Cost Analysis) Comparison of City of Kenai Ammonia Effluent Levels with recent APDES Permit levels issued to Palmer. Relationship Project Phases - WWTP Master Plan (Project Development) WWTP Master Plan depicting identifying WWTP upgrade phasing, scope and estimated costs Kenai WWTP Upgrades Phase II Cost Estimate (Cost Analysis) Kenai FY2015 Water Sewer Fund Budget (Other) Included to demonstrate financial capability to undertake project. City of Kenai Schedule of rates, Charges & Fees (Project Funding) Pages 8 -11 include water and sewer fees which were updated on July 1, 2014 Appendix 1a ACWF Funding Priority & Planning Lists (Project Funding) The City of Kenai has submitted an application for an ACWF loan for this project CH2MHill Scoping Documents, Plans (Other) Initial Scoping review documents to supplement Master Plan. Resolution 2014 -XX FY2016 Number 1 Capital Prioty (Council Resolution) City of Kenai Water & Sewer Regulations (Other) CH2MHill PSA & https: / /dec.alaska.gov /Applications /Water /ORMM Plitttr' BfKVL;rds.aspx 8/4/2014 j "Villaye with a Past, C# with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907- 283 -7535 / FAX: 907- 283 -3014 I� 1992 Me city o f KENAI, ALASKA CITY OF KENAI NARRATIVE FOR ADEC SFY 2016 MUNICIPAL MATCHING GRANT PROGRAM The City of Kenai's Wastewater Treatment Plant (W WTP) was constructed in 1982. It was sized to accommodate a population of 11,650 people and an average wastewater flow of 1.3 million gallons per day (mgd). The present population of Kenai is approximately 8,000 and average wastewater flow is 0.90 mgd, or 70% of the plant design capacity. A Wastewater Facility Master Plan was completed in March 2004 by CH2MHill. The cost estimate for recommended improvements totaled $ 5,198,000 (in 2004 dollars) and were identified as being accomplished in four phases. Estimated costs have been increased by 32% to account for construction inflation. The four phases identified by CH2MHi11 are not consistent with the proposed phasing as a result of funding constraints and improvements that have already been accomplished. The issues to be addressed by this project are as follows: 1. The City's WWTP APDES permit extension has been submitted is under review by ADEC. Presently the City's permit does not specify a limit for ammonia in the wastewater plant discharge. Our research has shown that recent permit renewals have required relatively low ammonia levels for the effluent (i.e. Palmer). The ammonia levels in the City's W WTP discharge may fail to meet what appears to be the standard required by ADEC. 2. The existing sludge belt press is 28 years old, and is functionally obsolescent, it requires continuous maintenance and replacement must occur in the near future to maintain system reliability and compatibility with control systems. Because the City of Kenai ADEC SFY 2016 MMG Questionnaire W WTP Upgrades — Ph.II Page 146 of 272 W WTP has only a single sludge belt press the press cannot be taken out of service to accomplish major maintenance tasks. 3. Two of the aeration basins exhibit a structural failure of the concrete wall which separates the basin. There is a breach between the two and as such the two basins must be operated as a single unit. 4. The existing rotary screen has been removed from operation, resulting in excess solids being introduced into the treatment process. The screen has been removed from the process because it often clogged resulting in raw waste flowing onto the floor in the headworks facility. 5. The present system does not provide an efficient method to control aeration. Blowers provide three to four times the necessary oxygen to the aeration basins. 6. Existing course bubble diffusers are not efficient. 7. Existing system does not effectively manage sludge. The following is a description of improvements proposed under phase II of this project: Sludge Belt Press The installation of a new sludge belt press will provide for the old belt press to be out of service unless needed in an emergency. A new belt press and conveyer system will address the ADEC observation during the 2009 inspection that the transfer of solids to trucks resulted in solids falling onto the floor in the headworks facility. Solids Removal System The installation of a solids removal system to work in conjunction with the existing grinder will result in solids removal meeting the EPA paint test and significantly reduce air and energy demands on the treatment plant/system. Activated Sludge System Improvements Upgrade Fine Bubble Aeration Upgrade Aerobic Digester Blower System The blowers currently provide three to four times the necessary oxygen concentration to the aeration basins and there is no way to efficiently control this with the existing equipment. The installation of one small blower with a variable speed motor, the installation of variable speed motors on the existing blowers, the installation of a new control system, and replacing the coarse bubble diffusers with fine bubble diffusers will result in improved treatment and a significant drop in power consumption. 2. Upgrade Waste Activated Sludge (WAS) System City of Kenai ADEC SFY 2016 MMG Questionnaire W WTP Upgrades — Ph.II Page 147 of 272 Upgrade Return Activated Sludge (RAS) System The activated sludge treatment process works best when a steady low flow of sludge is returned to the aeration basin (RAS). The pumps currently in use return too much sludge in too short a time to the aeration basin resulting in system failures, increased maintenance and increased energy consumption. The WAS pumps currently in service are a progressive cavity type that requires frequent service. Replacement with a simple centrifugal pump system would lower maintenance costs and improve treatment efficiency by allowing a steady flow of sludge to the aerobic digestion tank rather than large intermittent flows. The upgrades to the RAS & WAS Systems, and the upgrades to the aeration system will significantly improve the performance of the WWTP in terms of decreasing the costs of aeration, improving the settleability of the sludge, and minimizing/eliminating permit non - compliance incidents. WWTP Building Upgrades (+ / -1,000 s.f.) The addition of a second sludge belt press, aeration improvements, and the installation of modern control systems will require extension renovation of space within the WWTP main building. Operations and maintenance costs will be reduced by as much as $200,000 per year as a result of improvements constructed under this project. City of Kenai ADEC SFY 2016 MMG Questionnaire WWTP Upgrades — Ph.II Page 148 of 272 Suggested by: Administration CITY OF KENAI NO. 201458 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AUTHORIZING A BUDGET TRANSFER WITHIN THE GENERAL FUND FOR THE PAYMENT OF BACK PROPERTY TAXES TO THE KENAI PENINSULA BOROUGH ON LAND TO BE RETAINED FOR A PUBLIC PURPOSE. WHEREAS, the City has identified parcels foreclosed upon by the Kenai Peninsula Borough for non - payment of property taxes as needed for a public purpose; and, WHEREAS, prior to retaining tax foreclosed property for a public purpose the City must pay the Borough portion of unpaid property taxes and other costs; and, WHEREAS, sufficient funds are available in the General Fund, Non - Departmental Contingency account for transfer. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, the following budget transfer be made: General Fund From: Non - Departmental - Contingency $10.000 To: Lands - Land � !G_ PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 20th day of August, 2014. PAT PORTER, MAYOR ATTEST: Sandra Modigh, City Clerk /� Approved by Finance: /1__ Page 149 of 272 "V llaye with a Past, C# with a Future" FINANCE DEPARTMENT 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907- 283 -7535 ext 221 / FAX: 907 - 283 -3014 VV\ To: Rick Koch, City Manager From: Terry Eubank, Finance Director Date: August 12, 2014 Re: Resolution 2014 -58 The purpose of this memo is to recommend adoption of Resolution 2014 -58 that will authorize a budget transfer within the General Fund for the payment of unpaid property taxes on parcels foreclosed upon by the Kenai Peninsula Borough which the City intends to retain for a public purpose. The five lots selected are Lots 12 through 16, Block 3. East Addition, Townsite of Kenai, also know as 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska. The property is intended to be retained for a public purpose as a staging area in support of bluff erosion control measures and, later, for parks and recreation put-poses. Page 150 of 272 Suggested by: Administration CITY OF KENAI NO. 2014 -59 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, DECLARING EQUIPMENT, SUPPLIES, AND MATERIALS SURPLUS OR OBSOLETE, AND TO BE SOLD AS ALLOWED IN KENAI MUNICIPAL CODE 7.15.060 AND 7.15.070. WHEREAS, the pieces of equipment, supplies, and materials listed on Attachment A are no longer needed by the City of Kenai; and, WHEREAS, Kenai Municipal Code 7.15.060 allows the sale of surplus or obsolete equipment, supplies and materials by auction, competitive sealed bid or an internet sale process; and, WHEREAS, a competitive sealed bid auction or internet sale process are reasonable and acceptable means of disposal of surplus and obsolete City property; and, WHEREAS, Kenai Municipal Code 7.15.070 allows the sale of surplus or obsolete equipment, supplies and materials without giving an opportunity for competitive bidding; and, WHEREAS, a non - competitive sale of surplus or obsolete supplies, materials, equipment, or other property, the value of which does not exceed one thousand dollars ($1,000.00) in a single transaction is a reasonable and acceptable means of disposal of surplus and obsolete city property; and, WHEREAS, the City will establish an acceptable sale price for the surplus supplies, materials, and equipment and offer those items for purchase at an advertised surplus sale to be held at the City Shop Yard. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that the items listed on Attachment A be declared surplus or obsolete, and that the items on Attachment A may be sold as provided in KMC 7.15.060 and 7.15.070. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 6th day of August, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Page 151 of 272 "Nllaye with a Past, C# with a Future 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 II„ Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 1I f l 1991 MEMO: TO: Rick Koch, City Manager THRU: Sean Wedemeyer, Public Works Director S;Mhl FROM: Kayla Feltman, Public Works Administrative Assistant K DATE: August 13, 2014 SUBJECT: Supporting Resolution No. 2014 -59 Please see attached Resolution No. 2014 -59 with Attachment "A ". These items have reached the end of their useful life and are no longer needed by the departments listed. The memo and resolution is to recommend Council to approve Administration's request to dispose of these items. If Council passes Resolution No. 2014 -59, Administration will dispose these items with a non competitive Surplus Item Sale, Competitive Sealed Bid, or an internet sale process per KMC 7.15.060 Sales, surplus, competitive bidding and 7.15.070 Sales, when competitive bidding not required. Page 152 of 272 2014 6ty of Kenai Auction ITEMS Attachment A Resolution No. 2014.59 Department Quantity item Description (items OVER $1,000) Airport 1 14 Foot Monroe Rollover Snow Plow with 12 foot wing plow with hardware-h . Ram Included Department Quantity Item Description (items UNDER $1,000) Parks & Recreation 1 Two -Stall Rom -Teo Outdoor Restroom w /out fixtures Parks & Recreation 1 1 Handican Portable Restroom Parks & Recreation 1 Goosen Vac -n -Load Grass Catcher Legal 1 HP Laser Jet Print Cartridge Q6512X 2410 2420 • 2430 Page 153 of 272 j "Village with a Past, C# with a Future" Kenai Police Department 107 S. Willow St., Kenai, Alaska 99611 1� Telephone: 907 - 283 -7879 /FAX: 907 - 283 -2267 I I - 1992 the ci�yof KENALALA SKA MEMO* TO: Rick Koch — City Manager FROM: Gus Sandahl — Police Chief DATE: 7/23/14 SUBJECT: Request Permission to auction or otherwise sell a retired police cruiser. (Included with Resolution No. 2014 -55 on Attachment A) The Kenai Police Department has retired its use of a police cruiser: 2001 Ford Crown Victoria with 108,784 miles (VIN — 2FAFP71 WX1X144973) The vehicle has reached its useful life (due to age and mileage) for police operations. The vehicle does not have any known problems. I am requesting this vehicle to be determined as surplus; and request authorization to auction, or otherwise sell the vehicle. Page 154 of 272 KENAI CITY COUNCIL — REGULAR MEETING AUGUST 6, 2014 — 7:00 P.M. KENAI CITY COUNCIL CHAMBERS 210 FIDALGO AVE., KENAI, AK 99611 MAYOR PAT PORTER, PRESIDING MINUTES A. CALL TO ORDER A Regular Meeting of the Kenai City Council was held on August 6, 2014, in City Hall Council Chambers, Kenai, AK. Mayor Porter called the meeting to order at 7:00 p.m. 1. Pledge of Allegiance Mayor Porter led those assembled in the Pledge of Allegiance. 2. Roll Call There were present: Mayor Pat Porter Robert Molloy Mike Boyle A quorum was present. Also in attendance were: Rich Koch, City Manager Scott Bloom, City Attorney Sandra Modigh, City Clerk 3. Agenda Approval Ryan Marquis (telephonic) Terry Bookey Tim Navarre Mayor Porter noted the following material was provided as a lay -down for inclusion in the packet: D.1 Ordinance No. 2780 -2014 Email Correspondence in Favor D.2 Ordinance No. 2781 -2014 Memorandum MOTION: Council Member Molloy MOVED to approve the agenda and requested UNANIMOUS CONSENT. Council Member Navarre SECONDED the motion. Page 155 of 272 VOTE: There being no objections, SO ORDERED. 4. Consent Agenda MOTION: Council Member Navarre MOVED to approve the consent agenda and requested UNANIMOUS CONSENT. Council Member Bookey SECONDED the motion. Mayor Porter opened the floor for public comment on consent agenda items, there being no one wishing to speak, public comment was closed. VOTE: There being no objections, SO ORDERED. `All items listed with an asterisk (') are considered to be routine and non- controversial by the council and will be approved by one motion. There will be no separate discussion of these items unless a council member so requests, in which case the item will be removed from the consent agenda and considered in its normal sequence on the agenda as part of the General Orders. B. SCHEDULED PUBLIC COMMENTS — None. C. UNSCHEDULED PUBLIC COMMENTS — None. D. PUBLIC HEARINGS 1. Ordinance No. 2780 -2014 — Amending KMC 12.40.010- Definitions, to Include and Regulate the Use of Electronic Cigarettes and the Smoking of Non - Tobacco Plant Based Materials the Same as the City Currently Regulates Smoking Tobacco. [Cleric's Note: At its July 16' meeting, Council postponed this ordinance to the August 6th meeting, motion to approve is on the floor.] Mayor Porter opened the public hearing. The following individuals spoke in favor of the ordinance: Jenny Olendorf, Soldotna resident Alley Juicy, Soldotna resident Mackenzie Linderman, Soldotna resident Rachael Todd Pamela Howard, Soldotna resident Susan Smalley, Kenai resident Johna Beech, Kenai resident Nels Anderson, Soldotna resident Jim Zirul, Kenai resident The following individuals spoke in opposition to the ordinance: Steve Mapes City of Kenai Council Meeting Page 2 of 12 August 6, 2014 Page 156 of 272 There being no one else wishing to speak the public hearing was closed Discussion ensued by Council with some members expressing interest in excluding the reference to plant based material. MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2780 -2014 by revising the definition of "smoking" on page 2 of 3 to read as follows: means (1) the burning, inhaling, or exhaling of a tobacco or carrying any lighted pipe, cigar, cigarette or other combustible substance in any manner or in any form; or (2) the use of any electronic cigarette. *` SECONDED the motion. VOTE: YAY: Boyle, Marquis, Molloy NAY: Porter, Bookey, Navarre MOTION FAILED MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2780 -2014 by revising the definition of "health care facility' on page 2 of 3 to read as follows: means a business, office or institution that provides medical, mental, or dental health treatment. Council Member Bookey SECONDED the motion. VOTE: YAY: Boyle, Porter, Bookey, Navarre, Molloy NAY: Marquis MOTION PASSED. Mayor Porter passed the gavel to Council Member Molloy. MOTION TO POSTPONE: Mayor Porter MOVED to postpone Ordinance No. 2780 -2014 to the August 201h Council meeting and Council Member Boyle SECONDED the motion. VOTE: YAY: Porter NAY: Marquis, Boyle, Bookey, Navarre, Molloy MOTION FAILED. City of Kenai Council Meeting Page 3 of 12 August 6, 2014 Page 157 of 272 VOTE ON MAIN AS AMENDED: YAY: Porter, Navarre NAY: Marquis, Boyle, Bookey, Molloy MOTION FAILED. Council Member Bookey provided notice of a reconsideration at the August 20'" meeting. 2. Ordinance No. 2781 -2014 — Amending KMC 1.85.050 - Refusal or Failure to Disclose, to Amend and Clarify Consequences for Refusal or Failure to Timely File Required Financial Disclosure Information. MOTION: Council Member Bookey MOVED to enact Ordinance No. 2781 -2014 and Council Member Navarre SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2781 -2014 1.85.050 (C) by replacing the words, "fine" with "penalty" and "fines" with "penalties' and requested UNANIMOUS CONSENT. Council Member Bookey SECONDED the motion. VOTE: There being no objections, SO ORDERED. MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2781 -2014 1.85.050 (e) to read as follows, "The City Clerk or Attorney shall notify the Council and Candidate or Municipal Officer in writing of any known violation of this chapter. The Council shall direct the City Attorney or Clerk to proceed with enforcement as provided by this chapter." Council Member Bookey SECONDED the motion. VOTE ON AMENDMENT: YAY: Porter, Navarre, Marquis, Bookey, Molloy NAY: Boyle MOTION PASSED. MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2781 -2014 1.85.050 (c) by revising the first sentence to read as follows, "A seated municipal officer who refuses or fails to submit a required statement, or to make a required disclosure of information on that statement as required in that statement, as provided in this chapter....... and requested UNANIMOUS CONSENT. Council Member Bookey SECONDED the motion. City of Kenai Council Meeting Page 4 of 12 August 6, 2014 Page 158 of 272 VOTE: There being no objections, SO ORDERED. MOTION TO AMEND: Council Member Molloy MOVED to amend Ordinance No. 2781 -2014 1.85.050 (c) by inserting the following sentence, "Council may request further information from the affected municipal office if needed to make a fair determination." After the words, "complete reduction of civil penalties" and before, "A City Council Member subject..." and requested UNANIMOUS CONSENT. Council Member Bookey SECONDED the motion. VOTE ON MAIN AS AMENDED: YAY: Porter, Navarre, Marquis, Bookey, Molloy NAY: Boyle MOTION PASSED. 3. *Ordinance No. 2782 -2014 — Enacting KMC 14.20.171 -Group Care Facilities, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Define and Provide Zoning Regulations for Group Care Facilities. MOTION: Council Member Navarre MOVED to enact Ordinance No. 2782 -2014 and Council Member Bookey SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. Concerns related to amending the Land Use Table were noted and a joint work session with the Planning & Zoning Commission was discussed. MOTION: Council Member Molloy MOVED to postpone Ordinance No. 2782 -2014 to the September 171h meeting with an additional public hearing. Council Member Boyle SECONDED the motion. VOTE: YAY: Porter, Navarre, Marquis, Bookey, Molloy, Boyle NAY: MOTION PASSED UNANIMOUSLY. Scheduling of the joint work session was to be placed on the next meeting agenda. City of Kenai Council Meeting Page 5 of 12 August 6, 2014 Page 159 of 272 4. *Ordinance No. 2783 -2014 — Enacting KMC 14.20.172- Emergency Shelters, and Amending KMC 14.20.320 - Definitions, and KMC 14.22.010 - Land Use Table, to Provide Zoning Regulations for Emergency Shelters that Provide Temporary Housing for Homeless and Others in Need of Safe Accommodations. MOTION: Council Member Molloy MOVED to enact Ordinance No. 2783 -2014 and Council Member Bookey SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. Concerns related to amending the Land Use Table were noted and a joint work session with the Planning & Zoning Commission was discussed. MOTION: Council Member Molloy MOVED to postpone Ordinance No. 2783 -2014 to the September 171h meeting with an additional public hearing. Council Member Boyle SECONDED the motion. VOTE: YAY: Porter, Navarre, Marquis, Bookey, Molloy, Boyle NAY: MOTION PASSED UNANIMOUSLY. 5. *Ordinance No. 2784 -2014 — Amending KMC 14.22.010 -Land Use Table, to Designate Airports as a Conditional Use Instead of a Permitted Use, in Central Commercial, General Commercial, Light Industrial and Heavy Industrial Zones and to Clarify the Intended Land Use. MOTION: Council Member Molloy MOVED to enact Ordinance No. 2784 -2014 and Council Member Bookey SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: YAY: Porter, Navarre, Marquis, Bookey, Molloy, Boyle NAY: MOTION PASSED UNANIMOUSLY. City of Kenai Council Meeting Page 6 of 12 August 6, 2014 Page 160 of 272 6. *Ordinance No. 2785 -2014 — Accepting and Appropriating a Grant from the State of Alaska for the Purchase of Library Books. MOTION: Council Member Bookey MOVED to enact Ordinance No. 2785 -2014 and Council Member Boyle SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: YAY: Porter, Navarre, Marquis, Bookey, Molloy, Boyle NAY: MOTION PASSED UNANIMOUSLY. 7. Resolution No. 2014 -51 — Establishing a Kenai Business Improvement Program. MOTION: Council Member Navarre MOVED to adopt Resolution No. 2014 -51 and Council Member Boyle SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: YEA: Navarre, Porter NAY: Molloy, Boyle, Bookey, Marquis MOTION FAILED. 8. Resolution No. 2014 -52 — Prescribing the Officials Bond Amount for the City Administrator and Finance Director Pursuant to Section 4.3 of the Kenai Municipal Charter. MOTION: Council Member Bookey MOVED to adopt Resolution No. 2014 -52 and requested UNANIMOUS CONSENT. Council Member Molloy SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: There being no objections, SO ORDERED. City of Kenai Council Meeting Page 7 of 12 August 6, 2014 Page 161 of 272 August 6, 2014 9. Resolution No. 2014 -53 — Awarding a Professional Services Agreement in the Amount of $112,178 to Nelson Engineering, P.C., for Design and Construction Administration for the Construction of South Beach Access Road. MOTION: Council Member Molloy MOVED to adopt Resolution No. 2014 -53 and requested UNANIMOUS CONSENT. Council Member Bookey SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. City Manager Koch provided an update on the project. Vice Mayor Marquis exited the meeting at 9:12p. VOTE: There being no objections, SO ORDERED. 10. Resolution No. 2014 -54 — Authorizing the Use of the Equipment Replacement Fund to Purchase an Attachment for the New Volvo L110 Loader and Authorizing an Increase in the Loader's Purchase Contract for the Purchase of the Attachment. MOTION: Council Member Molloy MOVED to adopt Resolution No. 2014 -54 and requested UNANIMOUS CONSENT. Council Member Boyle SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: There being no objections, SO ORDERED. 11. Resolution No. 2014 -55 — Declaring Equipment, Supplies, and Materials Surplus or Obsolete, and to be Sold as Provided in Kenai Municipal Code 7.15.060 and 7.15.070. MOTION: Council Member Bookey MOVED to adopt Resolution No. 2014 -55 and requested UNANIMOUS CONSENT. Council Member Boyle SECONDED the motion. Mayor Porter opened the public hearing, there being no one wishing to speak the public hearing was closed. VOTE: There being no objections, SO ORDERED. E. MINUTES 1. *Regular Meeting of July 16, 2014 Page 8 of 12 Page 162 of 272 Minutes were approved by the consent agenda F. UNFINISHED BUSINESS — None. G. NEW BUSINESS 1. *Action /Approval — Bills to be Ratified. Approved by the consent agenda. 2. *Action /Approval — Non Objection of Transferring Liquor License #5224 from Francisco Rodriquez to Ramon Gonzalez d /b /a Playa Azul and of a Restaurant Designation Permit. Approved by the consent agenda. 3. *Ordinance No. 2786 -2014 — Enacting KMC 23.40.035 - Bona Fide Employer- Sponsored Medical Leave Sharing Arrangement. Ordinance was introduced on the consent agenda and public hearing set for August 20th. 4. *Ordinance No. 2787 -2014 — Repealing KMC 7.15.110 - Offset Against Delinquent Taxes, and Re- Enacting the Code Section as KMC 7.15.110 -Tax Compliance, to Require Individuals and Businesses Contracting with the City to be in Compliance with City Tax Ordinances. Ordinance was introduced on the consent agenda and public hearing set for August 201n 5. *Ordinance No. 2788 -2014 — Increasing Estimated Revenues and Appropriations in the Airport and Airport Equipment Capital Project Funds for the Purchase of Snow Removal Equipment (SRE) — Plow Truck with Attachments. Ordinance was introduced on the consent agenda and public hearing set for August 20th. 6. *Ordinance No. 2789 -2014 — Amending Kenai Municipal Code Section 11.05.050, "Condition as to Equal Services and Rates," to Require that the City Provide Residents of the City of Kenai with Free Services at the City - Owned Boat Launch and Parking Facility. Ordinance was introduced on the consent agenda and public hearing set for August 20". 7. Action /Approval — Special Use Permit with the State of Alaska Department of Natural Resources /Division of Forestry to Conduct Aeronautical and /or Aviation Related Activities at the Kenai Municipal Airport. MOTION: Council Member Molloy MOVED to approve the Special Use Permit and requested UNANIMOUS CONSENT. Council Member Boyle SECONDED the motion. City of Kenai Council Meeting Page 9 of 12 August 6, 2014 Page 163 of 272 VOTE: There being no objections, SO ORDERED. 8. Action /Approval — Second Amendment to the Kenai Municipal Airport Airline Operating Agreement and Terminal Area Lease between the City and Grant Aviation, Inc. MOTION: Council Member Bookey MOVED to approve the amended agreement and requested UNANIMOUS CONSENT. Council Member Boyle SECONDED the motion. VOTE: There being no objections, SO ORDERED. H. COMMISSION /COMMITTEE REPORTS 1. Council on Aging — City Clerk advised the August meeting had been cancelled and the Mayor reported on the July meeting. 2. Airport Commission — Mayor Porter reported on the July meeting. 3. Harbor Commission — Council Member Molloy advised Boyle would be attending the August meeting. 4. Library Commission — Council Member Boyle provided an overview of the August 5f" meeting and the Mayor advised of three vacancies on the commission. 5. Parks and Recreation Commission — Bookey advised the next meeting was August 71 and the Mayor would be attending in his absence. 6. Planning and Zoning Commission — No report. 7. Beautification Committee — No report. 8. Mini -Grant Steering Committee — No report. REPORT OF THE MAYOR Mayor Porter reported the following: • Swearing in new Fire Marshal and Firefighter. • Attended the bill signing with the Governor Parnell. • Working with Eagle Scouts to assist the high school in beautifying a green space. • Met with the Salmon Frenzy volunteers and advised of additional projects the volunteers were working on other than the personal use fishery. • Saturday Coffee with the Mayor is successful. • New businesses in town, AT &T and Bakery. City of Kenai Council Meeting Page 10 of 12 August 6, 2014 Page 164 of 272 J. ADMINISTRATION REPORTS City Manager reported on the following: • Update on the neighborhood clean -up. • Update on the 2014 Personal use Fishery and expected date for report. • Capital Projects upcoming in October. • Beaver Loop reopened. • Corps of Engineers secured funds for the final Feasibility Study, still awaiting signatures. • Deadline for Municipal Matching Grant submitted for upgrade to the waste water treatment center. • Placement of the mural at the airport and removal of a tree. • Remodel of City Hall entrance. Mayor Porter expressed her concerns for the wetlands at the Memorial Bridge. 2. City Attorney • No report 3. City Clerk • Nominating filing period August 1 -15. K. ADDITIONAL PUBLIC COMMENT 1. Citizens Comments — None. 2. Council Comments Council Member Boyle thanked to Corey Hall for her years of service, agreed with Mayor Porter about wetlands near the bridge, noted there are too many boats on the river during the personal use fishery and suggested a safety training, gave accolades to city workers for a well -run fishery. Council Member Molloy thanked Corey Hall for her long services to the City and thanked all employees for their hard work during the fishery. Council Member Bookey advised of the second opened round about in Soldotna, noted he received notification from residents who were pleased with this year's fishery, thanked Corey Hall for her services and wished her well. Council Member Navarre stated that employees working the fishery were courteous and thought the new regulations this year worked, thanked Corey Hall for her services and suggested the City donate a tree on her behalf and possibly having Council donate funds from their stipend. L. EXECUTIVE SESSION — None Scheduled. City of Kenai Council Meeting August 6, 2014 Page 165 of 272 M. PENDING ITEMS 2. Ordinance No. 2748 -2014 — Amending Kenai Municipal Code 1.90.020 - Duties, to Provide that Boards, Commissions, and Committees Act in an Advisory Capacity to Council. [Clerk's Note: At its May 20`" meeting, Council postponed this ordinance to the August 20'h meeting.] N. ADJOURNMENT There being no further business before the Council, the meeting was adjourned at 9:58p.m. Minutes prepared and submitted by: Sandra Modigh, CMC City Clerk City of Kenai Council Meeting Page 12 of 12 August 6, 2014 Page 166 of 272 CITY OF KENAI iANCE NO. 2780 -2014 Suggested by: Mayor Porter AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KMC 12.40.010- DEFINITIONS, TO INCLUDE AND REGULATE THE USE OF ELECTRONIC CIGARETTES AND THE SMOKING OF NON - TOBACCO PLANT BASED MATERIALS THE SAME AS THE CITY CURRENTLY REGULATES SMOKING TOBACCO. WHEREAS, Kenai Municipal Code Chapter 12.40 - Regulation of Smoking, currently regulates smoking tobacco products but does not specifically address use of electronic cigarettes or smoking other non - tobacco substances; and, WHEREAS, use of electronic cigarettes has noticeably increased recently; and, WHEREAS, the safety of electronic cigarettes and associated vapor to the user and third parties is disputed; and, WHEREAS, the US Food and Drug Administration is moving towards regulation of e- cigarettes, but does not currently regulate them; and, WHEREAS, the use of electronic cigarettes in restaurants and other places where cigarette smoking is currently prohibited can be concerning and distracting to other patrons; and, WHEREAS, many other municipalities across the country are regulating electronic cigarettes the same or similar to tobacco cigarettes; and, WHEREAS, it is important to protect the public that chooses not to ingest certain products from any substance, whether tobacco or other plant matter, that is exhaled and may be inhaled by third parties; and, WHEREAS, Alaskan voters will have the opportunity to vote on Ballot Measure 2 on November 4, 2014, An Act to Tax and Regulate the Production, Sale and Use of Marijuana, which may increase use of marijuana in public; and, WHEREAS, like the smoking of tobacco, passage of this Ordinance would prohibit use of electronic cigarettes and the smoking of other plant based matter, in and within specified distances of indoor eating establishments, bowling alleys, businesses and outdoor areas posted as no smoking, as well as healthcare facilities. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, that New Text Underlined [DELETED TEXT Page 167 of 272 Ordinance No. 2780 -2014 Page 2 of 3 Section 1. Form: That this is a code ordinance. Section 2. Amendment of Section Kenai Municipal Code, Section 12.40.0 12.40.010 Definitions. Kenai Municipal Code: That is hereby amended as follows: "Bar" means a premises licensed under AS 04.11.090 which does not employ any person under the age of twenty -one (21) and which does not serve any person under the age of twenty -one (21) unless accompanied by a parent or guardian, and where tobacco smoke cannot filter into any other area where smoking is prohibited through a passageway, ventilation system or other means. A "bar" does not include areas in an eating establishment where alcoholic beverages may be served. "Business" means any legal entity, whether for profit or not for profit, that provides goods or services, including, but not limited to, a sole proprietorship, partnership, limited liability company, corporation, trust, membership organization or similar entity. "Eating establishment" means any restaurant, coffee shop, cafeteria, luncheonette, sandwich stand, soda fountain, private or public school cafeteria, fast food service and other establishments, including any bar area of any such establishment which is not an enclosed area, the primary purpose of which is to give or offer for sale food to the public and where cooked or otherwise prepared food is sold to the public for consumption on the premises, as well as kitchens in which food is prepared. drawn into or across the nonsmoking area where all space between a floor and ceiling is enclosed on all sides by solid walls or windows, exclusive of doors or passage ways, which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend between the floor and ceiling or are not solid. The doors of an enclosed area should remain closed whenever practicable. "Health care facility" means a business, office or institution that provides medical or mental health treatment. "Operator" means and includes the owner, proprietor, manager, lessee, lessor, licensee or any other person exercising control over any eating establishment, business or bar. "Smoking" means gigItElILthe burning, inhaling or exhaling of a tobacco or other plant based material or carrying any lighted pipe, cigar, cigarette or other combustible substance in any manner or in any form; or (21 the use of anv electronic cigarette. New Text Underlined; DELETED TEXT BRACKETED) Page 168 of 272 Ordinance No. 2780 -2014 Page 3 of 3 Section 3. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: That pursuant to KMC 1.15.070(1), this ordinance shall take effect 30 days after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 16th day of July, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER. MAYOR Introduced: July 2, 2014 Adopted: July 16, 2014 Effective: August 15, 2014 New Text Underlined; DELETED TEXT BRACKETED Page 169 of 272 u lVillaye with a Past, Ci� with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 MEMORANDUM TO: City Councilors FROM: Mayor Porter DATE: June 26, 2014 SUBJECT: Ordinance No. 2780 -2014, E- Cigarettes The City currently regulates where tobacco cigarettes can be smoked in public as well as in certain private establishments such as restaurants and healthcare facilities. Electronic cigarettes, which involve vaporizing certain substances, have become more noticeable and popular. Many municipalities and airlines across the country already regulate electronic cigarettes the same as tobacco. The FDA does not regulate electronic cigarettes but is in the process of doing so. The safety of these devices to the user and third party is contested and debated. However, until and unless it is conclusively determined that electronic cigarettes are safe with regards to second hand "smoke" I strongly believe the City should protect its residents the same as they are protected from second hand smoke from tobacco. I have also included in this Ordinance a reference to smoking other plant based material. Again, like with electronic cigarettes this is a proactive measure to protect non - smokers from those who choose to smoke, whether it is tobacco or some other substance such as marijuana. With the upcoming vote on Ballot Measure 2, An Act to Tax and Regulate the Production, Sale, and Use of Marijuana, this Ordinance is timely. This Ordinance would not interfere with any state or federal regulation regarding electronic cigarettes or marijuana, as it does not make either permissible or impermissible, but only prohibits their use in certain places, the same as tobacco is regulated. Your consideration is appreciated. YXity CounciMemorandums\2014 0626 E- Cigarettes Memo.docx Page 170 of 272 THE STATE Department of Health and Social Services °fALASKA DIVISION OF PUBLIC HEALTH Director's Office GOVERNOR SEAN PARNELI. Electronic Cigarette and Aerosol Emissions Product Update and Position 3601 C Street, Suite 756 Anchorage, Alaska 99503.5924 Main: 907.269.8126 Fox: 907.269.2048 Electronic cigarettes (e- cigarettes, a -rigs, e- hookah or vape pens) are marketed by the Tobacco Industry and other manufacturers as a new nicotine delivery system. These battery- powered devices heat nicotine, flavor additives and other chemicals, to produce an aerosol inhaled by the user. Their production is unregulated and varies widely - recent research and consumer experience reflect questionable product quality, content and safety.' With only limited research to date, the presence of toxins and cancer - causing agents as well as the health effects of their use are not yet fully known. Chemical and Toxin Emissions in E- Cigarette Aerosol • E- cigarettes do not just emit "harmless water vapor." Secondhand e- cigarette aerosol (incorrectly called vapor by the industry) contains nicotine, ultraftne particles and low levels of toxins that are known to cause cancer' The FDA's initial investigation into the content of e- cigarettes found the aerosol potentially hazardous to the public's health due to tobacco - specific nitrosamines and other volatile organic compounds.3 • Studies have shown the presence of heavy metals and carcinogens in e- cigarette aerosol. 4•5 ,6 • Propylene glycol, a chemical that is used as a base in e- cigarette solution, is one of the primary components in the aerosol emitted by e- cigarettes. o Short term exposure causes eye, throat and airway irritation' o Long term inhalation exposure can result in children developing asthma.s • Because they look like traditional cigarettes and emit the aerosol, e- cigarettes have the potential to negatively impact social norms and make smokefree workplace policies harder to enforce. In some states and communities, the public is being protected from potential health harms through local ordinances and regulations prohibiting e- cigarette use in indoor environments. Industry Marketing and the Rise in Youth E- Cigarette Use • The U.S. Food and Drug Administration (FDA) does not currently regulate these products. • Marketers use child- friendly flavors such as "Gumi Bearz" or "Mount N' Do'', themes of rebellion, and celebrity endorsements - strategies long used to market traditional cigarettes to children. • Sales of e- cigarettes in the U.S. have doubled since 2011 to $1.7 billion in 2013.' • Although youth smoking rates have decreased, e- cigarette use has risen across the U.S. and, alarmingly, doubled among middle and high school students between 2011 and 2012.10 F M, L QAeSchW Hi9k SChw1 SbAe S dmb ■ rx:ne„ ore•nn • Gpnno Page 171 of 272 Use of Cigarettes and Electronic Cigarettes by U.S. Students in 2011 and 2012. Data are from the Centers for Disease Control and Prevention' Electronic Cigarette and Aerosol Emissions Product Update and Position Page 2 Lack of Reliability, Safety Require Regulation and Extensive Research E- cigarettes contain varying levels of nicotine - a tobacco - derived product — which can initiate and/or prolong nicotine addiction.1 • These unregulated products may provide uncontrolled doses of nicotine and other harmful chemicals - users have no way of being certain how much is being inhaled or exhaled, I I • Ingestion or skin contact with nicotine solution from a cartridge can lead to nicotine poisoning and can be deadly, especially to children and animals. Accidental nicotine poisonings and lethal doses are a serious concern because the refill' juice" is not sold in child- resistant containers. • Dozens of Alaskan youth are treated for nicotine poisoning every year. 12 • Nicotine affects the nervous system and heart, and can negatively affect the developing brain. It should not be made available to minors. E- Cigarettes are Not an FDA - approved Cessation Device • The FDA has not approved e- cigarettes as an effective method to help smokers quit. • FDA - approved tobacco cessation products provide controlled doses of nicotine and have been tested and regulated as cessation products. • Alaska's Tobacco Quit Line is a free service for all Alaskans ready to quit tobacco. Counseling and FDA - approved Nicotine Replacement Therapies, when used in combination, have been shown to be a safe and effective way to quit. Call 1 -800 QUIT NOW or visit www.tlaskaquitline coin to enroll today. Alaska has seen tremendous progress in reducing smoking but we must remain ever vigilant to protect our young people. Because they are unregulated, the e- cigarette industry has grown markedly over the last few years using old tactics like celebrities to promote and glamorize their use, addicting those most impressionable. More research is needed on the long- term health effects, but we can take steps today to protect our young people. Ward B. Hurlburt, M.D., MPH Chief Medical Officer, Alaska Department of Health and Social Services May 21, 2014 +US Food and Drug Administration Evaluation of e- cigarenes. 2009. Available ac htyl ww.v.lo[. gov /oowmoan�nl u s SrmneePesearcr lUC1.1173250.tm1 Accessed March 4, 2014 ' Grana, R; Benowitz, N; Glantz, S.'Background Paper on E- cigarettes," Center for Tobacco Control Research antl Education, University of California, San Francisco and WHO Collaborating Center on Tobacco Control. December 2013. ' Fairchild, Amy L PhD, MPH, Bayer, Ronald PhD, Colgrove, James PhD, MPH, New England Journal of Medicine January 23, 2014; 370 293 -295 Accessed from: hno: / /www nerm.orc /tlm I�IIgD 1056/NEJMOl313940 ?ouery =TOC& ' Williams, M, Villarreal, A, Bozhilov, K, Lin, 5, Talbot, P. Metal and silicate particles including nanoparticles are present in electronic cigarette cartomizer fluid and aerosol. PLOS ONE. Sept. 2013. ' Goniewicz, ML, Knysak, J, Gawron, M, et al. Levels of selected carcinogens and toxicants in vapour from electronic cigarettes. Tobacco Control 2013. ' Schripp, T, Markewitz, 0, Uhde, E, Salthammer, T. Does e- cigarette consumption cause passive vaping? Indoor Air, 2013. + Wieslandef, G; Norback, D; Lindgren, T. "Experimental exposure to propylene glycol mist in aviation emergency training: acute ocular and respiratory effects." Occopotionol and Environmental Medicine 58:30649 -655, 2001. `Choi, H; SchmidbauerN; Spengler,J; Bornehag, C., "Sources of Propylene Glycol and Glycol Ethers in Air at Home," lnternabona/ Journal of Environmental Research and Public Health 7(12):4213 -4237, December 2010. ' Fatboy Vapors: etiquid Menu hit: www la[boev.:porsaiaska <om',A:41ip,atl l[tloly r` Centers for Disease Control and Prevention. Tobacco Product Use Among Middle and High School Students— United States, 2011 and 2012. Morbidity and Mortality Weekly Report 2013;62(45):893 -7 [accessed 2014 Feb 14). httg 11Www tde.covin•mw / r v'e/ rhiml m:n6245a2__hln + %s utl= %2DrmnGi4_.,,� Mn " U.S. Food and Drug Administration. "FDA and Public Health Experts Warn About Electronic Ggarettes "Jury 22. 2009. Available at: nt its, /Lwwvr Itla. ov NewsEvents /Newuodrrm Oressannem:cemems 2009 ucm 1732ectroni Nmnunc Fxpnsurrs. Alaska Poison Control System. Stale of Alaska DHSS Page 172 of 272 IM AMERICANS FOR NONSMOKERS' RIGHTS Detoding your right to breathe smaetee air since 1976 Electronic (e -) Cigarettes and Secondhand Aerosol "7f you are around somebody who is using e- cigarettes, you are breathing an aerosol of exhaled nicotine, ultra -fine particles, volatile organic compounds, and other toxins," Dr. Stanton Glantz, Director for the Center for Tobacco Control Research and Education at the University of California, San Francisco. Current Legislative Landscape • As of January 2, 2014, 108 municipalities and three states include e- cigarettes as products that are prohibited from use in smokefree environments. Constituents of Secondhand Aerosol E- cigarettes do not just emit "harmless water vapor." Secondhand e- cigarette aerosol (incorrectly called vapor by the industry) contains nicotine, ultrafine particles and low levels of toxins that are known to cause cancer. • E- cigarette aerosol is made up of a high concentration of ultrafine particles, and the particle concentration is higher than in conventional tobacco cigarette smoke.' • Exposure to fine and ultrafine particles may exacerbate respiratory ailments like asthma, and constrict arteries which could trigger a heart attack? At least 10 chemicals identified in e- cigarette aerosol are on California's Proposition 65 list of carcinogens and reproductive toxins, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The compounds that have already been identified in mainstream (MS) or secondhand (SS) e- cigarette aerosol include: Acetaldehyde (MS), Benzene (SS), Cadmium (MS), Formaldehyde (MS,SS), Isoprene (SS), Lead (MS), Nickel (MS), Nicotine (MS, SS), N- Nitrosonornicotine (MS, SS), Toluene (MS, SS).''" • E- cigarettes contain and emit propylene glycol, a chemical that is used as a base in e- cigarette solution and is one of the primary components in the aerosol emitted by e- cigarettes. • Short term exposure causes eye, throat, and airway irritation .5 • Long term inhalation exposure can result in children developing asthma -' • Even though propylene glycol is FDA approved for use in some products, the inhalation of vaporized nicotine in propylene glycol is not. Some studies show that heating propylene glycol changes its chemical composition, producing small amounts of propylene oxide, a known carcinogen.' • There are metals in e- cigarette aerosol, including chromium, nickel, and tin nanoparticles.8 • FDA scientists found detectable levels of carcinogenic tobacco - specific nitrosamines in e- cigarette aerosol.9 2530 San Pablo Avenue, Suite J • Berkeley, California 94702 . (510) 841 -3032 I FAX (510) 841 -3071 www,no- smoke.org • am @no- smoke.org Page 173 of 272 • People exposed to e- cigarette aerosol absorb nicotine (measured as cotinine), with one study showing levels comparable to passive smokers.10 • Diethylene Glycol, a poisonous organic compound, was also detected in e- cigarette aerosol." • Exhaled e- cigarette aerosol contained propylene glycol, glycerol, flavorings, and nicotine, along with acetone, formaldehyde, acetaldehyde, propanal, diacetin, and triacitine.12 • Many of the elements identified in the aerosol are known to cause respiratory distress and disease. The aerosol contained particles >1 pm comprised of tin, silver, iron, nickel, aluminum, and silicate and nanoparticles ( <100 nm) of tin, chromium and nickel. The concentrations of nine of eleven elements in e- cigarette aerosol were higher than or equal to the corresponding concentrations in conventional cigarette smoke.13 • E- cigarettes cause exposure to different chemicals than found in conventional cigarettes and there is a need for risk evaluation for both primary and passive exposure to the aerosol in smokers and nonsmokers." • Short term use of e- cigarettes has been shown to increase respiratory resistance and impair lung function, which may result in difficulty breathing.15 • Overall, e- cigarettes are a new source of Volatile Organic Compounds (VOCs) and ultrafinelfine particles in the indoor environment, thus resulting in "passive vaping. "16 E- cigarette aerosol is a new source of pollution and toxins being emitted into the environment. We do not know the long -term health effects of e- cigarette use and although the industry marketing of the product implies that these products are harmless, the aerosol that e- cigarettes emit is not purely water vapor. May be reprinted with appropriate attribution to Americans for Nonsmokers' Rights, © 2014 REFERENCES ' Fuoco, F.C.; Buonanno, G.; Stabile, L.; Vigo, P., "Influential parameters on particle concentration and size distribution in the mainstream of e- ciearettes " Environmental Pollution 184: 523 -529, January 2014. 3 Grana, R; Benowitz, N; Glantz, S. "Background Paper on E- cigarettes " Center for Tobacco Control Research and Education, University of California, San Francisco and WHO Collaborating Center on Tobacco Control. December 2013. 3 Goniewicz, M.L.; Knysak, J.; Gawron, M.; Kosmider, L.; Sobczak, A.; Kurek, J.; Prokopowicz, A.; Jablonska- Czapla, M.; Rosik - Dulewska, C.; Havel, C.; Jacob, P.; Benowitz, N., "Levels of selected carcinogens and toxicants in vapour from electronic cigarettes " Tobacco Control [Epub ahead of print], March 6, 2013. ' Williams, M.; Villarreal, A.; Bozhilov, K.; Lin, 5.; Talbot, P., "Metal and silicate particles including nanoparticles are present in electronic cigarette cartomizer fluid and aerosol " PLoS ONE 8(3): e57987, March 20, 2013. s Wieslander, G; Norback, D; Lindgren, T. "Experimental exposure to propylene glycol mist in aviation emergency training acute ocular and respiratory effects." Occupational and Environmento! Medicine 58:10 649 -655, 2001. e Choi, H; Schmidbauer, N; Spengler,J; Bornehag, C, "Sources of Propylene Ghcol a id Glycol Ethers in Air at Home " Internotionollournal of Environmental Research and Public Heol[h 7(12): 4213 -4237, December 2010. ' Henderson, TR; Clark, CR; Marshall, TC; Hanson, RL; &Hobbs, CH. "Heat degradation studies of solar heat transfer fluids "Solar Energy, 27, 121 -128. 1981. Page 174 of 272 Williams, M.; Villarreal, A.; Bozhilov, K.; Lin, 5.; Talbot, P., "Metal and silicate Particles including nanoparticles are present in electronic cigarette cartomizer fluid and aerosol," PLoS ONE8(3): e57987, March 20, 2013. 9 Westenberger, B.J., "Evaluation of e- cigarettes," St. Louis, MO: U.S. Department of Health and Human Services (DHHS), Food and Drug Administration (FDA), Center for Drug Evaluation and Research, Division of Pharmaceutical Analysis, May 4, 2009. 10 Flouris, A.D.; Chorti, M.S.; Poulianiti, K.P.; Jamurtas, A.Z.; Kostikas, K.; Tzatzarskis, M.N.; Wallace, H.A.; Tsatsaki, A.M.; Koutedakis, Y., "Acute impact of active and oassive electronic cigarette smoking on serum cotinine and lung function." Inhalation Toxicology 25(2):91-101, February 2013. 11 Westenberger, B.1., "Evaluation of e- cigarettes." St. Louis, MO: U.S. Department of Health and Human Services (DHHS), Food and Drug Administration (FDA), Center for Drug Evaluation and Research, Division of Pharmaceutical Analysis, May 4, 2009. 12Schrlpp, T.; Markewitz, D.; Uhde, E.; Salthammer, T., "Does e- cigarette consumption cause passive vaping ?:' Indoor Air 23(1): 25 -31, February 2013. 1s Williams, M.; Villarreal, A.; Bozhilov, K.; Lin, 5.; Talbot, P., "Metal and silicate particles including nanoparticles are Present in electronic cigarette cartomizer fluid and aerosol." PLoS ONE 8(3): e57987, March 20, 2013. 30. Pellegrino, R.M.; Tinghino, B.; Manglaracina, G.; Marani, A.; Vitali, M.; Protano, C.; Osborn,l.F.; Cattaruzza, M.S., "Electronic cigarettes: an evaluation of exposure to chemicals and fine Particulate matter PM "Annali Di Igiene 24(4):279-88, July-August 2012. s Vardavas, C.I.; Anagnostopoulos, N.; Kougias, M.; Evangelopoulou, V.; Connolly, G.N.; Behrakis, P.K., "Short-term Pulmonary effects of using an electronic cigarette: impact on respiratory flow resistance, impedance, and exhaled nitric oxide," 141(6): 1400 -1406, June 2012. 16 Schripp, T.; Markewitz, D.; Uhde, E.; Salthammer, T., "Does e- cigarette consumption cause passive vaping ?, "Indoor Air 23(1): 25 -31, February 2013. 1402 [FS -39) Page 175 of 272 Press Release Embargoed until 1 p.m. ET Contact: CDC Media Relations Thursday, April 3, 2014 (404) 639 -3286 New CDC study finds dramatic increase in e- cigarette - related calls to poison centers Rapid rise highlights need to monitor nicotine exposure through e- cigarette liquid and prevent future poisonings The number of calls to poison centers involving e- cigarette liquids containing nicotine rose from one per month in September 2010 to 215 per month in February 2014, according to a CDC study published in today's Morbidity and Mortality Weekly Report. The number of calls per month involving conventional cigarettes did not show a similar increase during the same time period. More than half (51.1 percent) of the calls to poison centers due to e- cigarettes involved young children 5 years and under, and about 42 percent of the poison calls involved people age 20 and older. The analysis compared total monthly poison center calls involving e- cigarettes and conventional cigarettes, and found the proportion of e- cigarette calls jumped from 0.3 percent in September 2010 to 41.7 percent in February 2014. Poisoning from conventional cigarettes is generally due to young children eating them. Poisoning related to e- cigarettes involves the liquid containing nicotine used in the devices and can occur in three ways: by ingestion, inhalation or absorption through the skin or eyes. "This report raises another red flag about e- cigarettes — the liquid nicotine used in e- cigarettes can be hazardous," said CDC Director Tom Frieden, M.D., M.P.H. "Use of these products is skyrocketing and these poisonings will continue. E- cigarette liquids as currently sold are a threat to small children because they are not required to be childproof, and they come in candy and fruit flavors that are appealing to children." E- cigarette calls were more likely than cigarette calls to include a report of an adverse health effect following exposure. The most common adverse health effects mentioned in e- cigarette calls were vomiting, nausea and eye irritation. �. DEPARTMENT OF HEALTH AND HUMAN SERVICES CENTERS FOR DISEASE CONTROL AND PREVENTION 6 SAFER - HEALTHIER • PEOPLE"" Page 176 of 272 Data for this study came from the poison centers that serve the 50 states, the District of Columbia, and U.S. Territories. The. study examined all calls reporting exposure to conventional cigarettes, e- cigarettes, or nicotine liquid used in e- cigarettes. Poison centers reported 2,405 e- cigarette and 16,248 cigarette exposure calls from September 2010 to February 2014. The total number of poisoning cases is likely higher than reflected in this study, because not all exposures might have been reported to poison centers. "The most recent National Youth Tobacco Survey showed e- cigarette use is growing fast, and now this report shows e- cigarette related poisonings are also increasing rapidly," said Tim McAfee, M.D., M.P.H., Director of CDC's Office on Smoking and Health. "Health care providers, e- cigarette companies and distributors, and the general public need to be aware of this potential health risk from e- cigarettes." Developing strategies to monitor and prevent future poisonings is critical given the rapid increase in e- cigarette related poisonings, The report shows that e- cigarette liquids containing nicotine have the potential to cause immediate adverse health effects and represent an emerging public health concern. U.S. Department of Health and Human Services CDC works 2417 saving lives, protecting people from health threats, and saving money through prevention. Whether these threats are global or domestic, chronic or acute, curable or preventable, natural disaster or deliberate attack, CDC is the nation's health protection agency. y: DEPARTMENT OF HEALTH AND HUMAN SERVICES 2 CENTERS FOR DISEASE CONTROL AND PREVENTION o"' +inn SAFER • HEALTHIER • PEOPLE Page 177 of 272 As founder of ROC the Kenai, a youth sponsored program dedicated to promoting the respect of our community, I strongly support Mayor Porter's ordinance to regulate e- cigarettes the same as traditional cigarettes, cigars, and tobacco pipes. In order to become more knowledgeable S and supportive about this topic, I conducted my own research to find some facts. These facts are from the American Journal of Preventive Medicine, the New York Times, the New England Journal of Medicine, the Juneau Empire and National Public Radio. d E- cigarettes are marketed as a "safer, harmless, and cleaner" way to deliver a puff of nicotine. Nicotine is a drug that causes a sudden "kick" when inhaled through the lungs. After the "kick" dissolves, then depression occurs, causing the smoker to want more. Nicotine is y extraordinarily addicting and of concern. It is a stimulant, and in larger doses, it is toxic. E- cigarettes can cause people who are not using nicotine — like teens or non- smokers — to start to use nicotine. Other facts include... ciC e- cigarettes as quitting aids can be ineffective due to the U fluctuating nicotine content. Most cartridges have a range of up to 20 milligrams of nicotine. However, refill kits allow consumers to fill used cartridges with replacement solutions at much higher doses. Instructions for filling s 3� cartridges with marijuana hash oil can be easily accessed on the Internet. The safety of inhaling propylene glycol W-�Uyt% k\' r &WMA4e 178 of 272 over an extended period of time has not been studied in humans. E- cigarettes are creating, once again, an allure and prestige around the act of smoking. They target youth in glamorizing, sexualizing, advertisements. There is a concern that E- cigarettes are going to renormalize UILIU smoking. The amount of youth using E- cigarettes WM doubled between 2011 -2012. Not only does the high tech aspect appeal to youth, but the many flavors, such as grape and candy flavors are also attractive. Council, I ask you this: What kind of message would be sent to the youth of our community by allowing the use of E- cigarettes in public places? What would your reaction be if patrons of our beautiful library began puffing on E- cigarettes in the presence of children? This became a real problem in Juneau, where Robert Barr, director of the downtown library said that since e- cigarettes became popular, he has had about six instances in which library patrons either asked if they could use an e- cigarette inside or just took one out without asking and started puffing. With e- cigarettes left out of the city's secondhand smoke control code, library staff couldn't legally say no, and they couldn't do Page 179 of 272 [a anything when other patrons complained about the vapor. We certainly don't want vapors in city buildings and other public places. Let's not promote the use of a thinly disguised dispenser of nicotine as "harmless ". I ask the City of Kenai to stand for healthy, clean air. Most importantly, be proactive and positive for the 'tip °` youth in this community. Take the stance that,iM , of any kind, is not allowed in public places. Let's keep moving forward in the prevention of smoking in community areas, not backwards. Respect the health of our citizens, respect our youth and respect our community. Page 180 of 272 Statement from specialists in nicotine science and public health policy Dr Margaret Chan Director General World Health Organisation Geneva CC: FCTC Secretariat, Parties to the FCTC, WHO Regional Offices 26 May 2014 Dear Dr Chan Reducing the toll of death and disease from tobacco — tobacco harm reduction and the Framework Convention on Tobacco Control (FCTC) We are writing in advance of important negotiations on tobacco policy later in the year at the FCTC Sixth Conference of the Parties. The work of WHO and the FCTC remains vital in reducing the intolerable toll of cancer, cardiovascular disease and respiratory illnesses caused by tobacco use. As WHO has stated, up to one billion preventable tobacco - related premature deaths are possible in the 21st Century. Such a toll of death, disease and misery demands that we are relentless in our search for all possible practical, ethical and lawful ways to reduce this burden. It is with concern therefore that a critical strategy appears to have been overlooked or even purposefully marginalised in preparations for FCTC COP -6. We refer to 'tobacco harm reduction'- the idea that the 1.3 billion people who currently smoke could do much less harm to their health if they consumed nicotine in low -risk, non - combustible form. We have known for years that people 'smoke for the nicotine, but die from the smoke': the vast majority of the death and disease attributable to tobacco arises from inhalation of tar particles and toxic gases drawn into the lungs. There are now rapid developments in nicotine -based products that can effectively substitute for cigarettes but with very low risks. These include for example, e- cigarettes and other vapour products, low- nitrosamine smokeless tobacco such as snus, and other low -risk non - combustible nicotine or tobacco products that may become viable alternatives to smoking in the future. Taken together, these tobacco harm reduction products could play a significant role in meeting the 2025 UN non- communicable disease (NCD) objectives by driving down smoking prevalence and cigarette consumption. Indeed, it is hard to imagine major reductions in tobacco - related NCDs without the contribution of tobacco harm reduction. Even though most of us would prefer people to quit smoking and using nicotine altogether, experience suggests that many smokers cannot or choose not to give up nicotine and will continue to smoke if there is no safer alternative available that is acceptable to them. We respectfully suggest that the following principles should underpin the public health approach to tobacco harm reduction, with global leadership from WHO: Page 181 of 272 Statement from specialists in nicotine science and public health policy I. Tobacco harm reduction is part of the solution, not part of the problem. It could make a significant contribution to reducing the global burden of non - communicable diseases caused by smoking, and do so much faster than conventional strategies. If regulators treat low -risk nicotine products as traditional tobacco products and seek to reduce their use without recognising their potential as low -risk alternatives to smoking, they are improperly defining them as part of the problem. 2. Tobacco harm reduction policies should be evidence -based and proportionate to risk, and give due weight to the significant reductions in risk that are achieved when a smoker switches to a low risk nicotine product. Regulation should be proportionate and balanced to exploit the considerable health opportunities, while managing residual risks. The architecture of the FCTC is not currently well suited to this purpose. 3. On a precautionary basis, regulators should avoid support for measures that could have the perverse effect of prolonging cigarette consumption. Policies that are excessively restrictive or burdensome on lower risk products can have the unintended consequence of protecting cigarettes from competition from less hazardous alternatives, and cause harm as a result. Every policy related to low risk, non - combustible nicotine products should be assessed for this risk. 4. Targets and indicators for reduction of tobacco consumption should be aligned with the ultimate goal of reducing disease and premature death, not nicotine use per se, and therefore focus primarily on reducing smoking. In designing targets for the non - communicable disease (NCD) framework or emerging Sustainable Development Goals it would be counterproductive and potentially harmful to include reduction of low -risk nicotine products, such as e- cigarettes, within these targets: instead these products should have an important role in meeting the targets. 5. Tobacco harm reduction is strongly consistent with good public health policy and practice and it would be unethical and harmful to inhibit the option to switch to tobacco harm reduction products. As the WHO's Ottawa Charter states: "Health promotion is the process of enabling people to increase control over, and to improve, their health ". Tobacco harm reduction allows people to control the risk associated with taking nicotine and to reduce it down to very low or negligible levels. 6. It is counterproductive to ban the advertising of e- cigarettes and other low risk alternatives to smoking. The case for banning tobacco advertising rests on the great harm that smoking causes, but no such argument applies to e- cigarettes, for example, which are far more likely to reduce harm by reducing smoking. Controls on advertising to non- smokers, and particularly to young people are certainly justified, but a total ban would have many negative effects, including protection of the cigarette market and implicit support for tobacco companies. It is possible to target advertising at existing smokers where the benefits are potentially huge and the risks minimal. It is inappropriate to apply Article 13 of the FCTC (Tobacco advertising, promotion and sponsorship) to these products. Page 182 of 272 Statement from specialists In nicotine science and public health policy 7. It is inappropriate to apply legislation designed to protect bystanders or workers from tobacco smoke to vapour products. There is no evidence at present of material risk to health from vapour emitted from e- cigarettes. Decisions on whether it is permitted or banned in a particular space should rest with the owners or operators of public spaces, who can take a wide range of factors into account. Article 8 of the FCTC (Protection from exposure to tobacco smoke) should not be applied to these products at this time. 8. The tax regime for nicotine products should reflect risk and be organised to create incentives for users to switch from smoking to low risk harm reduction products. Excessive taxation of low risk products relative to combustible tobacco deters smokers from switching and will cause more smoking and harm than there otherwise would be. 9. WHO and national governments should take o dispassionate view of scientific arguments, and not acceptor promote flowed media or activist misinterpretations of data. For example, much has been made of 'gateway effects', in which use of low -risk products would, it is claimed, lead to use of high -risk smoked products. We are unaware of any credible evidence that supports this conjecture. Indeed, similar arguments have been made about the use of smokeless tobacco in Scandinavia but the evidence is now clear that this product has made a significant contribution to reducing both smoking rates and tobacco - related disease, particularly among males. 10. WHO and parties to the FCTC need credible objective scientific and policy assessments with an international perspective. The WHO Study Group on Tobacco Product Regulation (TobReg) produced a series of high quality expert reports between 2005 and 2010. This committee should be constituted with world -class experts and tasked to provide further high -grade independent advice to the WHO and Parties on the issues raised above. The potential for tobacco harm reduction products to reduce the burden of smoking related disease is very large, and these products could be among the most significant health innovations of the 21" Century — perhaps saving hundreds of millions of lives. The urge to control and suppress them as tobacco products should be resisted and instead regulation that is fit for purpose and designed to realise the potential should be championed by WHO. We are deeply concerned that the classification of these products as tobacco and their inclusion in the FCTC will do more harm than good, and obstruct efforts to meet the targets to reduce non - communicable disease we are all committed to. We hope that under your leadership, the WHO and FCTC will be in the vanguard of science- based, effective and ethical tobacco policy, embracing tobacco harm reduction. We would be grateful for your considered reaction to these proposals, and we would like to request a meeting with you and relevant staff and a small delegation of signatories to this letter. This statement and any related information will be available on the Nicotine Science and Policy web site (http: / /nicotinepolicy.net) from 29 May 2014. Yours sincerely, Page 183 of 272 Statement from specialists in nicotine science and public health policy Signatories this statement at 26 May 2014 Professor David Abrams Professor of Health Behavior and Society. The Johns Hopkins Bloomberg School of Public Health. Maryland. USA. Professor of Oncology (adjunct). Georgetown University Medical Center, Lombardi Comprehensive Cancer Center. Washington DC. United States of America Professor Tony Ax6II Emeritus Professor Geriatric Dentistry Consultant in Oral Medicine Sweden Professor Pierre Bartsch Respiratory physician, Faculty of Medicine University of Liege Belgium Professor Linda Bauld Professor of Health Policy Director of the Institute for Social Marketing Deputy Director, UK Centre for Tobacco and Alcohol Studies University of Stirling United Kingdom Professor Ron Borland Nigel Gray Distinguished Fellow in Cancer Prevention at Cancer Council Victoria Professorial Fellow School of Population Health and Department of Information Systems University of Melbourne, Australia Professor John Britton Professor of Epidemiology; Director, UK Centre for Tobacco & Alcohol Studies, Faculty of Medicine & Health Sciences University of Nottingham, United Kingdom Associate Professor Chris Bullen Director, National Institute for Health Innovation School of Population Health, University of Auckland, New Zealand Professor Emeritus Andre Castonguay Faculty of Pharmacy Universite Laval, Quebec, Canada. Dr Lynne Dawkins Senior Lecturer in Psychology, Co- ordinator: Drugs and Addictive Behaviours Research Group School of Psychology, University of East London, United Kingdom Professor Ernest Drucker Professor Emeritus Department of Family and Social Medicine, Montefiore Medical Center /Albert Einstein College of Medicine Mailman School of Public Health Columbia University United States of America Professor Jean Frangois Etter Associate Professor Institut de sante globale, Faculte de medecine, Universite de Geneve, Switzerland Dr Karl Fagerstrom President, Fagerstrom Consulting AS, Vaxholm, Sweden Dr Konstantinos Farsalinos Researcher, Onassis Cardiac Surgery Center, Athens, Greece Researcher, University Hospital Gathuisberg, Leuven, Belgium Professor Antoine Flahault Directeur de I'Institut de Sante Globale Faculte de Medecine, Universite de Geneve, Suisse/ Institute of Global Health, University of Geneva, Switzerland Professor of Public Health at the Faculte de Medecine, Universite Paris Descartes, Sorbonne Paris Cite, France Page 184 of 272 Statement from specialists in nicotine science and public health policy Dr Coral Gartner Senior Research Fellow University of Queensland Centre for Clinical Research The University of Queensland, Australia Dr Guillermo Gonzalez Psychiatrist Comisidn de Rehabilitacidn en Enfermedad Mental Grave Clinics San Miguel Madrid, Spain Dr Nigel Gray Member of Special Advisory Committee on Tobacco Regulation of the World Health Organization Honorary Senior Associate Cancer Council Victoria Australia Professor Peter Hajek Professor of Clinical Psychology and Director, Health and Lifestyle Research Unit UK Centre for Tobacco and Alcohol Studies Wolfson Institute of Preventive Medicine, Barts and The London School of Medicine and Dentistry Queen Mary University of London, United Kingdom Professor Wayne Hall Director and Inaugural Chair, Centre for Youth Substance Abuse Research University of Queensland Australia Professor John Hughes Professor of Psychology, Psychiatry and Family Practice University of Vermont United States of America Professor Martin Jarvis Emeritus Professor of Health Psychology Department of Epidemiology & Public Health University College London, United Kingdom Professor DidierJayle Professeur d'addictologie Conservatoire National des Arts et Metiers Paris, France Dr Martin Juneau Directeur, Direction de la Pr §vention Institut de Cardiologie de Montreal Professeur Titulaire de Clinique Faculty de Medecine, University de Montreal, Canada Dr Michel Kazatchkine Member of the Global Commission on Drug Policy Senior fellow, Global Health Program, Graduate institute, Geneva, Switzerland Professor Demetrios Kouretas School of Health Sciences and Vice Rector University of Thessaly, Greece Professor Lynn Kozlowski Dean, School of Public Health and Health Professions, Professor of Community Health and Health Behavior, University at Buffalo, State University of New York, United States of America Professor Eva Kralikova Institute of Hygiene and Epidemiology Centre for Tobacco - Dependence First Faculty of Medicine Charles University in Prague and General University Hospital in Prague, Czech Republic Professor Michael Kunze Head of the Institute for Social Medicine Medical University of Vienna, Austria Dr Murray Laugesen Director Health New Zealand, Lyttelton, Christchurch, New Zealand Page 185 of 272 Statement from specialists in nicotine science and public health policy Dr Jacques Le Houezec Consultant in Public Health, Tobacco dependence, Rennes, France Honorary Lecturer, UK Centre for Tobacco Control Studies, University of Nottingham, United Kingdom Dr Kgosi Letlape President of the Africa Medical Association Former President of the World Medical Association Former Chairman of Council of the South African Medical Association South Africa Dr Karl Erik Lund Research director Norwegian Institute for Alcohol and Drug Research, Oslo, Norway Dr Gerard Mathern President de I'Institut Rhone -Alpes de Tabacologie Saint - Chamond, France Professor Richard Mattick NHMRC Principal Research Fellow Immediate Past Director NDARC (2001- 2009) National Drug and Alcohol Research Centre ( NDARC) Faculty of Medicine The University of New South Wales, Australia Professor Ann McNeill Professor of Tobacco Addiction Deputy Director, UK Centre for Tobacco and Alcohol Studies National Addiction Centre Institute of Psychiatry King's College London, United Kingdom Dr Hayden McRobbie Reader in Public Health Interventions, Wolfson Institute of Preventive Medicine, Queen Mary University of London, United Kingdom Dr Anders Milton Former President of the Swedish Red Cross Former President and Secretary of the Swedish Medical Association Former Chairman of the World Medical Association Owner 8 Principal Milton Consulting, Sweden Professor Marcus Munafo Professor of Biological Psychology MRC Integrative Epidemiology Unit at the University of Bristol UK Centre for Tobacco and Alcohol Studies School of Experimental Psychology University of Bristol, United Kingdom Professor David Nutt Chair of the Independent Scientific Committee on Drugs (UK) Edmund J Safra Professor of N europsychopharmacology Head of the Department of Neuropsychopharmacology and Molecular Imaging Imperial College London, United Kingdom Dr Gaston Ostiguy Professeur agrege Directeur de la Clinique de cessation tabagique Centre universitaire de same McGill (CUSM) Institut thoracique de Montreal, Canada Professor Riccardo Polosa Director of the Institute for Internal Medicine and Clinical Immunology, University of Catania, Italy. Dr Lars Ramstrom Director Institute for Tobacco Studies Toby, Sweden Page 186 of 272 Statement from specialists in nicotine science and public health policy Dr Martin Raw Special Lecturer UK Centre for Tobacco and Alcohol Studies Division of Epidemiology and Public Health University of Nottingham, United Kingdom Professor Andrzej Sobczak Department of General and Inorganic Chemistry, Faculty of Pharmacy and Laboratory Medicine, Medical University of Silesia, Katowice, Poland Institute of Occupational Medicine and Environmental Health Sosnowiec, Poland Professor Gerry Stimson Emeritus Professor, Imperial College London; Visiting Professor, London School of Hygiene and Tropical Medicine United Kingdom Professor Tim Stockwell Director, Centre for Addictions Research of BC Professor, Department of Psychology University of Victoria, British Columbia, Canada Professor David Sweanor Adjunct Professor, Faculty of Law, University of Ottawa Special Lecturer, Division of Epidemiology and Public Health, University of Nottingham, United Kingdom Professor Umberto Tirelli Director Department of Medical Oncology National Cancer Institute of Aviano Italy Professor Umberto Veronesi Scientific Director IEO Istituto Europeo di Oncologia Former Minister of Health, Italy Professor Kenneth Warner Avedis Donabedian Distinguished University Professor of Public Health Professor, Health Management & Policy School of Public Health University of Michigan United States of America Professor Robert West Professor of Health Psychology and Director of Tobacco Studies Health Behaviour Research Centre, Department of Epidemiology & Public Health, University College London United Kingdom Professor Dan Xiao Director of Department Epidemiology WHO Collaborating Center for Tobacco or Health Beijing Institute of Respiratory Medicine, Beijing Chao -Yang Hospital, China Dr Derek Yach Former Executive Director, Non - Communicable Diseases Former Head of Tobacco Free Initiative, World Health Organisation (1995 -2004) Senior Vice President Vitality Group plc Director, Vitality Institute for Health Promotion United States of America Page 187 of 272 Comments Directed to the FDA Deeming Docket ID: FDA - 2014 -N -0189; RIN: 0910 -AG38 Electronic cigarettes are not tobacco products and should not be treated as such. Deeming them as tobacco is a grave error with deadly consequences for more than 40 million American smokers who will be denied access to an alternative that is more than 1,000 times safer than combustible tobacco. The proposed deeming regulations would remove more than 99% of electronic cigarette (ecig) products from the market and deliver the entire ecig business into the hands of Big Tobacco, doing more damage to public health than any cigarette company ever accomplished. This is because many of its premises are constructed on faulty assumptions (http: / /Iink.springer.com /article /10....204- 013 - 1127 -0), junk science ( http: // tobaccoanalysis. blogspot.com /...ttle- more.htmi), and unsubstantiated propaganda ( http:// tobaccoanalysis .blogspot.com /...rettes- by.html) from the tobacco control industry (TCI). "No Evidence" One of the most flagrant exaggerations perpetrated by TCl and unfortunately reiterated numerous times by this proposed regulation is in the assertion that little or nothing is known about ecigs, that health effects are completely unknown, and that very little research had been done on the subject. These statements are demonstrably false In light of the recent systematic literature review published by Zyoud et al (2014;http: / /www.biomedcentral com /content 458 -14 -667 odf). These authors searched for all available peer- reviewed literature on the subject of ecigs and retrieved 356 documents, among which 31.5% were original journal articles, 16% letters to the editor, 7.9% review articles, and 44.6% documents that were classified as other types of publications. The retrieved documents were published in 162 peer - reviewed journals, by scientists from 27 countries. These authors also found that FDA was the most productive institution for articles related to eggs. All 356 documents discussed by Zyoud et al (2014) should be mandatory reading for any professional and /or regulator with a serious and honest commitment to improving public health and reducing smoking rates. All ought to be critically reviewed, referenced, and thoroughly discussed by any evidence -based regulatory document related to ecigs. The critical review ought to be performed by qualified, impartial scientists with the motivation and ability to distinguish slanted junk science and deceptive inference from rigorous studies employing the scientific method, using appropriate analyses, and coming to defensible conclusions. None of these appear to apply to the current version of the proposed deeming regulation. "Cardiac Effects" Existing research already indicates that the risk profile of ecigs is actually vanishingly small. For example, a recent study by Farsalinos et al. (2014; htto: / /www.ncbi.nlm nih.gov/oubmed /24958250) examined the acute effects of ecig use on cardiac function and contrast these against the effects of smoking combustible tobacco cigarettes. The study concluded that "acute smoking causes a delay in myocardial relaxation, electronic cigarette use has no immediate effects. Electronic cigarettes' role in tobacco harm reduction should be studied intensively in order to determine whether switching to electronic cigarette use may have long -tens beneficial effects on smokers' health," Another study conducted research on the direct effects of ecig vapor on cultured myocardial cells (http>1[www.mMLc-om/1660- 4601/10/10/5146) and concluded that ecig vapor was significantly less toxic than tobacco smoke extract. The toxicity of vapor to myocardial cells in culture was generally low, and only Page 188 of 272 observable at the highest concentrations tested. Moreover it was not related to nicotine content, rather to specific constituents of flavoring additives. The majority of the vapor samples were found to have no adverse effects on cardiac cells, with cell survival rates similar to controls. However, there were 4 samples showing reduced cell survival suggesting that a very small proportion of flavorings may cause some harm, albeit orders of magnitude lower compared to tobacco cigarettes. Even the worst performing e- liquids in this study were 3 times less harmful compared to cigarette smoke. Since flavors play an important role in the acceptance and success of ecigs, all flavors should be tested in order to identify which may be harmful to use. Taken together, these results strongly indicate that the risk profile of ecigs is vanishingly small, and may well be reduced even further by thoughtful research of flavoring compounds. The FDA has a mandate and a moral obligation to protect public health by encouraging all smokers to switch to far less hazardous electronic cigarettes and to fund research that will further improve their risk profile. Researchers who are not conflicted by any current or previous association with the tobacco control industry, pharmaceuticals, or tobacco should be supported and encouraged to pursue these studies. Continued improvement and innovation of electronic cigarettes is in the interest of public health, not snubbing them by deeming as tobacco products. "Burstyn Study" The evaluation of the health effects of ecigs in Section IV.B is particularly egregious, being wrought with deprecated information, inaccuracies, and prejudice. Conspicuously, this section does not reference the single most comprehensive review study to date on the risks posed by ecig use published by Burstyn (2013). This study reviewed more than 9000 observations of the chemistry of ecig aerosol and compared them against worst -case exposure scenarios. The results unequivocally indicate that the vast majority of predicted exposures are «1% of Threshold Limit Values (TLV) for involuntary workplace exposures. The study concludes that "there was no evidence of potential for exposures of e- cigarette users to contaminants that are associated with risk to health at a level that would warrant attention if it were an involuntary workplace exposures by approaching half of TLV." And further that "exposures of bystanders are likely to be orders of magnitude less, and thus pose no apparent concern." This study should be mandatory reading for any professional and /or regulator with a serious and honest commitment to improving public health and reducing smoking rates. "Hyperbole" FDA states: "There are no significant safety concerns associated with using more than one OTC NRT [over the counter nicotine replacement therapy] at the same time, or using an OTC NRT at the same time as another nicotine - containing product — including a cigarette." (http://www.fda.govlforconsumers/cons ... /ucm345087. htm) New research from Europe verifies the safety of ecig liquids and concludes "most of the media and regulatory attention surrounding the risks of nicotine solutions were hyperbole." (http://ecita.org.uk/docs/EU _Classif...l_toxicity.pdf) Electronic cigarette liquids with a concentration of less than 2.5% (25 mg /ml) should not be classified as a hazardous substance for acute oral or dermal toxicity (under the EC regulations, which are aligned with the UN Globally Harmonized System of Classification and Labeling of Chemicals). Higher nicotine concentrations (up to 5% or 50 mg /ml for dermal classification, and even higher for oral classification) should be considered as CLP category 4, the same labeling requirement used for liquid hand soap. This report was peer- reviewed and endorsed by three prominent health researchers, as documented here: http: / /www.ecita .org.uk /blog /index.p...c -is -e- liquid/ Page 189 of 272 "Youth and Quitting Studies" All available (and respectable) scientific evidence indicates that electronic cigarettes (e -cigs or edgs) are a major positive development in the public health field and have helped tens of millions of smokers (worldwide) switch to an alternative that is much safer than combustible tobacco. In addition, this evidence thoroughly and definitively debunks the "gateway" myth maliciously invented and propagated by the tobacco control industry. The following studies reinforce these statements and should be reviewed by any professional and /or regulator with a serious and honest commitment to improving public health and reducing smoking rates. A new report from ASH Scotland (htti2://Www.ashscotland.orci.uk/media/ rt%2007 14 pdf) . found: - 22% of teens (13 -18 years) smoked one or more cigarettes per week, - 15% of teen smokers used an e-cig one or more times per week, - 2% of teen nonsmokers used an e-cig one or more times per week, - 39% of teens reported ever use of an e-cig, - Among teen smokers who used a -cigs, 29% did so to quit smoking, 23% did so to reduce cigarette consumption, - 53% of teens agreed that e-cigs are less harmful than cigarettes, while 12% disagreed, - 12% of teens thought cigarette smoking was cool, and 12% thought e-cig use was cool A similar survey from Wales (ASH Wales; htto: / /www.ashwales.om.ukicreo file... march 2014.odf) had even stronger evidence that e- cigarettes help smokers quit as well as categorically do not entice non - smoking youth: - 56.1% of teen smokers ever used an e-cig, - 3.8% of teens who never smoked had ever used an e-cig, - 33.7% of teen smokers currently use a -rigs, - 5.6% of teen exsmokers currently use a -cigs - .3% of teens who never smoked currently use a -cigs Older results from England also agree (htto: /Iwww.ash.orci.uUfiles /documents /ASH 891.1do: - The success rate for smoking cessation in the UK by use of an ecig is 33% - The number of UK vapers has tripled in the last 2 years [1] - There are more than 2 million vapers in the UK although some have now totally quit (ceased use of any /all inhalation products) - About 20% of smokers are now vapers or have totally quit both smoking and vaping by use of an ecig - About 700,000 vapers have quit smoking by use of an ecig or have totally quit - So around 7% [2] of UK smokers have quit by use of an ecig, and dearly that number will rise significantly over time - The number of non - smokers who are regular edg users is almost unmeasurably small - The number of minors (under -18s) who are regular ecig users is almost unmeasurably small In addition, based on results from a recent publication from Harvard, Dr. Konstantinos Farsalinos, cardiologist at the Onassis Cardiac Surgery Centre in Athens, told the New Scientist: "This study verifies that e- cigarette use does not renormalize smoking. The results show minimal adoption by non - smokers." (htti)s://uk.news.yahoo.com/harvard-st ... 6.html#qHLTyUi). The FDA has a mandate and a moral obligation to protect public health by actively seeking and critically reviewing all the available evidence, as well as funding additional research that will further improve our Page 190 of 272 understanding of ecigs. Researchers who are not conflicted by any current or previous association with tobacco control, pharmaceuticals, or Big Tobacco should be supported and encouraged to pursue these studies. Continued improvement and innovation of electronic cigarettes is in the interest of public health, not snubbing them by deeming as tobacco products. Burstyn (2013): http:// publichealth. drexel .edu /— /med...ealth /ms08.pdf Page 191 of 272 Technical Report July - August 2013 Peering through the mist: What does the chemistry of contaminants in electronic cigarettes tell us about health risks? Igor Burstyn, PhD Department of Environmental and occupational Health School of Public Health Drexel University 1505 Race St., Mail Stop #1034 Philadelphia, PA 19102 USA Tel: 215.762.2909 1 Fax: 215.762.8846 igor.burstyn@drexel.edu Abstract The aim of this paper is to review available data on chemistry of aerosols and liquids of electronic cigarettes and to make predictions about compliance with occupational exposure limits of personal exposures of vapers (e- cigarette users) to compounds found in the aerosol. Both peer- reviewed and °grey" literatures were accessed and more than 9000 observations of highly variable quality were extracted. Comparisons to the most universally recognized workplace exposure standards, Threshold Limit Values (TLVs), were conducted under "worst case" assumptions about both chemical content of aerosol and liquids as well as behavior of vapers. The calculations reveal that there was no evidence of potential for exposures of e- cigarette users to contaminants that are associated with risk to health at a level that would warrant attention if it were an involuntary workplace exposures by approaching half of TLV. The vast majority of predicted exposures are «i% of TLV. Predicted exposures to acrolein and formaldehyde are typically <5% TLV. Considering exposure to the aerosol as a mixture of contaminants did not indicate that exceeding half of TLV for mixtures was plausible. Only exposures to the declared major ingredients -- propylene glycol and glycerin -- warrant attention because of precautionary nature of TLVS for exposures to hydrocarbons with no established toxicity. Comparing the exposure to nicotine to existing occupational exposure standards is not valid so long as nicotine - containing liquid is not mislabeled as nicotine -free. It must be noted that the quality of much of the data that was available for these assessment was poor, and so much can be done to improve certainty in this risk assessment. However, the existing research is of the qualitythat is comparable with most workplace assessments for navel technologies. In summary, an analysis of current state of knowledge about chemistry of liquids and aerosols associated with electronic cigarettes indicates that there is no evidence that vaping produces inhalable exposures to contaminants of the aerosol that would warrant health concerns by the standards that are used to ensure safety of workplaces. However, the aerosol generated during vaping as a whole (contaminants plus declared ingredients), if it were an emission from industrial process, creates personal exposures that would justify surveillance of health among exposed persons in conjunction with investigation of means to keep health effects as low as reasonably achievable. Exposures of bystanders are likely to be orders of magnitude less, and thus pose no apparent concern. Keywords: vaping, e- cigarettes, tobacco harm reduction, risk assessment, aerosol, occupational exposure limit Page 192 of 272 Technical Report July - August 2013 Introduction Electronic cigarettes (also known as e- cigarettes) are generally recognized as a safer alternative to combusted tobacco products (reviewed in [3]), but there are conflicting claims about the degree to which these products warrant concern for the health of the vapers (e- cigarette users). A vaper inhales aerosol generated during heating of liquid contained in the e- cigarette. The technology and patterns of use are summarized by Etter [1], though there is doubt about how current, complete and accurate this information is. Rather conclusive evidence has been amassed to date on comparison of the chemistry of aerosol generated by electronic cigarettes to cigarette smoke [2 -8]. However, it is meaningful to consider the question of whether aerosol generated by electronic cigarettes would warrant health concerns on its own, in part because vapers will include persons who would not have been smokers and for whom the question of harm reduction from smoking is therefore not relevant, and perhaps more importantly, simply because there is value in minimizing the harm of those practicing harm reduction. One way of approaching risk evaluation in this setting is to rely on the practice, common in occupational hygiene, of relating the chemistry of industrial processes and the emissions they generate to the potential worst case of personal exposure and then drawing conclusions about whether there would be interventions in an occupational setting based on comparison to occupational exposure limits, which are designed to ensure safety of unintentionally exposed individuals. In that context, exposed individuals are assumed to be adults, and this assumption appears to be suitable for the intended consumers of electronic cigarettes. "Worst case" refers to the maximum personal exposure that can be achieved given what is known about the process that generates contaminated atmosphere (in the context of airborne exposure considered here) and the pattern of interaction with the contaminated atmosphere, it must be noted that harm reduction notions are embedded in this approach since it recognizes that while elimination of the exposure may be both Impossible and undesirable, there nonetheless exists a level of exposure that is associated with negligible risks, To date, a comprehensive review of the chemistry of electronic cigarettes and the aerosols they generate has not been conducted, depriving the public of the important element of a risk - assessment process that is mandatory for environmental and occupational health policy making. The present work considers both the contaminants present in liquids and aerosols as well as the declared ingredients In the liquids. The distinction between exposure to declared ingredients and contaminants of a consumer product is important in the context of comparison to occupational or environmental exposure standards. Occupational exposure limits are developed for unintentional exposures that a person does not elect to experience. For example, being a bread baker is a choice that does not involve election to be exposed to substances that cause asthma that are part of the flour dust (most commonly, wheat antigens and fungal enzymes). Therefore, suitable occupational exposure limits are created to attempt to protect individuals from such risk on the job, with no presumption of "assumed risk" inherent in the occupation. Likewise, special regulations are in effect to protect persons from unintentional exposure to nicotine in workplaces (htto: / /www.cdc.gov /niosh /docs /81- 123 /odfs /0446.odf; accessed July 12, 2013), because in environments where such exposures are possible, it is reasonable to protect individuals who do not wish to experience its effects. in other words, occupational exposure limits are based on protecting people from involuntary and unwanted exposures, and thus can be seen as appropriately more stringent than the standards that might be used for hazards that people intentionally choose to accept. By contrast, a person who elects to lawfully consume a substance is subject to different risk tolerance, as is demonstrated in the case of nicotine by the fact that legally sold cigarettes deliver doses of nicotine that exceed occupational exposure limits[9]: daily intake of 20 mg of nicotine, assuming nearly 100% absorption in the lungs and Page 193 of 272 Technical Report July - August 2013 inhalation of 4 m3 of air, corresponds to roughly 10 times the occupational exposure limit of 0.5 mg /m3 atmosphere over 8 hours[SO]. Thus, whereas there is a clear case for applicability of occupational exposure limits to contaminants in a consumer product (e.g. aerosol of electronic cigarettes), there is no corresponding case for applying occupational exposure limits to declared ingredients desired by the consumer in a lawful product (e.g. nicotine in the aerosol of an electronic cigarette). Clearly, some limits must be set for voluntary exposure to compounds that are known to be a danger at plausible doses (e.g. limits on blood alcohol level while driving), but the regulatory framework should reflect whether the dosage is intentionally determined and whether the risk is assumed by the consumer. In the case of nicotine in electronic cigarettes, if the main reason the products are consumed is as an alternative source of nicotine compared to smoking, then the only relevant question is whether undesirable exposures that accompany nicotine present health risks, and the analogy with occupational exposures holds. In such cases it appears permissible to allow at least as much exposure to nicotine as from smoking before admitting to existence of new risk. It is expected that nicotine dosage will not increase in switching from smoking to electronic cigarettes because there is good evidence that consumers adjust consumption to obtain their desired or usual dose of nicotine[I i]. The situation is different for the vapers who want to use electronic cigarettes without nicotine and who would otherwise not have consumed nicotine. For these individuals, it is defensible to consider total exposure, including that from any nicotine contamination, in comparison to occupational exposure limits, In consideration of vapers who would never have smoked or would have quit entirely, it must be remembered that the exposure is still voluntary and intentional, and comparison to occupational exposure limits is legitimate only for those compounds that the consumer does not elect to inhale. The specific aims of this review were to: 1. Synthesize evidence on the chemistry of liquids and aerosols of electronic cigarettes, with particular emphasis on the contaminants. 2. Evaluate the quality of research on the chemistry of liquids and aerosols produced by electronic cigarettes. 3. Estimate potential exposures from aerosols produced by electronic cigarettes and compare those potential exposures to occupational exposure standards. Methods Literature search Articles published in peer- reviewed journals were retrieved from PubMed ( http: / /www.ncbi.nlm.nih.gov /pubmed /) using combinations of the following keywords: "electronic cigarettes ", "e- cigarettes ", "smoking alternatives ", "chemicals ", "risks ", "electronic cigarette vapor", "aerosol ", "ingredients ", "e- cigarette liquid ", "e -cig composition ", "e- cig chemicals ", "e -cig chemical composition ", "e -juice electronic cigarette ", "electronic cigarette gas ", "electronic cigars ". In addition, references of the retrieved articles were examined to identify further relevant articles, with particular attention paid to non -peer reviewed reports and conference presentations. Unpublished results obtained through personal communications were also reviewed. The Consumer Advocates for Smoke -free Alternatives Association (CASAA) was asked to review the retrieved bibliography to identify any reports or articles that were missed. The papers and reports were retained for analysis if they reported on the chemistry of e- cigarette liquids or aerosols. No explicit quality control criteria were applied in selection of literature for examination, except that secondary reporting of analytical results was not used. Where substantial methodological problems that precluded interpretation of analytical results were noted, these are described below. For each article that contained relevant analytical results, the compounds quantified, limits of detection, and analytical results were summarized in a spreadsheet. Wherever possible, individual analytical results (ratherthan averages) were recorded (see electronic Appendix A: 3 Page 194 of 272 Technical Report July - August 2013 hrtos : / /dI.dropboxusercoutent.com/u '4285761 /CASAA/eAppendixA xlsx). Data contained in Appendix A is not fully summarized in the current report but can be used to investigate a variety of specific questions that may interest the reader. Each entry in Appendix A is identified by a Reference Manage ID that is linked to source materials in a list in Appendix 6 (linked via Ref/D: hops: iidl. dropboxusereontent. wrniu ;428576tiCASAA/AooendixB.rtfl and attached electronic copies of all original materials (Biobiiography zip: bttos :tldl.drophoxuserconteitt.cora /u/ 4285761 iCASAA /bibliogml)bv.zip). Comparison of observed concentrations in aerosol to occupational exposure limits For articles that reported mass or concentration of specific compounds in the aerosol (generated by smoking machines or from volunteer vapers), measurements of compounds were converted to concentrations in the "personal breathing zone which can be compared to occupational exposure limits (OELs). The 2013 Threshold Limit Values (TLVs)[10] were used as OELs because they are the most up to date and are most widely recognized internationally when local jurisdictions do not establish their own regulations (see http: / /www.ilo.ora /pshene/ hart- ivioccupatiolial4ivgicnditem /575; accessed July 3, 2013). Whenever there was an uncertainty in how to perform the calculation, a "worst case" scenario was used, as is the standard practice in occupational hygiene, where the initial aim is to recognize potential for hazardous exposures and to err on the side of caution. The following assumptions were made to enable the calculations that approximate the worst -case personal exposure of a vaper (Equation 1): 1. Air the vaper breathes consists of a small volume of aerosol generated by e- cigarettes that contains a specific chemical plus pristine air; 2. The volume of aerosols inhaled from e- cigarettes is negligible compared to total volume of air inhaled; 3. The period of exposure to the aerosol considered was normalized to 8 hours, for comparability to the standard working shift for which TLVs were developed (this does not mean only 8 hours worth of vaping was considered (see point 4) but rather that amount of breathing used to dilute the day's worth of vaping exposure was 8 hours); 4. Consumption of 150 puffs in 8 hours (an upper estimate based on a rough estimate of 150 puffs by a typical vaper in a day[3]) was assumed to be conservative; S. Breathing rate is 8liters per minute (12,131; 6. Each puff contains the same quantity of compounds studied. 1mg/m31= mg/puff x puffs /(8 hr day) x 1 /(m3 air inhaled in 8 hr) Eq.1 The only exception to this methodology was when assessing a study of aerosol emitted by 5 vapers in a 60 m3 room over 5 hours that seemed to be a sufficient approximation of worst -case "bystander" exposure[6]. All calculated concentrations were expressed as the most stringent (lowest) TLV for a specific compound (i.e. assuming the most toxic form if analytical report is ambiguous) and expressed as "percent of TLV ". Considering that all the above calculations are approximate and reflecting that exposures in occupational and general environment can easily vary by a factor of 10 around the mean, we added a 10 -fold safety factor to the "percent of TLV" calculation. Details of all calculations are provided in an Excel spreadsheet (see electronic Appendix C: htt ns: Cdl. drnnhoxu sercontent.com /u!4285761 /CASAAieAnpendixC.xisx). No systematic attempt was made to convert the content of the studied liquids into potential exposures because sufficient information was available on the chemistry of aerosols to use those studies rather than making the necessary ' Atmosphere that contains air inhaled by a person Page 195 of 272 Technical Report July - August 2013 simplifying assumptions to do the conversion. However, where such calculations were performed in the original research, the following approach as used: under the (probably false —see the literature on formation of carbonyl compounds below) assumption of no chemical reaction to generate novel Ingredients, composition of liquids can be used to estimate potential for exposure if it can be established how much volume of liquid is consumed irr given 8 hours, following an algorithm analogous to the one described above for the aerosols (Equation 2): [mg/m a = mg/(mL liquid) x (mL liquid) /puff x puffs /(8 hr day) x 1/(m3 air inhaled in 8 hr) Eq. 2 Comparison to cigarette smoke was not performed here because the fact that e- cigarette aerosol is at least orders of magnitude less contaminated by toxic compounds is uncontroversial (2 -8]. Results and discussion General comments on methods In excess of 9,000 determinations of single chemicals (and rarely, mixtures) were reported in reviewed articles and reports, typically with multiple compounds per electronic cigarette tested [2- 8,14 -42]. Although the quality of reports is highly variable, if one assumes that each report contains some information, this asserts that quite a bit is known about composition of e- cigarette liquids and aerosols. The only report that was excluded from consideration was work of McAuley et al.[23] because of clear evidence of cross - contamination — admitted to by the authors — with cigarette smoke and, possibly, reagents. The results pertaining to non - detection of tobacco- specific nitrosamines (TSNAs) are potentially trustworthy, but those related to PAN are not since it is incredible that cigarette smoke would contain fewer polycyciic aromatic hydrocarbons (PAN; arising in incomplete combustion of organic matter) than aerosol of e- cigarettes that do not burn organic matter (23). In fairness to the authors of that study, similar problems may have occurred in other studies but were simply not reported, but it is impossible to include a paper in a review once it is known for certain that its quantitative results are not trustworthy. When in doubt, we erred on the side of trusting that proper quality controls were in place, a practice that is likely to increase appearance of atypical or erroneous results in this review. From this perspective, assessment of concordance among independent reports gains higher importance than usual since it is unlikely that two experiments would be flawed in the same exact manner (though of course this cannot be assured). It was judged that the simplest form of publication bias — disappearance of an entire formal study from the available literature — was unlikely given the exhaustive search strategy and the contested nature of the research question. It is clearly the case that only a portion of all industry technical reports were available for public access, so it is possible that those with more problematic results were systematically suppressed, though there is no evidence to support this speculation. No formal attempt was made to ascertain publication bias in situ though it is apparent that anomalous results do gain prominence in typical reviews of the literature: diethylene glycol[43,44] detected at non - dangerous levels (see details below) in one test of 18 of early - technology products by FDA[22] and one outlier in measurement of formaldehyde content of exhaled air [4] and aldehydes in aerosol generated from one e- cigarette in Japan [37]. It must be emphasized that the alarmist report of aldehydes in experiments presented in [37] is based on the concentration in generated aerosol rather than air inhaled by the vaper over prolonged period of time (since vapers do not inhale only aerosol). Thus, results reported in [37] cannot be the basis of any claims about health risk, a fallacy committed both by the authors themselves and commentators on this work [44]. 5 Page 196 of 272 Technical Report July - August 2013 It was also unclear from [37) what the volume of aerosol sampled was —a critical item for extrapolating to personal exposure and a common point of ambiguity in the published reports. However, in a personal exchange with the authors of [37][luly 11, 2013], It was clarified that the sampling pump drew air at 500 ml./min through e- cigarette for 10 min, allowing more appropriate calculations for estimation of health risk that are presented below. Such misleading reporting is common in the field that confuses concentration in the aerosol (typically measured directly) with concentration in the air Inhaled by the vaper (never determined directly and currently requiring additional assumptions and modeling). This is important because the volume of aerosol inhaled [maximum —8 L/day) is negligible compared to the volume of air inhaled daily (81./min); this point is illustrated in the Figure. A similar but more extreme consideration applies to the exposure of bystanders which is almost certainly several orders of magnitude lower than the exposure of vapers. In part this is due to the absorption, rather than exhalation, of a portion of the aerosol by the vapers: there is no equivalent to the "side- stream" component of exposure to conventional cigarettes, so all of the exposure to bystanders results from exhalation. Furthermore, any environmental contamination that results from exhalation of aerosol by vaper will be diluted into the air prior to entering a bystander's personal breathing zone. Lastly, the number of puffs that affects exposure to bystander is likely to be much smaller than that of a vaper unless we are to assume that vaper and bystander are inseparable. It is unhelpful to report results in cigarette - equivalents, as in [42], because this does not enable one to estimate exposures of vapers - Moreover, there is no value in comparison of the content of e- cigarette aerosol to cigarette smoke when the two products produce emissions that are orders of magnitude apart. To be useful for risk assessment, the results on the chemistry of the aerosols and liquids must be reported in a form that enables the calculations in Equations 1 and 2. It must be also be noted that typical investigations consisted of qualitative and quantitative phases such that quantitative data is available mostly on compounds that passed the qualitative screen. This biased all reports on concentration of compounds towards both higher levels and chemicals which a particular lab was most adept at analyzing. Declared Ingredients: comparison to occupational exposure limits Propylene glycol and glycerin have default or precautionary TLV of 10 mg/m3 over 8 hours set for all organic mists with no specific exposure limits or identified toxicity ( httv:// www .osha.gov /dts /chemicalsami3lin¢ /data /CH 243600.html; accessed July 5, 2013). These interim TLVs tend to err on the side of being too high and are typically lowered if evidence of harm to health accumulates. For example, in a study that related exposure of theatrical fogs (containing propylene glycol) to respiratory symptoms [45], "mean personal inhalable aerosol concentrations were 0.70 mg /m3 (range 0.02 to 4.1)" (46). The only available estimate of propylene concentration of propylene glycol in the aerosol indicates personal exposure on the order of 3 -4 mg/m3 in the personal breathing zone over 8 hours (under the assumptions we made for all other comparisons to TLVs) [2]. The latest (2006) review of risks of occupational exposure to propylene glycol performed by the Health Council of the Netherlands (known for OELs that are the most protective that evidence supports and based exclusively on scientific considerations rather than also accounting for feasibility as is the case for the TLVs) recommended exposure limit of 50 mg/m3 over 8 hours; concern over short-term respiratory effects was noted [htto: //www.eezondheidsraad.ni/ sites /default /files /200702OSH.odf; accessed July 29, 2013]. Assuming extreme consumption of the liquid per day via vaping (5 to 25 ml /day and 50 -95% propylene glycol in the liquid)', levels of propylene glycol in inhaled air can reach 1 -6 mg /m3. It has been suggested that propylene glycol is b This estimate of consumption was derived from informal reports from vaping community; 5 ml /day was identified as a high but not rare quantity of consumption and 25 ml /day was the high end of claimed use, though some skepticism was expressed about Page 197 of 272 Technical Report July - August 2013 very rapidly absorbed during inhalation [4,6] making the calculation under worst case scenario of all propylene glycol becoming available for inhalation credible. It must also be noted that when consuming low- nicotine or nicotine -free liquids, the chance to consume larger volumes of liquid increases (large volumes are needed to reach the target dose or there is no nicotine feedback), leading to the upper end of propylene glycol and glycerin exposure. Thus, estimated levels of exposure to propylene glycol and glycerin are close enough to TLV to warrant concern. Nicotine is present in most liquids and has TLV of 0.5 mg/m3 for average exposure intensity over 8 hours. If approximately 4 m3 of air is inhaled in 8 hours, the consumption of 2 mg nicotine from e- cigarettes in 8 hours would place the vaper at the occupational exposure limit. For a liquid that contains 18 mg nicotine /ml, TLV would be reached upon vaping - 0.1 -0.2 ml of liquid in a day, and so Is achieved for most anyone vaping nicotine- containing e- cigarettes[1]. Results presented in [24] on 16 e- cigarettes also argue in favor of exceedance of TLV from most any nicotine - containing e- cigarette, as they predict >2mg of nicotine released to aerosol in 150 puffs (daily consumption figure adopted in this report). But as noted above, since delivery of nicotine is the purpose of nicotine- containing e- cigarettes, the comparison to limits on unintended, unwanted exposures does not suggest a problem and serves merely to offer complete context. If nicotine is present but the liquid is labeled as zero- nicotine [24,43], it could be treated as a contaminant, with the vaper not intending to consume nicotine and the TLV, which would be most likely exceeded, is relevant. However, when nicotine content is disclosed, even if inaccurately, then comparison to TLV is not valid. Accuracy in nicotine content is a concern with respect to truth in advertising rather than unintentional exposure, due to self- regulation of consumption by persons who use e- cigarettes as a source of nicotine. Overall, the declared ingredients in the liquid would warrant a concern by standards used in occupational hygiene, provided that comparison to occupational exposure limits is valid, as discussed in the introduction. However, this is not to say that the exposure is affirmatively believed to be harmful; as noted, the TLVs for propylene glycol and glycerin mists is based on uncertainty rather than knowledge. These TLVs are not derived from knowledge of toxicity of propylene glycol and glycerin mists, but merely apply to any compound of no known toxicity present in workplace atmosphere. This aspect of the exposure from e- cigarettes simply has little precedent (but see study of theatrical fogs below). Therefore, the exposure will provide the first substantial collection evidence about the effects, which calls for monitoring of both exposure levels and outcomes, even though there are currently no grounds to be concerned about the immediate or chronic health effects of the exposure. The argument about nicotine is presented here for the sake of completeness and consistency of comparison to TLVs, but in itself does not affect the conclusions of this analysis because it should not be modeled as if it were a contaminant when declared as an ingredient in the liquid. Polycyclic Aromatic Hydrocarbons Polycyclic aromatic hydrocarbons (PAH) were quantified in several reports in aerosols [5,6,42] and liquids [7,18,41]. These compounds include well -known carcinogens, the levels of which are not subject to TLV but are instead to be kept "as low as reasonably achievable" (the so called ALARA principle)[10]. For PAH, only non - carcinogenic pyrene that is abundant in the general environment was detected at 36 ng/cartridge in 5 samples of liquid [7); PAHs were not detected in most of the analyses of aerosols, except for chrysene in the analysis of the aerosol of one e- cigarette[42]. Tobacco Specific Nitrosamines whether the latter quantity was truly possible. High - quality formal studies to verify these figures do not yet exist but they are consistent with report of Etter (2012). 7 Page 198 of 272 Technical Report July - August 2013 The same risk assessment considerations that exist for PAH also hold for carcinogenic tobacco - specific nitrosamines (TSNAs)[47] for which no occupational exposure limits exist because (a) these exposures do not appear to occur in occupational settings often enough to warrant development ofTLVs, and (b) it is currently accepted in establishing TLVs that carcinogens do not have minimal thresholds of toxicity. As expected because the TSNAs are contaminants of nicotine from tobacco leaf, there is also evidence of association between nicotine content of the liquid and TSNA concentrations, with reported concentrations <5 ng/cartridge tested [7]. Smaller studies of TSNA content in liquids are variable, with some not reporting any detectable levels [17,32,34] and others clearly identifying these compounds in the liquids when controlling for background contamination (n= 9)[22]. Analyses of aerosols indicate that TSNAs are present in amounts that can results in doses of <ng /day[5,32] to µg /day [8] (assuming 150 puffs /day) (see also 142]). The most comprehensive survey of TSNA content of 105 samples of liquids from 11 manufactures indicates that almost all tested liquids ( >90 %) contained TSNAs in vg/L quantities [35]. This is roughly equivalent to 1 /1000 of the concentration of TSNAs in modern smokeless tobacco products (like snus), which are in the ppm range [47]. The TSNA concentration of the liquids is orders of magnitude less than smokeless tobacco products, though the actual dosage from e- cigarettes vs. smokeless tobacco remains to be clearly understood. For example, 10 lig/L (0.01 ppm) of total TSNA in liquid[35] can translate to a daily dose of 0.000025 - 0.00005 jig from vaping (worst case assumption of 5 ml /day); if 15 g of snus Is consumed a day [48] with 1 ppm of TSNAs [47] and half of it were absorbed, then the daily dose is estimated to be 0.008 µg, which is 160 -320 times that due to the worst case of exposure from vaping. Various assumptions about absorption of TSNAs alter the result of this calculation by a factor that is dwarfed in magnitude compared to that arising from differences considered above. This is reassuring because smokeless tobacco products, such as snus, pose negligible cancer risk[49], certainly orders of magnitude smaller than smoking (if one considers the chemistry of the products alone). In general, it appears that the cautious approach in face of variability and paucity of data is to seek better understanding of predictors of presence of TSNA in liquids and aerosols so that measures for minimizing exposure to TSNAs from aerosols can be devised. This can include considering better control by manufactures of the nicotine. Volatile Organic Compounds Total volatile organic compounds (VOC) were determined in aerosol to be non- detectable[3] except in one sample that appeared to barely exceed the background concentration of 1 mg /m3 by 0.73 mg /m3 [6]. These results are corroborated by analyses of liquids[18] and most likely testify to insensitivity of employed analytic methods for total VOC for characterizing aerosol generated by e- cigarettes, because there is ample evidence that specific VOC are present in the liquids and aerosols.` Information on specific commonly detected VOC in the aerosol is given in Table Ia. It must be observed that these reported concentrations are for analyses that first observed qualitative evidence of the presence of a given VOC and thus represent worst case scenarios of exposure when VOC is present (i.e. zero exposures are missing from the overall summary of worst case exposures presented here). For most VOC and aldehydes, one can predict the concentration in air inhaled by a vaper to be «i% of TLV. The only exceptions to this generalization are: (a) acrolein: -1% of TLV (average of 12 measurements) and measurements at a mean of 2% of TLV ( average of 150 measurements)[39,40] and (b) formaldehyde: between 0 and 3% of TLV based on 18 tests (average of 12 measurements at 2% of TLV, the most reliable test) and an average of 150 results at 4% of TLV [39,40]. `The term "VOC' loosely groups together all organic compounds present in aerosol and because the declared ingredients of aerosol are organic compounds, it follows that "VOC are present" Page 199 of 272 Technical Report July - August 2013 Levels of acrolein in exhaled aerosol reported in [61 were below 0.0016 mg /m3 and correspond to predicted exposure of <1% of TLV (Table 2). It must re- emphasized that all calculations based on one electronic cigarette analyzed In [37) are best treated as qualitative in nature (i.e. indicating presence of a compound without any particular meaning attached to the reported level with respect to typical levels) due to great uncertainty about whether the manner in which the e- cigarette was operated could have resulted in overheating that led to generation of acrolein in the aerosol. In fact, a presentation made by the author of [371 clearly stated that the "atomizer, generating high concentration carbonyls, had been burned black" [39,401, In unpublished work,[39] there are individual values of formaldehyde, acrolein and glyoxal that approach TLV, but it is uncertain how typical these are because there is reason to believe the liquid was overheated; considerable variability among brands of electronic cigarettes was also noted. Formaldehyde and other aldehydes, but not acrolein, were detected in the analysis one e- cigarette [421. The overwhelming majority of the exposure to specific VOC that are predicted to result from inhalation of the aerosols lie far below action level of 50% of TLV at which exposure has to be mitigated according to current code of best practice in occupational hygiene[50]. Finding of an unusually high level of formaldehyde by Schripp et aL [4] — 0.5 ppm predicted vs. 15-minute TLV of 0.3 ppm (not given In Table 2) — is clearly attributable to endogenous production of formaldehyde by the volunteer smoker who was consuming e- cigarettes in the experimental chamber, since there was evidence of build -up of formaldehyde prior to vaping and liquids used in the experiments did not generate aerosol with detectable formaldehyde. This places generalizability of other findings from [4] in doubt, especially given that the only other study of exhaled air by vapers who were not current smokers reports much lower concentrations for the same compounds [6] (Table 2). It should be noted that the report by Romagna et oL[6] employed more robust methodology, using 5 volunteer vapers (no smokers) over an extended period of time. Except for benzene, acetic acid and isoprene, all calculated concentrations for detected VOC were much below 1% of TLV in exhaled air [6]. In summary, these results do not indicate that VOC generated by vaping are of concern by standards used in occupational hygiene. Diethylene glycol and ethylene glycol became a concern following the report of their detection by FDA[431, but these compounds are not detected in the majority of tests performed to date [3,14,16,18,22]. Ten batches of the liquid tested by their manufacture did not report any diethylene glycol above 0.05% of the liquid [41]. Methods used to detect diethylene glycol appear to be adequate to be informative and capable of detecting the compound in quantities «1% of TLV[14,16,22]. Comparison to TLV is based on a worst case calculation analogous to the one performed for propylene glycol. For diethylene glycol, TLV of 30 mg /m3 is applicable (as in the case of all aerosols with no know toxicity by inhalation), and there is a recent review of regulations of this compound conducted for the Dutch government by the Health Council of the Netherlands (jurisdiction with some of the most strict occupational exposure limits) that recommended OEL of 70 mg /m3 and noted lack of evidence for toxicity following inhalation [http: / /www.gezondheidsraad nl /sites /default /files /2007030SH Ddf• accessed July 29; 20131. In conclusion, even the quantities detected in the single FDA result were of little concern, amounting to less than 1% of TLV. Inorganic compounds Special attention has to be paid to the chemical form of compounds when there is detection of metals and other elements by inductively coupled plasma mass spectrometry (ICP- MS)[8,25). Because the parent molecule that occurs in the aerosol is destroyed in such analysis, the results can be alarmist and not interpretable for risk assessment. For example, the presence of sodium (4.18 µg /10 puffs)[25] does not mean that highly reactive and toxic sodium metal is in the aerosol, which would be impossible given its reactivity, but most likely means the presence of the ubiquitous compound that contains sodium, dissolved table salt (NaCI). If so, the corresponding daily dose of NaCl that arises from 9 Page 200 of 272 Technical Report July- August 2013 these concentrations from 150 puffs is about 10,000 times lower than allowable daily intake according to CDC ( http:// www.cdc.zov /features/dssodiurn /; accessed July 4, 2013), Likewise, a result for presence of silica is meaningless for health assessment unless the crystalline form of SiO2 is known to be present. When such ambiguity exists, a TLV equivalence calculation was not performed. We compared concentrations to TLVs when it was even remotely plausible that parent molecules were present in the aqueous solution. However, even these are to be given credence only in an extremely pessimistic analyst, and further investigation by more appropriate analytical methods could clarify exactly what compounds are present, but is not a priority for risk assessment. It should also be noted that one study that attempted to quantify metals in the liquid found none above 0.1 -0.2 ppm levels [7] or above unspecified threshold [18]. Table 1b indicates that most metals that were detected were present at <1% of TLV even if we assume that the analytical results imply the presence of the most hazardous molecules containing these elements that can occur in aqueous solution. for example, when elemental chromium was measured, it is compared to TLV for insoluble chromium IV that has the lowest TLV of all chromium compounds. Analyses of metals given in [42] are not summarized here because of difficulty with translating reported units into meaningful terms for comparison with the TLV, but only mercury (again with no information on parent organic compound) was detected in trace quantities, but arsenic, beryllium, chromium, cadmium, lead and nickel were not. Taken as the whole, it can be inferred that there is no evidence of contamination of the aerosol with metals that warrants a health concern. Consideration of exposure to a mixture of contaminants All calculations conducted so far assumed only one contaminant present in clean air at a time. What are the implications of small quantities of various compounds with different toxicities entering the personal breathing zone at the same time? For evaluation of compliance with exposure limits for mixtures, Equation 3 is used: OELmixme =S., 1(Ci/TLV ;), Eq.3 where Ci is the concentration of the i" compound (i= i,...,n, where n >1 is the number of ingredients present in a mixture) in the contaminated air and TLV; is the TLV for the f`" compound in the contaminated air; if OELm;xt",e> 1, then there is evidence of the mixture exceeding TLV. The examined reports detected no more than 5 -10 compounds in the aerosol, and the above calculation does not place any of them out of compliance with TLV for mixture. Let us imagine that 50 compounds with TLVs were detected. Given that the aerosol tends to contain various compounds at levels, on average, of no more than 0.5% of TLV (Table 1), such a mixture with 50 ingredients would be at 25% of TLV, a level that is below that which warrants a concern, since the "action level" for implementation of controls is traditionally set at 50% of TLV to ensure that the majority of persons exposed have personal exposure below mandated limit (50). Pellerino et al.[2] reached conclusions similar to this review based on their single experiment: contaminants in the liquids that warrant health concerns were present in concentrations that were less than 0.1% of that allowed by law in the European Union. Of course, if the levels of the declared ingredients (propylene glycol, glycerin, and nicotine) are considered, the action level would be met, since those ingredients are present in the concentrations that are near the action level. There are no known synergistic actions of the examined mixtures, so Equation 3 is therefore applicable. Moreover, there is currently no reason to suspect that the trace amounts of the contaminants will react to create compounds that would be of concern. 10 Page 201 of 272 Technical Report July - August 2013 Conclusions By the standards of occupational hygiene, current data do not indicate that exposures to vapers from contaminants in electronic cigarettes warrant a concern. There are no known toxicological synergies among compounds in the aerosol, and mixture of the contaminants does not pose a risk to health. However, exposure of vapers to propylene glycol and glycerin reaches the levels at which, if one were considering the exposure in connection with a workplace setting, it would be prudent to scrutinize the health of exposed individuals and examine how exposures could be reduced. This is the basis for the recommendation to monitor levels and effects of prolonged exposure to propylene glycol and glycerin that comprise the bulk of emissions from electronic cigarettes other than nicotine and water vapor. From this perspective, and taking the analogy of work on theatrical fogs [45,46], it can be speculated that respiratory functions and symptoms (but not cancer of respiratory tract or non - malignant respiratory disease) of the vaper is of primary interest. Monitoring upper airway irritation of vapers and experiences of unpleasant smell would also provide early warning of exposure to compounds like acrolein because of known immediate effects of elevated exposures (http://www.atsdr.cdc.gov/toxprofiles/tpl24-c3.pdf accessed July 11, 2013). However, it is questionable how much concern should be associated with observed concentrations of acrolein and formaldehyde in the aerosol. Given highly variable assessments, closer scrutiny is probably warranted to understand sources of this variability, although there is no need at present to be alarmed about exceeding even the occupational exposure limits, since occurrence of occasional high values is accounted for in established TLVs. An important clue towards a productive direction for such work is the results reported In [39,40] that convincingly demonstrate how heating the liquid to high temperatures generates compounds like acrolein and formaldehyde in the aerosol. A better understanding about the sources of TSNA in the aerosol may be of some interest as well, but all results to date consistently indicate quantities that are of no more concern than TSNA in smokeless tobacco products. Exposures to nicotine from electronic cigarettes is not expected to exceed that from smoking due to self- titration[111; it is only a concern when a vaper does not intend to consume nicotine, a situation that can arise from incorrect labeling of liquids[24,43]. The cautions about propylene glycol and glycerin apply onlyto the exposure experienced by the vapers themselves. Exposure of bystanders to the listed ingredients, let alone the contaminants, does not warrant a concern as the exposure is likely to be orders of magnitude lower than exposure experienced by vapers. Further research employing realistic conditions could help quantify the quantity of exhaled aerosol and its behavior in the environment under realistic worst -case scenarios (i.e., not small sealed chambers), but this is not a priority since the exposure experienced by bystanders is clearly very low compared to the exposure of vapers, and thus there is no reason to expect it would have any health effects. The key to making the best possible effort to ensure that hazardous exposures from contaminants do not occur is ongoing monitoring of actual exposures and estimation of potential ones. Direct measurement of personal exposures is not possible in vaping due to the fact the aerosol is inhaled directly, unless, of course, suitable biomarkers of exposure can be developed. The current review did not identify any suitable biomarkers, though cotinine is a useful proxy for exposure to nicotine- containing liquids. Monitoring of potential composition of exposures is perhaps best achieved though analysis of aerosol generated in a manner that approximates vaping, for which better insights are needed on how to modify "smoking machines" to mimic vaping given that there are documented differences in inhalation patterns[51). These smoking machines would have to be operated under a realistic mode of operation of the atomizer to ensure that the process for generation of contaminants is studied under realistic temperatures. To estimate dosage (or exposure In personal breathing zone), information on the chemistry of aerosol has to be combined with models of the inhalation pattern of vapers, mode of operation of e- cigarettes and quantities of liquid consumed. Assessment of 11 Page 202 of 272 Technical Report July - August 2013 exhaled aerosol appears to be of little use in evaluating risk to vapers due to evidence of qualitative differences in the chemistry of exhaled and inhaled aerosol. Monitoring of liquid chemistry is easier and cheaper than assessment of aerosols. This can be done systematically as a routine quality control measure by the manufacturers to ensure uniform quality of all production batches. However, we do not know how this relates to aerosol chemistry because previous researchers have failed to appropriately pair analyses of chemistry of liquids and aerosols. It Is standard practice in occupational hygiene to analyze the chemistry of materials generating an exposure, and it is advisable that future studies of the aerosols explicitly pair these analyses with examination of composition of the liquids used to generate the aerosols. Such an approach can lead to the development of predictive models that relate the composition of the aerosol to the chemistry of liquids, the e- c[garette hardware, and the behavior of the vaper, as these, if accurate, can anticipate hazardous exposures before they occur. The current attempt to use available data to develop such relationships was not successful due to studies failing to collect appropriate data. Systematic monitoring of quality of the liquids would also help reassure consumers and is best done by independent laboratories rather than manufactures to remove concerns about impartiality (real or perceived). Future work in this area would greatly benefit from standardizing laboratory protocols (e.g. methods of extraction of compounds from aerosols and liquids, establishment of "core" compounds that have to be quantified in each analysis (as is done for PAH and metals), development of minimally informative detection limits that are needed for risk assessment, standardization of operation of "vaping machine ", etc.), quality control experiments (e.g. suitable positive and negative controls without comparison to conventional cigarettes, internal standards, estimation of %recovery, etc.), and reporting practices (e.g. in units that can be used to estimate personal exposure, use of uniform definitions of limits of detection and quantification, etc.), all of which would improve on the currently disjointed literature. Detailed recommendations on standardization of such protocols lie outside of scope of this report. All calculations conducted in this analysis are based on information about patterns of vaping and the content of aerosols and liquids that are highly uncertain in their applicability to "typical" vaping as it is currently practiced and says even less about future exposures due to vaping. However, this is similar to assessments that are routinely performed in occupational hygiene for novel technology as it relied on "worst case" calculations and safety margins that attempt to account for exposure variability. The approach adopted here and informed by some data is certainly superior to some currently accepted practices in the regulatory framework in occupational health that rely purely on description of emission processes to make claims about potential for exposure (e.g.[52]). Clearly, routine monitoring of potential and actual exposure is required if we were to apply the principles of occupational hygiene to vaping. Detailed suggestions on how to design such exposure surveillance are available in [53]. In summary, analysis of the current state of knowledge about the chemistry of contaminants in liquids and aerosols associated with electronic cigarettes indicates that there is no evidence that vaping produces inhalable exposures to these contaminants at a level that would prompt measures to reduce exposure by the standards that are used to ensure safety of workplaces. Indeed, there is sufficient evidence to be reassured that there are no such risks from the broad range of the studied products, though the lack of quality control standards means that this cannot be assured for all products on the market. However, aerosol generated during vaping on the whole, when considering the declared ingredients themselves, if it were treated in the same manner as an emission from industrial process, creates personal exposures that would justify surveillance of exposures and health among exposed persons. Due to the uncertainty about the effects of these quantities of propylene glycol and glycerin, this conclusion holds after setting aside concerns about health effects of nicotine. This conclusion holds notwithstanding the benefits of tobacco harm reduction, since 12 Page 203 of 272 Technical Report July - August 2013 there is value in understanding and possibly mitigating risks even when they are known to be far lower than smoking. I must be noted that the proposal for such scrutiny of "total aerosol' Is not based on specific health concerns suggested by compounds that resulted in exceedance of occupational exposure limits, but is instead a conservative posture in the face of unknown consequences of inhalation of appreciable quantities of organic compounds that may or may not be harmful at doses that occur during vaping. Key conclusions: • Even when compared to workplace standards for involuntary exposures, and using several conservative (erring on the side of caution) assumptions, the exposures from using e- cigarettes fall well below the threshold for concern for compounds with known toxicity. That is, even ignoring the benefits of e- cigarette use and the fact that the exposure is actively chosen, and even comparing to the levels that are considered unacceptable to people who are not benefiting from the exposure and do not want it, the exposures would not generate concern or call for remedial action. • Expressed concerns about nicotine only apply to vapers who do not wish to consume it; a voluntary (indeed, intentional) exposure is very different from a contaminant. • There is no serious concern about the contaminants such as volatile organic compounds (formaldehyde, acrolein, etc.) in the liquid or produced by heating. While these contaminants are present, they have been detected at problematic levels only in a few studies that apparently were based on unrealistic levels of heating. • The frequently stated concern about contamination of the liquid by a nontrivial quantity of ethylene glycol or diethylene glycol remains based on a single sample of an early technology product (and even this did not rise to the level of health concern) and has not been replicated. • Tobacco- specific nitrosamines (TSNA) are present in trace quantities and pose no more (likely much less) threat to health than TSNAs from modern smokeless tobacco products, which cause no measurable risk for cancer. • Contamination by metals is shown to be at similarly trivial levels that pose no health risk, and the alarmist claims about such contamination are based on unrealistic assumptions about the molecular form of these elements. • The existing literature tends to overestimate the exposures and exaggerate their implications. This is partially due to rhetoric, but also results from technical features. The most important is confusion of the concentration in aerosol, which on its own tells us little about risk to heath, with the relevant and much smaller total exposure to compounds in the aerosol averaged across all air inhaled in the course of a day. There is also clear bias in previous reports in favor of isolated instances of highest level of chemical detected across multiple studies, such that average exposure that can be calculated are higher than true value because they are "missing" all true zeros. Routine monitoring of liquid chemistry is easier and cheaperthan assessment of aerosols. Combined with an understanding of how the chemistry of the liquid affects the chemistry of the aerosol and insights into behavior of vapers, this can serve as a useful tool to ensure the safety of e- cigarettes. The only unintentional exposures (i.e., not the nicotine) that seem to rise to the level that they are worth further research are the carrier chemicals themselves, propylene glycol and glycerin. This exposure is not known to cause health problems, but the magnitude of the exposure is novel and thus is at the levels for concern based on the lack of reassuring data. 13 Page 204 of 272 Technical Report July - August 2013 Acknowledgements Funding for this work was provided by The Consumer Advocates for Smoke -free Alternatives Association ( CASAA) Research Fund. CASAA is an all- volunteer, donation - funded, non -profit organization devoted to defending consumer access to and promoting tobacco harm reduction; for more information, see htto: / /casaa.org /. CASAA exercised no editorial control over the author's writing or analysis: the author, not the funder, had full control of the content. The author is thankful to Dr Carl V Phillips, the CASAA scientific Director, for frank discussion of relevant scientific matters, as well as Drs. Uchiyama and Laugesen for access to presently unpublished data. Lastly, the contribution of Charity Curtis, Masters of Public Health student at Drexel University to the initial literature search was greatly appreciated. 14 Page 205 of 272 Technical Report July - August 2013 Figure: Illustrating the difference between concentrations in the aerosol generated by vaping and inhaled air in a day. Panel A shows black square that represents aerosol contaminated by some compound as it would be measured by a "smoking machine" and extrapolated to dosage from vaping in one day. This black square is located inside the white square that represents total uncontaminated air that is inhaled in a day by a vaper. The relative sizes of the two squares are exaggerated as the volume of aerosol generated in vaping relative to Inhaled air is much smaller in the figure. Panel 8 shows how exposure from contaminated air (black dots) is diluted over a day for appropriate comparison to occupational exposure limits that are expressed in terms of "time - weighted average" or average contamination over time rather than as instantaneous exposures (with the exception of "ceiling limits" that do not affect the vast majority of comparisons in this report). Exposure during vaping occurs in a dynamic process where the atmosphere inhaled by the vaper alternates between the smaller black and larger white squares in Panel A. Thus, the concentration of contaminants that a vaper is exposed to over a day is much smaller than that which is measured in the aerosol (and routinely improperly cited as reason for concern about "high" exposures). Q is Page 206 of 272 .a Technical Report July - August 2013 Table 1a: Exposure predictions based on analysis of aerosols generated by smoking machines: Volatile Organic Compounds Compound Estimated concentration in personal breathing zone Ratio of most stringent TLV ( %) Reference PPM mg/m Calculated directly Safety factor 10 Acetaldehyde 1 0.005 0.02 0.2 151 3 0.003 0.01 0.1 [4] 12 0.001 0.004 0.04 [8] 1 0.00004 0.0001 0.001 [3] 1 0.0002 0.001 0.008 [3] 150 0.001 0.004 0.04 [39,401 1 0.008 0.03 3 [37] Acetone 1 0.002 0.0003 0.003 [37] 150 0.0004 0.0001 0.001 [39,40] Acrolein 12 0.001 1 13 181 150 0.002 2 20 [39,40] 1 0.006 6 60 [37] Butanal 150 0.0002 0.001 0.01 [39,40] Crotonaldehyde 150 0.0004 0.01 0.1 [39,40] Formaldehyde 1 0.002 0.6 6 [5] 3 0.008 3 30 [4] 12 0.006 2 20 [81 1 <0.0003 <0.1 <1 [31 1 0.0003 0.1 1 [31 150 0.01 4 40 [39,401 1 0.009 3 30 [371 Cilyoxal 1 0.002 2 20 [37) 150 0.006 6 60 [39,40] o-MethylbertMdehyde 12 0.001 0.05 0.5 181 P,m- Xylene 12 0.00003 0.001 0.01 [8] Propanal 3 0.002 0.01 0.1 [4] 150 0.0006 0.002 0.02 [39,401 1 0.005 0.02 0.2 [37] Toluene 12 0.0001 0.003 0.03 [8] Valeraldehyde 150 0.0001 0.0001 0.001 # average is presented when N >1 16 Page 207 of 272 Technical Report July -August 2013 Table 1b: Exposure predictions based on analysis of aerosols generated by smoking machines: Inorganic Compounds" Element Assumed quantified Estimated Ratio of most stringent TLV (a /o) Reference compound containing concentration in the element for personal Safety factor comparison with TLV breathing zone Calculated m 3 directly 10 Aluminum Respirable AI metal & 1 0.002 0.2 insoluble corn ounds 1.5 [25] Barium Ba & insoluble compounds 1 0.00005 0.01 0.1 [25] Boron Boron oxide 1 0.02 0.1 1.5 [25] Cadmium Respirable Cd & 12 0.00002 1 corn ounds 10 [$] Chromium Insoluble (IV) I 3E -05 0.3 dCr 3 [25] Copper Cu fume 1 OA008 0.4 4.0 [251 trmt Soluble iron salts, as Fe 1 0.002 0.02 0.2 [251 Lead Inorganic compounds as Ph 1 7E-05 0.1 1 [251 12 0.000025 0.05 0.5 181 Magnesium Inhalablemagnesiumoxide 1 0.00026 0.003 0.03 Manganese Inorganic compounds, as I 8E -06 0.04 [25] Ma 0.4 [25] Nickel Inhalable soluble inorganic I 2E -05 0.02 0.2 compounds, as Ni [25] 12 0.00005 0.05 0.5 [g] Potassium KOH 1 0.001 0,1 1 Tin organic compounds, as So 1 0.0001 0.1 [25] Zinc Zinc chloride fume 1 0.0004 0.04 1 1 0.4 [25] [25] Zirconium Zr and compounds 1 3E -05 0.001 Sulfur SO: 1 0.002 0.3 3 [251 # The actual molecular form in the aerosol unknown and so worst case assumption was made if it was physically possible (e.g. it is not possible for elemental lithium & sodium to be present in the aerosol); there is no evidence 8-cm the research that suggests the metals were in the particular highest risk form, and in most cases a general knowledge of chemistry strongly suggests that this is unlikely. Thus, the TLV ratios reported here probably do not represent the (much lower) levels that would result if we knew, the molecular forms. ## average is presented when N >I 17 Page 208 of 272 Technical Report July - August 2013 Table 2: Exposure predictions for volatile organic compounds based on analysis of aerosols generated by volunteer vapers Compound N# Estimated concentration in personal breathing zone (ppm) Ratio of most stringent TLV ( %) Reference Calculated directly Safety factor 10 2- butanone (MEK) 3 0.04 0.02 0.2 [4] 1 0.002 0.0007 0.007 [6] 2- furaldehyde 3 0.01 0.7 7 [4] Acetaldehyde 3 0.07 0.3 3 [4] Acetic acid 3 0.3 3 30 [4] Acetone 3 0.4 0.2 2 [4] Acrolein 1 <0.001 <0.7 <7 [6] Benzene 3 0.02 3 33 [4] Butyl hydroxyl toluene 1 4E -05 0.0002 0.002 [6] isoprene 3 0.1 7 70 [4] Limonene 3 0.009 0.03 0.3 [4] 1 213-05 0.000001 0.00001 [6] m,p- Xyelen 3 0.01 0.01 0.1 [4] Phenol 3 0.01 0.3 3 [4] Propanal 3 0.004 0.01 0.1 [4] Toluene 3 0.01 0.07 0.7 [4] 4 average is presented when N %1 18 Page 209 of 272 Technical Report July - August 2013 Reference List 1. 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Ruyan (Yi E- cigarette bench -top tests. Society for Research on Nicotine and Tobacco, Dublin, April 30, 2009.2009. Ref Type: Abstract 27. Tytgat J. "Super Smoker" expert report. Edited by CATHOLIC UNIVERSITY L. 2007. Ref Type: Report 28. Valance C, Ellicott M. Analysis of chemical components from high, med & low nicotine cartridges; Report Number: D318. Edited by LPD Laboratory Services, Blackburn MicroTech Solutions Ltd. 2008, Ref Type: Reportwww.lpolabservices.co.uk 20 Page 211 of 272 Technical Report July - August 2013 29. Kubica P, Kot -Wasik A, Wasik A, Namiesnik 1: "Dilute & shoot' approach for rapid determination of trace amounts of nicotine in zero -level e- liquids by reversed phase liquid chromatography and hydrophilic interactions liquid chromatography coupled with tandem mass spectrometry- electrospray ionization. J ChromatogrA 2013,1289: 13 -18. 30. 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Eurofins Dr.Specht Laboratorien, Ref Type: Report http://clearstream flavourart it /site /wp- content /uploads/ DATI / vari /nitrosaminanalvse %20Virginia %2018 pdf 3S. Kim HJ, Shin HS: Determination of tobacco - specific nitrosamines in replacement liquids of electronic cigarettes by liquid chromatography- tandem mass spectrometry. J ChromatogrA 2013, 1291: 48 -55. 36. Hadwiger ME, Trehy ML, Ye W, Moore T, Allgire J, Westenberger B: Identification of amino- tadalafil and rlmonabant in electronic cigarette products using high pressure liquid chromatography with diode array and tandem mass spectrometric detection. J Chromatogr A 2010, 1217: 7547 -7555. 37. Uchiyama 5, Inaba Y, Kunugita N: Determination of acrolein and other carbonyls In cigarette smoke using coupled silica cartridges impregnated with hydroquinone and 2,4- dinitrophenylhydrazine. J ChromatogrA 2010, 1217: 4383 -4388. 38. Uchiyama S. Determination of acrolein and other carbonyls in cigarette smoke using coupled silica cartridges impregnated with hydroquinone and 2,4- dinitrophenylhydrazine. 2013. Ref Type: Personal Communication 39. Uchiyama S. <unpublished concentrations from experiments presented in https: / /www.istage.ist.go.io /article /bunsekikagaku /60/10/60 10 791/ odf; through personal co m m u n i cations >. 2013. Ref Type: Unpublished WorkUchiyama _E- cigarette_rm1851.PDF 40. Dhta K, Uchiyama 5, Inaba Y, Nakagome H, Kunugita N: Determination of Carbonyl Compounds Generated from the Electronic Cigarette Using Coupled Silica Cartridgeslmpregnated with Hydroquinone and 2,4- Dinitrophenylhydrazine. BUNSEKI KAGAKU 2011, 60: 791 -797. 41. e5moke. Analytical reports on batches of e- liquids. http://www.esmoke.netZpages.php?pageid=20 . 2009. 7 -11- 2013. 21 Page 212 of 272 Technical Report July - August 2013 Ref Type: Electronic Ci tationhttp:// www .esmoke.net /pages.phr)?pageid =20 42. Murphy J, Wong E, Lawton M. Chemical and operational assessment of the Ruyan classic e- cigarette. Report P.474.2 -8 -2010. British American Tobacco. Ref Type: Report 43. Trtchounian A, Talbot P: Electronic nicotine delivery systems: is there a need for regulation? Tob Control 2011, 20: 47 -52. 44. Etter 1F, Bullen C, Flouris AD, Laugesen M, Eissenberg T: Electronic nicotine delivery systems: a research agenda. Tob Control 2011, 20: 243 -248. 45. Varughese 5, Teschke K, Brauer M, Chow Y, van NC, Kennedy SM: Effects of theatrical smokes and fogs on respiratory health in the entertainment industry. Am J Ind Med 2005,47: 411 -418. 46. Teschke K, Chow Y, van NC, Varughese S, Kennedy SM, Brauer M: Exposures to atmospheric effects in the entertainment industry. J Occup Environ Hyg 2005, 2: 277 -284. 47. Hecht 55, Hoffmann D: Tobacco- specific nitrosamines, an important group of carcinogens in tobacco and tobacco smoke. Carcinogenesis 1988, 9: 875 -884. 48. Digard H, Errington G, Richter A, McAdam K: Patterns and behaviors of snus consumption in Sweden. Nicotine Tob Res 2009, 11: 1175 -1181. 49. Phillips CV, Sargent C, Rabiu D, Rodu B. Calculating the comparative mortality risk from smokeless tobacco vs. smoking. American Journal of Epidemiology, 163 (11):5189, 2006. American Journal of Epidemiology 163[11], 5189. 2006. Ref Type: Abstract 50. Liedel NA, Busch KA, Crouse WE. Exposure measurement action level and occupational environmental variability. HEW Publication No. (NIOSH) 76 -131. 1975. Cincinnati, OH, US Departement of Health, Education, and Welfare, Public Health Service, Center for Disease Control, National Institute for Occupational Safety and Health, Division of Laboatories and Criteria Development, Ref Type: Reportht_tp: / /www,cdc.gov /niosh /dots /76- 131 /Pdfs /76- 131.pdf 51. Trtchounian A, Williams M, Talbot P: Conventional and electronic cigarettes (e- cigarettes) have different smoking characteristics. Nicotine Tob Res 2010, 12: 905 -912. 52, Tischer M, Bredendiek - Kamper 5, Poppek U, Packroff R: How safe is control banding? Integrated evaluation by comparing OELs with measurement data and using monte carlo simulation. Ann Occup Hyg 2009, 53: 449 -462. 53. British Occupational Hygiene Society, Nederlandse Vereniging voor Arbeidshygii=ne. Testing compliance with occupational exposure limits for airborne substances. 2011. Ref Type: Report 22 Page 213 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 214 of 272 V C z z 0 0 a i w O O z w Page 215 of 272 Z 0 � O � n ¢ W N W W J a a z z z O U < W ¢ O z w w � U N ¢ O O a a > z 0 a U LL F J U D 0 w O U o O U) W z N w W w W w N LL U _ F x? O O � O Q O O .. LL r O 0 z W � H O w F Lu J 22 D O p Cl) � O a OU LU LLI > a V C z z 0 0 a i w O O z w Page 215 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 216 of 272 J > O Of a a a J U z O U 0 w W z 2 U 2 � � o O N O O o N H N r � w W Q O LL O W Z UJ Z Q F 0 W LIJ w N J 2 U � O a. U 0 0 z W O N CO M ci o M c0 M M O m �-- N H Z W (D 2 W a J D CL O Q- w c� r z F w a z a� _ w U a a o a- 0 LL LL x � LL U) w z ~ O w W w � a 0 O O Z U N CO) W W O U w ¢5 � J � a � } 4] N V7 J U O J Z n O Q U U O w r a a w a O ni O a J F 0 H a Z O p LL U N W LL O W CO 0 w O lk� o U Z Z � Page 217 of 272 w M Q O O r O O O O N O U J az U >Q n- 0 U) a w w C) U Z O U J a CL a Z W Y O Z Q a a H U) x O z r C5 O O O m N m n N N O U U` =z zO F- 00 U rn ZN Z O Q x O a' w x w a H U K U Z O E wQ <> F Z Z Z J a' F- N Z V x F- a O z O a [PAGE LEFT BLANK INTENTIONALLY] Page 218 of 272 August 11, 2014 Kenai "V'llaye with a Past, C# with a Future' 1111 11 1 2011 To: Rick Koch, City Manager Reference: Exemption from Formal Bid — Lucas Chest Compression Systems Rick, The Fire Department is requesting exemption from formal bid for the purchase of 2 Lucas Chest Compression Systems. Currently there are two main manufactures of chest compressions systems; Physio Control makers of the Lucas Chest Compression System and Zoll makers of the AutoPulse Non - Invasive Cardiac Support Pump. The department is recommending the purchase of the Lucas System for the following reasons. • An extensive medical literature review was conducted that included articles such as the Journal of the American Medical Association (JAMA) that showed the effectiveness of the Lucas Chest Compression System on improved neurological outcomes after sudden cardiac arrest. • An extensive test was conducted by the Anchorage Fire Department on these two systems and at the conclusion of the testing AFD choose to place the Lucas Chest Compression System in service with their department. In speaking with representatives from their department they are pleased with the systems and the medical outcomes they have produced. • Continuity of patient care between Kenai Fire Department and the Emergency Staff at Central Peninsula Hospital. Currently CPH is in the process of purchasing Lucas Chest Compression Systems for use in the ER. The ability for the same Physio Control service personnel who maintain the departments current LifePak 12 Monitor /Defibrillators to maintain the Lucas Systems. Currently Physio Control provides onsite inspections and maintenance of our department's two LifePak's. They are the only manufacture who does. Page 219 of 272 • The ability for the Physic Control manufactured Lucas Chest Compression System to interface with the Physic Control manufactured Lifepak 15 Monitor /Defibrillator (slated to be purchased with our new ambulance) through their Code -Stat Data Review Software package. This allows review of the code summary including chest compressions for QA/QI purposes. • Physic Control is the sole source provider for the Lucas Chest Compression System in Alaska. A letter from the manufacture is attached. Please let me know if you need any further information. Thank you, Jeff Tucker, Fire Chief City of Kenai Fire Department jtucker@ci.kenai.ak us 907 - 283- 7666(Office) Page 220 of 272 y Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2790 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, WAIVING CERTAIN LEASE PROVISIONS IMPOSED BY KENAI MUNICIPAL CODE CHAPTER 21.10- LEASING OF AIRPORT RESERVE LANDS, AND APPROVING A NON - STANDARD OF LEASE FOR THE LEASE OF LOT 2, BLOCK 1, GENERAL A LOCH ED WITHIN THE AIRPORT RESERVE, TO LEGACY ELECTRIC- VIATION APRON, General WHEREAS, on July 28, property) Legacy the puse of lease Lot x nested T- Aviation Apron (the property) proposed Hangar complex; and, WHEREAS, Kenai Municipal Code Chapter 21.10 - Leasing of Airport Reserve Lands, governs the lease of airport reserve lands and imposes certain mandatory lease terms; and, lands without d `hating from the current secure urrent code scheme and lease reserve form; and, WHEREAS, A Geotechnical Investigation Report prepared in 2008 by Wince- Corthell- Bryson indicates soil conditions on the property require removal of waste material previously buried on the site; and, WHEREAS, Legacy Electric proposes to remove up to eight feet of silt and other waste material at its cost and prepare the lot for construction; and, WHEREAS, it is in the best interest of the Kenai Municipal Airport to promote development through the application of lease incentives that recent experience has shown require deviation from lease terms imposed by KMC Chapter 21.10 and standard lease form; and, WHEREAS, Legacy Electric desires the contractual rightarm andas twenty (20) year) years consisting of an initial thirty-five (35) year lease renewal at its sole option in order to adequately re -coup its investment in the property, which is initially estimated at $500,000; and, WHEREAS, pursuant to KMC 21.10.090, initial lease terms and renewals are based oa the amount of investment of permanent improvements on the property maximum initial term of 35 years; and, WHEREAS, KMC 21.20.080 allows for council to approve a contractual right for a lease renewal under terms and conditions in the City's best interest; and, New Text Underhmd) (DELETED TEXT BRACKETED) Page 221 of 272 Ordinance No. * -2014 Page 2 of 2 WHEREAS, the Council of the City of Kenai finds that in this instance waiving the provisions of KMC 21.10.090 is in the best interests of the City of Kenai; and, WHEREAS, pursuant to KMC 21.10.150(b), the City Manager may deviate from the standard lease form adopted under Code, if the Manager believes the action is in the best interest of the City and the form is approved by the City Attorney; and, WHEREAS, the City Manager believes it is in the best interest of the City to deviate from the current lease form to allow for reasonable costs for work performed by Legacy Electric or its contractors for clearing and grubbing, unclassified excavation, classified fill and utility service extensions to be applied as lease credits to the lease for a maximum period of five years; and, WHEREAS, the City Manager further believes it is in the best interest of the City to deviate from the current lease form to provide that the lessee may remove, sell or have the City sell any permanent improvements on the property left after the expiration of the lease term consistent with State of Alaska rural airport leasing procedures; and, WHEREAS, the City attorney has approved the new lease form. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA,: Section 1. Waiver of Ordinance Requirements: That the Council of the City of Kenai waives the lease provisions of the Kenai Municipal Code as it applies to the lease of Lot 2, Block 1, General Aviation Apron, located within the Airport Reserve, to Legacy Electric for the use of T- Hangars: KMC 21.10.090 with respect to length of lease term. Section 2. Determination of Lease Term: That the Council of the City of Kenai determines that a thirty -five (35) year lease term and the contractual right for a twenty (20) year lease renewal for Lot 2, Block 1, General Aviation Apron, located within the Airport Reserve, to the FAA for the use of to Legacy Electric for the use of T- Hangars is in the best interests of the City. Section 3. Approval of Lease Form: That the Council of the City of Kenai approves the Lease form for Lot 2, Block 1, General Aviation Apron, located within the Airport Reserve, to Legacy Electric for the use of T- Hangars. Section 4. Severability: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. New Text Underlined; (DELETED TEXT Page 222 of 272 Ordinance No. * -2014 Page 2 of 2 Section 4. Effective Date: That pursuant to KMC 1.15.070(0, this ordinance shall take effect 30 days after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA this _ day of September , 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: August 20, 2014 Adopted: September 3, 2014 Effective: Nev Text Underlined; ]DELETED TEXT BRACKETED] Page 223 of 272 "'Villaye with a Past, Gc�y witk a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 <1 _A > Telephone: (907) 283 -7535 / FAX: (907) 283 -3014 www.d.kenai.ak.us the city v Ke m. KENAI,ALASKA k v mama C" t�Illl :011 MEMO. TO: Kenai City Council FROM: Rick Koch, City Manager DATE: August 14, 2013 SUBJECT: Ordinance No. 2790 -2014 — Lease of Airport Reserve Property Lot 2, Block 1, GAA The City received the attached lease application from Derek Leichliter, owner of Legacy Electric, for the referenced Airport property located inside the Airport Reserve. Mr. Leichliter wishes to lease the property for a term of 55 years and proposes to construct two T- hangars on the premises. Prior to development, the removal of existing silt and organic waste material will be required, and this requirement is included in the estimated total cost of proposed development. Mr. Leichliter has submitted the applicable filing fee and is in compliance with the City and Borough. Initial review of the application resulted in a joint recommendation for approval of the application and referral for further review and comment to the Airport Commission at its August 14 meeting and the Planning and Zoning Commission at its August 27 meeting. The Airport Commission held a Work Session on July 10 to discuss Airport Leasing Requirements. The Commission recognized that it was in the best interest of the Kenai Municipal Airport to promote development through the application of lease incentives as well as to address current requirements which have not been met by lease applicants and required deviation from the City's Code. A proposed Lease between the City and Legacy Electric will be negotiated, reviewed by the City Attorney, and submitted at the Public Hearing on the referenced Ordinance at the September 3 Council Meeting. cc: Derek Leichliter, Legacy Electric Attachments Page 224 of 272 AMENDED 8/7/14: ITEM 13b. CITY OF KENAI 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 (907) 283 -7535 Ext. 223 LEASE APPLICATION For Land Inside the Kenai Municipal Airport Reserve 1. Name of Applicant r LEI Le- a 1 r t i--e, r 2. Business Name 3. Business Type (circle one) sole Rmi2jetor vann er Mailing Address FOR CITY USE ONLY Date $-�' Signature r-6� 4. AK Business License No.q b N ii �D 0 6. Telephone Z 5.1 - y_:39 / 7. Email Address I fgQG u C /ec -pi c CLK s) gno4 8. Kenai Peninsula Borough Sales Tax No. (if applicable) O b / 2 (a 9. Land Requested: If platted, give legal description GA3 - �� If not platted, attach a site plan showing the proposed dimensions and location on the Airport. 10. Proposed Use of the Property (Be specific) T - l% e l^ L'OfidO A SSO",a 11. Lease Term Desired 55 years 12. if you plan to base or service aircraft on the property, give a. Make, type, & wingspan of the largest aircraft _ b. Total number of aircraft you expect to be based or serviced on the property at one time i y 13. If you plan to construct improvements or otherwise develop the property: a. Attach a Development Plan (see attached checklist) 2 6 -FLEX UNIT b. Describe the building type, construction materials, size, etc. ne 4 d v c. Construction beginning date SPi 2 Qlq d. Construction completion date (maximum of two years) Fe, b, l . 2 c5/ cCJm e. Estimated total cost of the proposed development & improvements $ DDS 14. If you plan to operate a business on the property, attach a business plan (See application instructions). 15. If you would like the City to consider dditional information relating to your proposal, please put it in writing and submit it with this application. APPLICANT'S SIGNATURE: I Date: u/ 2/ 201j( Printed name: D r- r e- k L e i c h l G I' Title: APPLICANT'S SIGNATURE: Printed name: Page 225 of 272 Title: Date: _ >�1� KENAI AIRPORT TA)Q WAY a N_ T-B J 1 1 w k� Jl -____i ___Jlr ___i __� 7r 1 r ♦ a , , �— iy ° 6 y 3F CC y� r , r , i s - r/li ---- - - - - -- ------ - - - - -- A 7 KENAIAIRPORTTAXI WAY no *•�.g - i � KENAI T- HANGER PROJECT SCHEMATIC DESIGN KENRIaW@k@W of 272 designstudios >�1� a z+ �aE fry ^i KENAI T- HANGER PROJECT SCHEMATIC DESIGN KENRIaW@k@W of 272 designstudios O ti • 77S 0 loo q� 72S D cn 4 A a, f m y O O • 707 a j>>� o Q o o N � S opp� m, m y d.9 9 p H N (D n ra' W J// , 3 CD c v o z 0 O C7 CD 0 Page T4 r I" Y D Z >/ 0 VN n O v� a� 711 [PAGE LEFT BLANK INTENTIONALLY] Page 228 of 272 Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2791 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, DECLARING THAT T 5N R 11W SEC 5 SEWARD MERIDIAN KN 0003025 EAST ADDN TOWNSITE OF KENAI - US SURVEY 3025 A 86 B LOTS 12, 13, 14, 15 AND 16, BLOCK 3, KENAI, ALASKA, ALSO KNOWN AS 600, 602, 604, 606 AND 608 PENINSULA AVENUE, KENAI, ALASKA, WHOSE LAST RECORD OWNER UNDER BOROUGH ASSESSMENT RECORDS WAS THE FIRST BAPTIST CHURCH, 5432 E. NORTHERN LIGHTS BOULEVARD, #416, ANCHORAGE, ALASKA, SHALL BE RETAINED BY THE CITY OF KENAI FOR A PUBLIC PURPOSE. WHEREAS, the City has identified five (5) parcels of property foreclosed upon by the Kenai Peninsula Borough for unpaid real property taxes that will serve a public purpose to the City; and, WHEREAS, the five parcels are Lots 12 through 16, Block 3, East Addition, Townsite of Kenai, also known as 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska; and, WHEREAS, on the City paid the outstanding balance for property taxes in the amount of $ of which $ relates to Kenai Peninsula Borough taxes and interest and the remaining $ relates to City of Kenai taxes and interest; and, WHEREAS, on the Borough conveyed Lots 12 through 16, Block 3, East Addition, Townsite of Kenai to the City by quitclaim deeds dated; and, WHEREAS, the City of Kenai desires to retain the above - referenced tax- foreclosed property for public purposes, including as a staging area to support of bluff erosion control measures and, later, for parks and recreational purposes; and, WHEREAS, AS 29.45.460 requires that the City determine by ordinance whether a tax- foreclosed property shall be retained for a public purpose and shall provide the former record owner, by certified mail, notice of the public hearing on that ordinance; and, WHEREAS, the last record owner of the property as the name appears on the Kenai Peninsula Borough's assessment roll is the First Baptist Church, 5432 E. Northern Lights Boulevard, #416, Anchorage, Alaska. WHEREAS, on the Clerk sent a copy of the publicized notice of the hearing on this ordinance to the last record even of the property as the name appears on the Borough assessment rolls by certified mail; and, New Text Underlined; [DELETED TEXT Page 229 of 272 Ordinance No. 2791 -2014 Page 2 of 2 WHEREAS, after passage of an ordinance declaring the City's retention of tax - foreclosed property for a public purpose, the right of the former record owner to repurchase the property ceases. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. Form: That this is a non -code ordinance. Section 2. That T SN R I IW SEC 5 SEWARD MERIDIAN KN 0003025 EAST ADDN TOWNSITE OF KENAI — US SURVEY 3025 A & B LOTS 12, 13, 14, 15 and 16, BLOCK 3, Kenai, Alaska, also known AS 600, 602, 604, 606 and 608 Peninsula Avenue, Kenai, Alaska, whose last record owner as listed in the Kenai Peninsula Borough's assessment rolls was the First Baptist Church, 5432 E. Northern Lights Boulevard, #416, Anchorage, Alaska, are hereby retained by the City of Kenai for a public purpose. Section 3. Severabilitv: That if any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: That pursuant to KMC 1.15.070(1), this ordinance shall take effect 30 days after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this * day of *, 2014. ATTEST: Sandra Modigh, City Clerk PAT PORTER, MAYOR Introduced: *, 2014 Adopted: *, 2014 Effective: *, 2014 New Text Underlined; [DELETED TEXT BRACKETED] Page 230 of 272 "Village with a Past, C# with a F"t"re" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -75351 FAX: (907) 283 -3014 www.d.kenai.ak.us MEMO: TO: Kenai City Council FROM: Rick Koch, City Manager DATE: August 14, 2014 SUBJECT: Ordinance 2791 -2014 Lots 12 through 16, Block 3, East Addition, Townsite of Kenai Kenai urnaa.un t IIII'I 2011 The City has identified the referenced parcels as properties the City wishes to retain for the public purpose of a staging area to support bluff erosion control measures and, later, for parks and recreational purposes. The Kenai City Council previously adopted Ordinance 2441 -2009, which declared these same parcels be retained for the same a public purpose after obtaining clerks deed from the Borough, at its October 7, 2009 Council Meeting. However, the last record owner of the property repurchased the property pursuant to AS 29.45.460. The policies and procedures of the Kenai Peninsula Borough require that when unredeemed property is retained for a public purpose, the city must pay the full balance of outstanding property taxes. Once the payment is received, the borough will then quitclaim deed the property over to the City. Once an ordinance is adopted providing for the retention of tax - foreclosed property for a public purpose, the right of the former record owner to repurchase the property ceases. Page 231 of 272 Lots 12 -16, , ock 3 East Addition, - )wnsite of Kenai 8 (2) U) 9 10 11 12 13 14 15 16 O 602 600 J MARINE AVE 1 = Subject 613 6 65 47 3 605 2 �- Parcels 7 O :D C/'� ''11 LO 0 11 / n � 9 10 11 2 13 14 15 16 V� J m m o 612 608 606 604 602 600 PENINSULAAVE 60r284@754 605 603 601 513 5 2 1 1-A DEED 231 @604 REMAINDE GOVT. LC Page 232 of 272 Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2792 -2014 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, ACCEPTING AND APPROPRIATING A GRANT FROM STATE OF ALASKA DIVISION OF HEALTH AND SOCIAL SERVICES EMS DIVISION PASSSED THROUGH KENAI PENINSULA EMERGENCY MEDICAL SERVICES, INC. FOR TRAVEL AND TRAINING. WHEREAS, the Kenai Fire Department has received a grant in the amount of $1,750.00 from KPEMS for training funds used to send department personnel to an EMT Instructor course held in Anchorage, Alaska in May 2014; and. WHEREAS, it is in the best interest of the City of Kenai to accept and appropriate funds that provided training of Fire Department personnel to the level of Instructor; and, WHEREAS, personnel trained to the instructor level will allow the department to provide training to other department personnel using an in -house instructor and greatly reducing training costs. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that estimated revenues and appropriations be increased as follows: Section 1. Form. That this is a non -code ordinance. Section 2. That the City Manager is authorized to accept a grant from State of Alaska Health and Social Services EMS Division passed through Kenai Peninsula Emergency Medical Services, Inc. in the amount of $1,750 for training and is authorized to execute a grant agreement and to expend the grant funds to fulfill the purpose and intent of this ordinance. Section 3. That estimated revenues and appropriations be increased as follows: General Fund Increase Estimated Revenues: State Grants - Fire $1,750 Increase Appropriations: Fire - Travel & Transportation $1,750 New Text Underlined; JDELETED TEXT BRACKETED) Page 233 of 272 Ordinance No. 2792 -2014 Page 2 of 2 PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 3rd day of September, 2014, ATTEST: Sandra Modigh, City Clerk Approved by Finance: —]L/� PAT PORTER, MAYOR Introduced: August 20, 2014 Adopted: September 3, 2014 Effective: September 3, 2014 New Text Underlined; [DELETED TEXT BRACKETED] Page 234 of 272 IlVillaye with a Past, C# with aFuture 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 ted Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 1 1111l 1992 MEMO: 1O: CM Rick Koch FROM: Battalion Chief Prior DATE: 8/13/14 SUBJECT: Funds from KPEMS for instructor course Rick, Every year Kenai Peninsula Emergency Medical Services, Inc receives funding for training to be split amongst departments on the peninsula for various medical training. As our department is in good standings with KPEMS, we are allowed to request funds for training of our staff personnel. At the end of their fiscal year 2014 (June 30th) they had training funds that had not been spent and were still available to us. We submitted a request to fund the training and travel expenses for Pete Coots to attend an EMS MOI Instructor course that was attended by Pete in May 2014. This specific course was not originally budgeted, but due to the availability of the course and the potential to save both time and money, we had Pete attend this course. We will now have and in -house instructor that will be able to conduct mandatory state required EMS training to our EMT level personnel. Pete Coots has recently finished his Paramedic program and is energetic and eager to pass along his knowledge to our staff. We have relied on outside agencies to conduct this training in the past and we'll be able to save both time and money by having an in -house instructor. I am respectfully requesting that we accept the funds in the total amount of $1,750.00 from KPEMS for Pete Coots training to the level of EMT Instructor. Sincerely, Anthony Prior Battalion Chief Kenai Fire Department Page 235 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 236 of 272 M "V lla9e With a Past, C# with a Mature" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: (907) 283 -75351 FAX: (907) 283 -3014 www dkenai.ak.us MEMO* 111 TO: Rick Koch, City Manager f' FROM: Christine Cunningham, Assistant to City Manager DATE: August 8, 2014 Komi lx111r! OA .N, I I I I 1 1 2011 SUBJECT: Consent to Sublease between Peninsula Art Guild, Inc. and the Kenai Potters Guild for a portion of Lot 3, Block 17, Original Townsite of Kenai and the building known as the Fine Arts Center The Peninsula Art Guild has leased the referenced property and building known as the Fine Arts Center since 1975 for the purpose of providing a "building to house the Fine Arts Center for the benefit of the local community." Pottery workshops and the pottery room have been included on the list of activities taking place at the Center since 1979, and the Kenai Potters Guild has historically used a portion of the Fine Arts Center. The original lease was entered into in 1975 for a one -year term and was renewed on a year -to -year or biannual basis. The current lease was entered into in 1995 and has been extended until 2020. The Peninsula Arts Guild has negotiated a sublease with the Kenai Potters Guild in the attached Sublease Agreement. Both parties are in compliance with both the City and the Borough and the City Attorney has reviewed the attached document as to form. If Council approves the attached Consent to Sublease, it may be executed by the City Manager and provided to the parties. cc: Peninsula Art Guild, Inc. Kenai Potters Guild Attachments Page 237 of 272 CITY OF KENAI CONSENT TO SUBLEASE The Sublease Agreement, dated for a portion of the premises under the Original Lease recorded at Book 464, Pages 768 —'776 on June 13, 1995, in the Kenai Recording District, Third Judicial District, State of Alaska between PENINSULA ART GUILD, INC. (Lessee) whose address is P.O. Box 703, Kenai, Alaska, 99611 and KENAI POTTERS GUILD (Sublessee) whose address is P.O. Box 1387, Kenai, AK 99611, covering the following- described property: A portion of Lot 3, Block 17, Original Townsite of Kenai and the building known as the Fine Arts Center Is hereby ACKNOWLEDGED AND CONSENTED TO, subject to the same terms and conditions as contained in the original lease described above. This Consent is given by the City of Kenai without waiving any right or action, or releasing the Lessee from any liability or responsibility under the aforementioned Lease, and does not relieve the Lessee from the condition requiring the City's approval for any subsequent sublease or assignment. Dated this day of Approved as to form: CITY OF KENAI Scott Bloom, City Attorney 2014. Rick R. Koch City Manager Consent to Sublease — Peninsula Art Guild, Inc. Page 1 of 2 Page 238 of 272 STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of 2014, RICK R. KOCH, City Manager of the City of Kenai, Alaska, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument on behalf of said City. Notary Public for Alaska My Commission Expires: AFTER RECORDING, RETURN TO: CITY OF KENAI 210Fidalgo Avenue Kenai, AK 99611 -7794 Consent to Sublease — Peninsula Art Guild, Inc. Page 2 of 2 Page 239 of 272 RECEIVED JUL 3 1 2014 SUBLEASE AGREEMENT KENAI LEGAL DEPT THIS SUBLEASE AGREEMENT ( "Agreement') is entered into effective July 25, 2014, by the PENINSULA ART GUILD ( "Landlord ") and the KENAI POTTERS GUILD ( "Tenant "). WHEREAS, the Peninsula Art Guild leases the Kenai Fine Arts Center building and grounds from the City of Kenai; and WHEREAS, the Kenai Potters Guild has used the Potters Studio space in the Kenai Fine Arts Center prior to this Agreement; and WHEREAS, the parties wish to have a written sublease agreement to memorialize the terms and conditions of a sublease of the Potters Studio; NOW THEREFORE, the parties agree to the following terms and conditions: 1. PREMISES. Landlord is subleasing to Tenant and Tenant is subleasing from Landlord the Potters Studio and the use of the restroom facilities, in the Kenai Fine Arts Center ("KFAC "), located at 816 Cook Avenue ( "premises "). The Potters Studio is designated in the floor plan of the Kenai Fine Arts Center building attached to this Agreement as Exhibit A. 2. TERM. The premises are leased for the following period: July 25, 2014 to September X 2015. The parties agree to meet and confer between May 1, 2015 and June 15, to discuss a possible renewal of the sublease. 3. RENT: Tenant agrees to pay rent in the amount of $125.00 per month for the term of this Agreement, except for August 2014, when monthly rent is $150.00. Rent is due the first day of each month, and shall be direct deposited to Landlord's bank account. 4. SECURITY DEPOSIT. A security deposit of $300 is required. The deposit shall be refunded within 14 days after the Tenant moves out of the premises, unless the Landlord has to make repairs to the premises after Tenant moves out; in which case the cost of such repairs shall be deducted from the deposit and the remainder sent to Tenant promptly after such repairs are made 5. UTILITIES. Tenant has its own gas meter and agrees to pay for its own gas use an the premises. Tenant agrees to pay a portion of the electricity in the Kenai Fine Arts Center, reflecting its use of electricity. The parties have worked out a formula for sharing electric cost, a copy of which is attached to this Agreement. Tenant may review copies of Landlord's HEA bills, upon request. Landlord shall provide snow plowing and sanding to the KFAC building. 6. USE AND OCCUPANCY. a. Tenant may use the Potters Studio for pottery making, giving classes on pottery making, and uses related to these purposes; and for no other use; subject to restrictions contained in the House Rules, attached as Exhibit B. Tenant's active members, their assistants or employees, class participants and PAG officials on official business are allowed in the Potters Studio. Tenant shall provide an updated list of its active members, quarterly, to Landlord. Page 240 of 272 b. Members of the general public are only allowed in the Potters Studio: (a) under the supervision of an active KPG member, (b) during Exhibit Gallery open hours, (c) during Mother's Day and Christmas sales (held the Saturday before the holiday). C. Tenant shall store personal property in the Potters Studio or off site (not in the KFAC building). Tenant shall remove all items from the Potters Storage space shown on Exhibit A by no later than August 31, 2014. 7. SUBLETTING AND ASSIGNMENT. Tenant agrees not to further sublet or assign its rights to sublease or use any portion of the premises, without the written consent of Landlord. 8. CONSENT BY CITY OF KENAI. This sublease is conditional upon the consent of the City of Kenai to the sublease. Landlord shall take the lead in obtaining consent to this Agreement from the City of Kenai. Tenant shall cooperate with Landlord in this process. 9. MAINTENANCE AND REPAIRS. a. Landlord will maintain and make all necessary repairs to: (1) the roof, structural components, exterior of the KFAC building, exterior walls of the KFAC building, interior walls of the KFAC building (except interior walls of the Potters Studio), and fire door, and (2) the plumbing, electrical, heating, ventilating, and air - conditioning systems. b. Tenant will keep clean, maintain and repair the interior walls and interior of the Potters Studio. 10. INSURANCE AND INDEMNIFICATION. a. Tenant will provide liability insurance to cover Tenant's activities at the KFAC and grounds, in an amount and form approved by Landlord. These insurance policies will include Landlord and the City of Kenai as additional insured parties. b. Tenant will carry worker's compensation insurance if Tenant has employees or if otherwise required by Alaska law. C. Tenant will give Landlord a copy of all insurance policies that this sublease requires Tenant to obtain. d. Tenant, Tenant's members, employees, guests, invitees and their personal property, and Tenant's activities, will not be covered by any insurance policy of Landlord. e. Tenant further agrees to indemnify, hold the Landlord harmless and defend Landlord from any damage to the Potters Studio and to any personal property kept in the Potters Studio, and for any property damage or personal injury to any person entering the Potters Studio during the term of this sublease, except for Landlord and persons entering the Potters Studio at Landlord's direction or invitation. Landlord indemnifies, holds Tenant harmless, and agrees to defend Tenant for any property damage or personal injury to Landlord or persons coming to the rest of the Kenai Fine Arts Center building and grounds. 2 - SUBLEASE AGREEMENT Page 241 of 272 11. TAXES. Tenant is liable for and will pay all real property taxes which may be levied and assessed against the premises, and sales taxes which may apply, if any. Tenant will pay all personal property taxes levied and assessed against Tenant's personal property, and all sales taxes due on Tenant's sales on the premises. 12. ALTERATIONS AND IMPROVEMENTS. Tenant accepts the premises in its present condition. Tenant shall not paint or make any alterations or improvements to the Premises without written consent of the Landlord. After the lease terminates, all Tenant's alterations and improvements shall become part of the premises, unless the parties agree otherwise. If Tenant wants to remove its improvements or other items installed in the Potters Studio, there will have to be plan for removal agreed to by both parties. 13. DAMAGE TO PREMISES. If the premises are damaged through fire or other cause not the fault of Tenant, Tenant will owe no rent for any period during which Tenant is substantially deprived of the use of the premises. If Tenant damages the premises during the tern of the sublease, then Landlord may require Tenant to promptly pay or reimburse the cost to repair the damage. 14. LEASE TERMINATION. This lease terminates at the end of the term described in Section 4, above, unless earlier renewed in writing by the parties. Tenant may terminate this lease by giving written notice at least 30 days before the next rental due date (60 days total). The Tenant may not hold over past the termination date given in Tenant's notice unless the entire month's rent is paid in advance and holding over is approved in writing by Landlord. Landlord may terminate this sublease at any time for Tenant's material violation of the terms and conditions of this Agreement. 15. NOTICE OF DEFAULT. Before starting a legal action to recover possession of the premises based on Tenant's default in a term or condition of this lease, Landlord will notify Tenant in writing of the default. Landlord will take legal action only if Tenant does not correct the default within 10 days after written notice is personally delivered or mailed to Tenant. 16. TENANT'S RESPONSIBILITIES. Tenant agrees: a. In the KFAC building: • To properly dispose of all garbage and organic or flammable waste; • To properly use the gas, electrical, heating, ventilation and plumbing systems (Tenant is responsible to pay for repairs or replacement caused by misuse of these systems); • Not to destroy, deface or damage the premises; • Not to permit nuisance on or waste of the premises: • To correct immediately all violations noted by the Kenai Fire Marshal or other inspections of the Potters Studio by the City of Kenai or other applicable government agency; b. Not to violate any municipal, State or Federal law applicable to Tenant's use and occupation of the premises; 3 - SUBLEASE AGREEMENT Page 242 of 272 C. To comply with the House Rules, a copy of which is attached to this Agreement. d. To comply with all terms and conditions of the lease between Landlord and the City of Kenai, to the extent such terms and conditions apply to Tenant's use of the premises; and to do nothing that would jeopardize the lease. 17. ACCESS. Tenant shall allow Landlord (or its agents as identified to Tenant) to access the premises during normal business hours for purposes of inspection, to show said premises to the City of Kenai or other government agency staff, or for contractors or workers to perform maintenance and repairs. Tenant agrees to comply with any building entry system established by Landlord. 18. REMOVAL OF PROPERTY. Tenant agrees that in the event that Tenant abandons the premises, the Landlord may immediately enter the premises and take possession of any property of the Tenant's and dispose of such property at Landlord's discretion. 19. QUIET ENJOYMENT. As long as Tenant is not in default under the terms of this lease, Tenant will have the right to occupy the premises peacefully and without interference. 20. NOTICES. All notices must be in writing. A notice may be delivered to a party at the address that follows a party's signature below or to a new address that a party designates in writing. A notice may be delivered: (1) in person,(2) by certified mail, or (3) by courier. 21. GOVERNING LAW. This lease will be governed by and construed in accordance with the laws of the State of Alaska. This lease is not governed by the Alaska Landlord Tenant Act, unless stated otherwise herein. 22. WAIVER. If either party waives any term or provision of this lease at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this lease, that party retains the right to enforce that term or provision at a later time. 23. MODIFICATION. This lease may be modified by the parties, but only by a writing signed and dated by both parties. 24. DISPUTE RESOLUTION. If a dispute arises, the parties will try in good faith to settle it through negotiation or mediation. If these methods do not resolve the dispute, either party may file take the matter in dispute to court in the Kenai Venue District, Third Judicial District, State of Alaska. The prevailing party in any such lawsuit shall be entitled to reasonable attorney fees and costs. 25. ENTIRE AGREEMENT. This is the entire agreement between the parties. It replaces and supersedes any and all oral agreements between the parties, as well as any prior writings. 4 - SUBLEASE AGREEMENT Page 243 of 272 PENINSULA ART GUILD 816 Cook Avenue Kenai, Alaska 99611 B : Benjamm Jackinsky TITLE: President DATE: O % '30 ' I y 5 - SUBLEASE AGREEMENT KENAI POTTERS GUILD 816 Cook Avenue Kenai, Alaska 99611 /�ye,'0 ;�� BY: Laura Faeo TITLE: President DATE: 491- 30 - c�P/q Page 244 of 272 House Rules Peninsula Art Guild - Kenai Fine Arts Center 1. ATTENDANTS. • The Exhibit Gallery and shop attendants are our gold. Please treat them kindly. • Do not ask attendants to perform work outside their normal work duties. 2. WORKSPACE. • Exhibit Gallery and Sales Gallery are not to be used for work space. 3. RESTROOM - KITCHEN. When using the restroom or kitchen: • Replace paper towels and toilet paper rolls when you empty them. • When using the restroom over the weekend, clean up after yourself, and leave the restroom clean for the attendant. • Do not wash hands or other items dirty with clay or similar materials in the sinks, as this plugs up sinks and requires plumber service. 4. SPECIAL EVENTS (reception, opening, fundraiser or other public event). • Attendees must dress appropriately (clean clothes). • Food served at events is for event attendees only. Do not eat at food display. • The KFAC building (except Potters Studio, Sales Gallery and restroom) is closed to all other activities during special events. 5. POTTERS STUDIO. • Kenai Potters Guild (KPG) active members, their assistants or employees, pottery class participants and Peninsula Art Guild (PAG) members on official business are allowed in the Potters Studio. Members of the general public are only allowed in the Potters Studio: (a) under the supervision of an active KPG member; (b) during Exhibit Gallery open hours, (c) during Mother's Day and Christmas sales (held the Saturday before the holiday). • No gas -fired kiln firings during the following times: Exhibit Gallery: for each day the gallery is open, gas off 6 hours before, epeaing -aril during and 1 hour after open hours. Special Events: gas off 6 hours before, during and 2 hours after event. PAG shall provide KPG with a calendar of Exhibit Gallery open hours and special events each month prior to the first of the next month. • All gas -fired kilns shall be continuously and directly monitored by KPG members, inside the Potters Studio, through the entire firing cycle. • The fire door between the Potters Studio and the Exhibit Gallery shall remain tightly shut at all times except to access the restroom. • Use only UL- labeled or - compliant electric kilns. • Clean up pottery clay residues and dust to prevent these materials from entering the rest of the Kenai Fine Arts Center. • If working in the Potters Studio during special events, do not enter the rest of the KFAC building except to travel to and from the restroom. Page 245 of 272 _a o as N a° O 0 O 4 L w 0 m a N m ® 5 !9 U a n o 0) S" 2 td EA r%7 Page 246 of 272 L� Q Q � 2� ?T G O 0 0 O C Q II I I v Q Statement for: Mectrek DR AH®C7to®r lWo�lJts �av voce Froon a 2-8rrV6CS —10. CA9(r5.85IT 6s0116a° rupTm sapper y (KF AQ Gaon-Man oV Changes Days in Cycle: Times Gallery kWh Equals Total kWh used by Gallery: #VALUE! Gallery kWh (A) divided by Total kWh ,¢VALUE! equals Gallery % of charges Gallery % tirnes Current Charges: #VALUE! equals Gallery Electric Charges Current Charges: Less Gallery Charges #VALUE! Equals Studio Charges #VALUE! 0 Paid KPG Ck * 3 Studio and Storage Room, $150 /month 950.00 (Apply 150.00 from pre- -paid amount)) 150.00 ($900 TVFr JuOIDOC 20JL3 paudJ JMpma 2013 KPO 6h �T- ) %pats in Me Page 247 of 272 Az each HEA 090 [PAGE LEFT BLANK INTENTIONALLY] Page 248 of 272 f �\14y 6 / \N �'� � J 4 \ W Y �r t. �. c :� X ; -{ � 1 �, �t �. `, 1 �� ,' -{ � 1 �, j`� CSi ur i KI Z4M Page 252 of 272 CITY OF KENAI PLANNING & ZONING COMMISSION CITY COUNCIL CHAMBERS AUGUST 13, 2014 - 7:00 P.M. CHAIR JEFF TWAIT, PRESIDING MINUTES 1. CALL TO ORDER Commissioner Twait called the meeting to order at 7:00 p.m. a. Pledge of Allegiance Twait led those assembled in the Pledge of Allegiance. b. Roll Call Roll was confirmed as follows: Commissioners present: D. Fikes, G. Pettey, H. Knackstedt, N. Kiel, P. Bryson, J. Twait Staff /Council Liaison present: Council Member Navarre, Acting City Planner R. Koch, City Clerk S. Modigh, Planning Assistant W. Anderson. A quorum was present. c. Agenda Approval MOTION: Commissioner Knackstedt MOVED to approve the agenda and Commissioner Bryson SECONDED the motion. There were no objections. SO ORDERED. d. Consent Agenda MOTION: Commissioner Knackstedt MOVED to approve the consent agenda and Commissioner Fikes SECONDED the motion. There were no objections. SO ORDERED. e. *Excused Absences — Peterson *All items listed with an asterisk ( *) are considered to be routine and non - controversial by the Commission and will be approved by one motion. There will be no separate discussion of these items unless a Commission Member so requests, in which case the item will be removed from the Consent Agenda and considered in its normal sequence on the agenda as part of the General Orders. 2. *APPROVAL OF MINUTES —July 9, 2014 Approved by the consent agenda. Page 253 of 272 3. SCHEDULED PUBLIC COMMENT: (10 Minutes) — None. 4. PERSONS PRESENT NOT SCHEDULED: (3 Minutes) — None. 5. CONSIDERATION OF PLATS: 6. PUBLIC HEARINGS: a. PZ14 -18 —Preliminary Original Quandt Subdivision, 2014 Replat, Submitted by Integrity Surveys, 820 Set Net Drive, Kenai, AK 99611 Acting City Planner Koch reviewed the staff report included in the packet recommending approval as submitted. MOTION: Commissioner Knackstedt MOVED to approve Resolution No. PZ14 -18 and Commissioner Bryson SECONDED the motion, Chairman Twait opened the public hearing. With no one wishing to speak the public hearing was closed. VOTE: YEA: Kiel, Pettey, Bryson, Fikes, Knackstedt, Twait NAY: MOTION PASSED UNANIMOUSLY. 7. UNFINISHED BUSINESS: None 8. NEW BUSINESS: None 9. PENDING ITEMS: None 10. REPORTS: a. City Council — Council Member Navarre reviewed the August 61" City Council Meeting action agenda and advised that a joint work session will be scheduled to further discuss Ordinance No. 2782 -2014 & 2783 -2014 related to amending the land use table. b. Borough Planning — Bryson advised the Commission met on August 11'h and reviewed action taken at the meeting. c. Administration — Koch advised that he would be the Acting City Planner during the PLANNING AND ZONING COMMISSION MEETING August 13, 2014 Page 2 Page 254 of 272 recruitment process for a new Planner. Koch further advised on the upcoming joint work session with Council and a subdivision that will be before the Commission. 11. INFORMATIONAL ITEMS: 12. NEXT MEETING ATTENDANCE NOTIFICATION: August 27, 2014 13. COMMISSION COMMENTS & QUESTIONS Commissioner Bryson inquired as to why there were two opportunities for public testimony; Council Member Navarre advised the change was to further mirror other agendas for continuity. 14. ADJOURNMENT: There being no further business before the Commission, the meeting was adjourned at 7:23 p.m. Minutes prepared and submitted by: Sandra Modigh, CIVIC City Clerk PLANNING AND ZONING COMMISSION MEETING August13,2014 Page 3 Page 255 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 256 of 272 PUBLIC WORKS DIRECTOR CAPITAL PROJECTS MANAGER MID -MONTH REPORT TO: Rick Koch, City Manager FROM: Sean Wedemeyer Public Works Director /Capital Projects Manager DATE: August, 2014 SUBJECT: Mid - Month Report; Public Works / Capital Projects Public Works: • Alaska Pollution Discharge Elimination System (APDES) Permit - pending ADEC review. • Lift Station Telemetry Replacement — In progress. • WWTP O &M Manual Update — Complete. • S. Spruce & Third Ave. Repair — Waiting for FEMA concurrence to advertise. • WWTP Improvements — Design in progress. • Chemical Bid — Procurement documents in development. • Fire Systems Testing Inspection. and Monitoring - Procurement documents in development. • Boating Facility Fuel Vendor - Procurement documents in development. Capital Projects: • Maintenance Facility — Punch list, additional authorized work, and closeout in progress. • Kenai Industrial Park — Change order to pulverize asphalt and place and compact it on Marathon Road approval requested. • Central Heights Roadway Improvements — Seeding established. Closeout in progress. • Vintage Pointe and Senior Center Siding — Construction in progress. CO approval requested. • CCU Hall and Senior Center heated sidewalks and Boiler Replacement — Construction in progress. CO approval requested. Sidewalk — CO approval requested to construct Overland sidewalk. • Kenai Airport Airfield Marking — Construction complete. Closeout in progress. • Reservoir and Water Main Design — Design in progress. • Magic Ave. Design. — In progress. 95% drawings under review. • First St. pavement and curb upgrades design — Funding required. • Flight Service Station Upgrades — Restroom and sidewalk improvements construction to begin soon. CO approval requested to modify the roof construction design. • Public Safety Building Improvements — Boiler replacement design complete. Additional funding required before bidding construction. • Daubenspeck Park Beach — Closeout in progress. • Airport Security Camera Replacement — Contract execution pending FAA response to mandatory contract provisions for consultant agreement. • South Beach Road Design — Design pending land acquisition. • Airport Tree Removal - Closeout pending FAA review. • Warm Storage Design — Proposal requested from professional consultant. Page 257 of 272 u FINANCE DEPARTMENT MID -MONTH REPORT To: Rick Koch, City Manager i f (G From: Terry Eubank, Finance Director Date: August 13, 2014 Re: Monthly Report August 2014 FY2014 yearend procedures are in full swing. Much of the department's efforts over the next couple of months will focused on yearend procedures and financial statement preparation. The annual audit is scheduled for the week of September 29th at which time a complete draft of the City's Comprehensive Annual Financial Report will be ready. Compilation of financial information related to the 2014 Dipnet Fishery is underway for completion of the annual dipnet report. Each year the amount of data available from the City's dipnet cashiering system is greater and provides for greater analysis. Minimal use of iron - rangers this season also will enhance the City's ability to analyze current revenues and project revenues for future years. The City's transition to PREMERA Blue Cross Blue Shield of Alaska from United Health Care have been accomplished with minor issues remaining to be resolved. While not without issues, the efforts of the department's staff made this transition very smooth for City employees. Susan and Robin should all be commended for the hard work and dedication. Municipal Airport Airport Improvement Program: August 2014 Airport Manager's Report Update Master Plan — A revised Phase 2 report was given to City Administration on May 22. Consultant did not include preliminary financial analysis. Administration is drafting Airport capital program financial capabilities analysis for inclusion in the report. Phase 2 Update Master Plan (Aeronautical Survey) — This project is going very well and the mapping process is underway. The line work for the alternatives is completed and readily usable for importing the selected alternatives into the Master Plan and ALP plans. Airfield Marking Project — Close out in process. Security Camera Project — The City documents are being prepared for a design -build project. Snow Removal Equipment (SRE) — The City has signed the FAA grant offer and the new snow removal equipment will be ordered after the August 20 Council meeting. In- house: Operations: Staff is busy mowing, crack sealing, hazing, and landscaping, etc The Airport has completed the hiring process and August 12"', Dan Evenson will be transferring from Building Maintenance to the Airport to fill the Airport Operations Specialist position. Dan started his career with the City of Kenai at the Airport over 14 years ago and we are all looking forward to him coming back. Even though he was assigned to other City Departments he remained available to the Airport and always available to plow snow. Other in -house projects consist of a updating the Airport's Storm Water Pollution Prevention Plan, developing an RFP for the terminal advertising concession, marketing terminal space and lease lots, rehabilitation of Taxiways F, G, & H and the aircraft tie down area, along with rehabilitation of the terminal building. 2014 -08 Page 259 of 272 POLICE DEPARTMENT MID -MONTH REPORT j the a.!VW / TO: Rick Koch — City Manager FROM: Gus Sandahl — Police Chief %1-� DATE: 8113/14 July 2014 SUBJECT: Police & Communications Department Activity — Month of July 2014 Police handled 1,225 calls for service. The Communications Center received 565 emergency 9- 1-1 calls (457 from cell phones). Officers made 45 arrests and wrote 246 reports. Traffic enforcement resulted in 101 warnings, 7 speeding tickets, 3 seatbelt tickets, 4 citations for equipment violations, and 23 citations for "other" traffic violations. There were 9 DUI arrests (0 felony). Officers investigated 12 motor vehicle crashes. One of the crashes was DUI related, and 2 involved moose /caribou. Officers dedicated significant time to dipnet operations. In August, we will complete a draft of the Police dipnet report. All personnel received training on the updated employee handbooks. The Police Department is currently posting a job opening for a vacant police officer position. Page 260 of 272 1 "Villaye with a Past, C# with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 II Telephone: 907- 283 -7535 / FAX: 907 - 283 -3014 l) II 199] TO: Chief Gus Sandahl, Lt. Dave Ross FROM: Cora Chambers - Kenai Animal Shelter DATE: 08/04/2014 SUBJECT: July Monthly Report This month Kenai Animal Shelter took in 58 live animals. Here is a breakdown of animal intake and disposition. qmK ; Cats: Intake Waiver Stray Impound Protective Custody Quarantine Intake: Waiver Stray Impound Protective Custody Other Animals: DOA: Dog Cat ® Disposition: 20 Adopted 25 Euthanized 1 Claimed 0 Field Release 0 Transferred to Rescue Other 12 Disposition: 8 Adopted 4 Euthanized 0 Claimed 0 Transferred to Rescue Other 01 7 1 4 17 0 * ** 18 1 10 28 16 4 1 7 3 Citations (1 loose dog, 2 failure to license) 21 Animals were left in the overnight drop off kennels w/o information 57 Volunteer Hours Logged 23 Animals are known borough animals 0 Kennel Permits 81 Field Investigations & patrols Community /Staff Projects: 'City of Kenai Animal Shelter' now has a Facebook page to help us advertise and re -home more pets! The shelter has implemented the use of portals in the cat kennels to help our cats be more comfortable in their environments with assistance from the shop & maintenance. We have also been working towards other more current shelter practices, by researching shelter guidelines and speaking with other professionals in the industry. Page 261 of 272 KENAI SENIOR CENTER August 2014 REPORT �• tHecrZy uf� KENAI. j� SKA To: Rick Koch, City Manager From: Rachael S. Craig, Senior Center Director Date: August, 2014 Total July Meal Count 2014 Served: Total Congregate Meals Served: 1,259 Total Home Meals Served: 2,346 Total July Meal Count 2013 Served: Total Congregate Meals Served: 1,194 Total Home Meals Served: 2,467 July Rentals: 4 Volunteer Hours: During the month of July there were 184 individuals donated 674 hours of volunteer service. Staff finished state's Bi- Annual report and Borough quarterly report. We have received word there will not be a Medicare Training in August this year. However, this past fiscal year, the Admin. Asst., a "SHIP" volunteer, provided 239 Medicare appointments this past year, compared to her 150 Medicare appointments last year. Admin. Asst. states we have had many new inquiries concerning senior housing. There are 135 seniors on the waiting list, with 25% stating if an apartment was available, they would move in tomorrow. The siding project is almost completed. The seniors have voiced over and over again, how much they like it and are very proud of it! Suduko puzzles are being distributed to the home meal clients as well as the congregate clients. Once a home client completes a puzzle, they send the puzzle back with the meals driver and it is entered along with the congregate clients for a drawing. The home clients find it a good challenge to complete the Suduko puzzle besides feeling apart of the larger senior community and the senior center. The senior center has formed a partnership with Forget -Me -Not Adult Day Service and the Caregiver's Grant Program. We provide space for the Caregiver's monthly group. Forget -Me -Not Adult Day Service program brings their clients to lunch on the day of the Caregiver's group. Between the senior center and Forget Me Not Activity staff, an activity is provided to the adult day service client, so that the "Caregiver " - family member can attend the Caregivers Support Group. This is a valuable service to the family member, they know their family member is being cared for while they enjoy a short period of respite, education, and support from others. 14 seniors had blood pressures taken by the volunteer nurse. 2 seniors requested their BP records for physician's appointments. 1 person is being monitored by their physician. The July dance with the "Button Box Gang" was a great success! We had 80 participants. Peak Oil Field sponsored the event, seniors provided finger food for snack and charged a $5.00tcover fee. The seniors and the band are looking forward to the next polka event, possibly in the fall. Seniors are asking for a larger dance floor!? 3' ) seniors participated in 150 units of weight resistance class, 12 seniors participated in 60 units of video aerobics, 10 senior women participated in 64 units of line dancing. This included entertaining twice this month. 7 seniors participated in Tai Chi in 43 units this month. 16 seniors participated in a Cooper River Rafting trip. They enjoyed the day so much, the event will be repeated in August. There were various "special" days, i.e. "Cow" Day with 16 people participating, "Mutts on Parade" and there were 9 participated in the event. 126 participants in the Blue Grass Jam 3 times this month. Page 262 of 272 City of Kenai Fire Department Mid -Month Report — July 2014 The department has begun its summer operations which include conducting hose and ladder testing. Other projects include a total update of the departments Standard Operating Guidelines. The department in cooperation with Central Emergency Services has placed a 22ft rigid hull inflatable boat in service. The City of Kenai Fire Department has agreed to staff and deploy the vessel as needed through the summer. One of the mission the boat will undertake is during high tides fire and police department members will be patrolling during high tides to enforce the new no wake ordinance. In preparation for the boating session the department participated in boat training provided by Alaska Rescue. The new boat is equipped with twin 115hp outboards and the operation of this type of boat differs significantly from the boat the department currently owns. The department also welcomed a new member. On June 30t0 Firefighter /EMT III Dustin Voss joined the department. Dustin is filling the vacant position created by the retirement of Fire Marshal Eric Wilcox and the promotion of Engineer Tommy Carver to Fire Marshal. We will be having a retirement party for Fire Marshal Wilcox on July 23`' from 5 -7pm at the Kenai Senior Center and all are welcome to attend. As of June 30'" the department has run 598 calls for service which is down 3.07 from 2013 but is within the average for the last four years. Calls for Service: January - June I Page 263 of 272 Kenai "�i'llaye Fidare" with a Past C# with a , 2011 City of Kenai Fire Department Mid -Month Report — July 2014 The department has begun its summer operations which include conducting hose and ladder testing. Other projects include a total update of the departments Standard Operating Guidelines. The department in cooperation with Central Emergency Services has placed a 22ft rigid hull inflatable boat in service. The City of Kenai Fire Department has agreed to staff and deploy the vessel as needed through the summer. One of the mission the boat will undertake is during high tides fire and police department members will be patrolling during high tides to enforce the new no wake ordinance. In preparation for the boating session the department participated in boat training provided by Alaska Rescue. The new boat is equipped with twin 115hp outboards and the operation of this type of boat differs significantly from the boat the department currently owns. The department also welcomed a new member. On June 30t0 Firefighter /EMT III Dustin Voss joined the department. Dustin is filling the vacant position created by the retirement of Fire Marshal Eric Wilcox and the promotion of Engineer Tommy Carver to Fire Marshal. We will be having a retirement party for Fire Marshal Wilcox on July 23`' from 5 -7pm at the Kenai Senior Center and all are welcome to attend. As of June 30'" the department has run 598 calls for service which is down 3.07 from 2013 but is within the average for the last four years. Calls for Service: January - June I Page 263 of 272 KENAI COMMUNITY LIBRARY MONTHLY REPORT theedyet AUGUST 2014 Circulation Adult Fiction 1,801 Internet Access 1,471 Adult Non - Fiction 1,670 Dowaloadable Audio 495 Young Adult Fiction 395 Video I Periodicals 203 Room Booking 150 Juvenile Fiction 769 Music 62 Juvenile Non-Fiction 374 DVDs 2,240 Easy Fiction 1,443 Audio books 168 Easy Non - Fiction 231 Miscellaneous 312 Interlibrary Loan 41 Computer Programs 0 Total Print 6,927 Total Non -Print 4,404 Total Circulation 11,331 In -House circulation 633 Library Door Count....... 9,305 Dowaloadable Audio 495 Freegal Music 99 Downloadable El3ooks 619 In July we had 4 volunteers who put in a total of more than 46 hours. There were 16 Children's programs with 349 total in attendance and 9 adult programs with 28 participants. Inter Library Loan logged 60 orders with 44 items received, 32 returned and 45 items lent by our library to other institutions. Library Cards Issued JULY Income I Fines $ 892.70 Xerox 96.75 Lost/Damaged 153.91 Test Proctoring Fee 80.00 Printing 375.75 Other 10 00 Total income $1,609.11 Library Cards Issued July Homer I ILL 4 Kasilof 7 Kenai 48 Nikiski 4 Non Resident 18 Soldoma 15 Sterling 4 Other Peninsula IS Organization & Other 1 Total 117 Page 264 of 272 PARKS & RECREATION MID -MONTH REPORT August 2014 the ci�,of KENAIAAA SKA July was a particularly busy month as usual due to demands of the personal use fishery. The crews are now busy completing some deferred maintenance tasks, in addition to, performing routine maintenance. The relatively wet summer has helped relieve some of the watering demands, both flowers and turf areas. Most notable area benefited by rain is the wildflower area off Lawton Drive. Once this area is bloomed out for the summer, crews will mow this year's growth in order to prepare a seed bed for next season. Below is list of routine and non - routine tasks accomplished: 1. A total of twelve (12) shelter reservations are scheduled for the month of August; July had a total of nine (9). 2. Crews completed beach clean -up on August 9'h. A few other community members assisted along with the KCHS ski team. 3. Crews wrapping up the new boardwalk on the Ryan's Creek Trail; Daubenspeck Family Park trail is nearly completed. 4. Decorative rocks added to library shrub bed; crews will be installing a border along the trail between City Hall and the library. 5. A large rock has been placed at the new landscaped area along Forest Dr. Home Depot is wrapping up the new fence project. The area will later be seeded and a small gravel path put in. 6. Patches of Tansy (invasive plant species) have been removed in several areas around town. 7. Replacement trees purchased for sports complex; scheduled to be installed next week. 8. Beaver Creek trails covered with wood chips. 9. Crews will be brush - cutting several areas over next few days, namely off Tinker (Kulila) and Spur Hwy right -of -way areas. 10. Requested Wells Fargo Bank remove a dead tree fronting their property, tree was removed early July. 11. City yard clean -up scheduled to begin August 15'h. 12. Leif Hansen Memorial Park landscape project completed; grass coming up nicely. 13. Soccer fields fertilized. 14. Crews scheduled to install horse -shoe pit at Daubenspeck Family Park next week; frames are being prefabricated at the yard. Page 265 of 272 M..4,0 Adult Non- Fiction Young Adult Fiction Periodicals Juvenile Fiction Juvenile Non - Fiction Easy Fiction Easy Non - Fiction Interlibrary Loan KENAI COMMUNITY LIBRARY MID -MONTH JULY 2014 1,330 322 Video 0 93 Room Booking 152 698 Music 48 361 DVDs 2,540 1,445 Audio books 178 319 Miscellaneous 235 24 Computer Programs 10 Total Print 6,222 Total Non -Print 4,485 June Circulation Figures Adult Fiction 1,630 Internet Access 1,322 Total Circulation 10,707 In -House circulation 443 Library Door Count....... 8,598 Downloadable Audio 416 Freegal Music 118 Downloadable EBooks 582 In June we had 4 volunteers who put in a total of more than 16 hours. There were 15 Children's programs with 620 total in attendance and 10 adult programs with 17 participants. Inter Library Loan logged 25 orders with 23 items received, 29 returned and 31 items lent by our library to other institutions. FY Circulation 200,000 150,000 tt■� 100,000 50,000 'Ifs L ■q 2006 2007 2008 2009 2010 2011 2012 2013 2014 The Summer Reading program is up and running. This year's theme is Fizz, Boom, Read! We had a huge turnout for the Stevens Poppet's performance of Beauty and the Beast. We have received notification that we will receive $6,650 for the annual Public Library Assistance grant. Page 266 of 272 JUNE Library Cards Issued June Income Anchor Point 1 Fines $ 818.63 ILL 1 Xerox 67.25 Kasilof 1 Lost/Damaged 122.28 Kenai 38 Test Proctoring Fee 80.00 Nikiski 16 Printing 267.75 Non Resident 8 Soldotna 19 Other 0.00 Sterling 3 Total income $1,355.91 Other Peninsula I1 FY Circulation 200,000 150,000 tt■� 100,000 50,000 'Ifs L ■q 2006 2007 2008 2009 2010 2011 2012 2013 2014 The Summer Reading program is up and running. This year's theme is Fizz, Boom, Read! We had a huge turnout for the Stevens Poppet's performance of Beauty and the Beast. We have received notification that we will receive $6,650 for the annual Public Library Assistance grant. Page 266 of 272 \ ) 2 m § 0 \ C4 zM � k § LL ) § rR / ) IL k \ 2& w a a 0 w «< 06 4 m a z k ¥<§ k p ( LU \ o to q § } § CO § 0 / \ P@ § 0* $ § CL § § p§> § 0 ul 0 § § ® < § I§ \ o / { § § § � 2 q g- 0 E m \ ( § § cr z - < 2 k E< k CO > = § § § ° e m m e E E j\\ IL IL 0 § o G n + < \ § / ) < I ) G ® L ( LLI ca 0 m > m / Cl) / g 0 o 0 z ƒ < > ) < z ca § < § 0 0 o% 2 2/ z Q ® ®z o/ z z § z R _ 8 _ 3 W K k( §) z w\ [ k / R m ez <n \ j [ \ 0 0 a /§ EE < § LLI < I z 0 }\ = ) / 0 j / 0 © 0 \§ § §§= E 2 » i ƒI z- 0 i m <z \ ) } u 0 3 @ 2 U. 0 § b ƒ z ) ] [ ± 2 > ) _ 5 o§5 = < ) 3 2 W ) e= y o \ CL W § § § < § \§ co j § & E z§ z z � <)§ $ 0 f/ \ z S± S- > < ( 0 E § <> ± # %70 72 [PAGE LEFT BLANK INTENTIONALLY] Page 268 of 272 .D2G/Z /l ayo✓' pa-lzt u l. Catch the SQ'='W Thank you for your generous donation of mementos for our team's participation in the 2014 Future Problem Solving International Competition. The team members and the two alternates all had an amazing time. The team competed against other 7th 8th and gth graders in the middle division. Their overall packet score places the team in the top 35 teams out of 71 teams. In the presentation of the action plan, they placed 6th out of the 71 teams. Considering that the participants at the international competition are the top 2% of all students from around the globe who compete in Future Problem Solving, our students have represented Alaska quite well. One of the alternates, Dakota Burgess - Black, who competed on a team with other alternates took first place in the packet. This is extremely difficult because these alternates meet each other fifteen minutes before the competition begins. The regular teams have the security of knowing their team members and knowing how to work with one another. Your continued annual support of Kenai's Future Problem Solving team contributes to the incredible experience in which our students and our coach are able to participate. Thank you again for your support. Sincerely, Theresa and Mike Salzetti Mementos Coordinators On behalf of: Coach Cynthia Romberg And students Maria Salzetti, Raleigh Van Natta, Brittany Gilman, Mayze Potton, Dakota Burgess - Block, and Devynn Heath Page 269 of 272 [PAGE LEFT BLANK INTENTIONALLY] Page 270 of 272 RECEIVEM A,UG 1 3 20A Kenai Ciiy Cierk's Ofilce Dear Friend, It is that time of year again when the Kenai Chamber of Commerce, in partnership with UM RACE COMMITTEF the City of Kenai, start to gear up for the Kenai River Marathon. This year's race is scheduled for BOB FRATEs September 26, 2014. This event includes a Full Marathon, a Half- Marathon, Relay Marathon, DIRECTOR OF KENAI PARKS & RECREATION and a 5k Family Fun Run. KRM RACE DIRECTOR Over the past nine years, the race has grown substantially in both community support and participation with over 320 participants in 20131 The race has featured elite runners, not only locally, but from around the world and we are expecting another large turnout this year. It is truly a community event for Kenai & Soldotna, with the course starting and ending at the Kenai Visitor & Cultural Center and primarily following the Unity Trail from Kenai to Soldotna before coming back to Kenai. The Kenai River Marathon Committee would like to offer you the opportunity to sponsor this annual event. Your sponsorship will insure the continued success of this volunteer based community event, helping to cover the expenses of a growing and thriving annual race. In addition, your business will benefit from the publicity it received as a sponsor. Attached please find a Sponsorship Form with a listing of the various sponsorship levels. Proceeds generated from the Kenai River Marathon will go to the Kenai Community Foundation to support the development of parks and recreation in and around Kenai. In addition, we will have gift bags available for all race participants, so any promotional items would be greatly appreciated as well. Sincerely, Johna Beech President/C00 Kenai Chamber of Commerce and Visitor Center KENAI CHAMBER OF COMMERCE AND VISITOR CENTER 11471 KENAI SPVR Hwy KENAI, ALASKA 99611 PHONE 907.263.1991' FAX 907.283.2230 DR PETER HAN5EN KENAI MEDICAL CENTER VOLVNTEER COORDINATOR JOHNA BEECH KENAI CHAMBER OF COMMERCE MARY RHYNER EMILY KORNELIS JON ULL.EVIK Page 271 of 272 Marathon, Half Marathon & Relay 61� Sunday, September 28, 2014 4�� 5706 )W .* Sponsorship Form tKmm't I ,u..r� Please join us in presenting the 2014 Kenai River Marathon. zoty wo.i Listed below are the different levels of Sponsorship Opportunities available. King Salmon Sponsor: Includes entry fee and t -shirts four (4) people; your business banner (supplied by business) displayed at the startffinish line. Your business name will be in the top position on t -shirts and will receive recognition at $1 000 pre -race dinner. , Opportunity to have a water station ran by and dedicated to your business. Silver Salmon Sponsor: Includes entry fees and t -shirts for three (3) people; your business banner (supplied by business) displayed at the starUflnish line. Your business name on t- shirts. $500 Opportunity to have a water station ran by and dedicated to your business. Exp Date: Dolly Varden Half Marathon Sponsor: Includes entry fees and t- shirts for two (2) people; your business banner (supplied by business) displayed at the starNflnish line. Your business name on t- shirts. $300 Opportunity to have a water station ran by and dedicated to your business. Kenai Watershed Sponsor: Includes your business name on t -shirts and one (1) event t- shirt. $100 Opportunity to have a water station dedicated and ran by your business. Salmon Fry Sponsor: Have a water station dedicated and ran by your business. Not only will you get to advertise your $50 business at your designated water station, you and your staff will cheer runners on and provide liquid refreshments. ❑ Yes, . will sponsor at the following level: Business name ❑ $1000 ❑ $500 ❑ $300 ❑ $100 ❑ $50 ❑ Yes, we would like to participate in running a water station! Not only will you get to advertise your business at your designated water station, you and your staff will cheer runners on, provide liquid refreshments, take care of their items dropped off, and provide aid to the injured ffneeded. Items to bring are a boom box for music, decorations, and healthy snacks. Added incentive - There will be an award given for best water stationl ❑ We would like to include 350 gifts for the runner's gift bags valued at $ each. agree to make this donation in support of the Kenai River Marathon. Representative's name Company Name: Contact Person: Phone /Ext: Email: Mailing Address: We will pay by 0 Check H MasterCard /Visa CC# Exp Date: To be included on all media & T- shirts Please return agreement and high resolution logo to the Kenai Chamber of Commerce by August 31, 2014. Email: tohna0kenaichamber.ore /Fax: 907.283.2230/Maii: 11471 Kenai Spur Hwy Kenai, AK 99611 Page 272 of 272 NOTICE OF PUBLIC HEARING AUGUST 20, 2014 CITY OF KENAI COUNCIL MEETING NOTICE IS HEREBY GIVEN the City of Kenai will conduct a public hearing on the following Ordinance(s) and /or Resolution(s) on the above -noted meeting date. 1. Ordinance No. 2748 -2014 — Amending Kenai Municipal Code 1.90.020 - Duties, to Provide that Boards, Commissions, and Committees Act in an Advisory Capacity to Council. 2. Ordinance No. 2761 -2014 — Amending the Kenai Municipal Code, Title 23, "Personnel Regulations," Chapters 23.05 General Provisions, 23.10 Categories of Service, 23.15 Administration, 23.25 Compensation, 23.30 Personnel Policies and Procedures, 23.35 General Conduct, Discipline, Termination, and Appeal, and 23.40 Benefits to Update Personnel Regulations with State and Federal Law, and Make Technical Changes, and Corrections. 3. Ordinance No. 2786 -2014 — Enacting KMC 23.40.035 - Bona Fide Employer - Sponsored Medical Leave Sharing Arrangement. 4. Ordinance No. 2787 -2014 — Repealing KMC 7.15.110 - Offset Against Delinquent Taxes, and Re- Enacting the Code Section as KMC 7.15.110 - Tax Compliance, to Require Individuals and Businesses Contracting with the City to be in Compliance with City Tax Ordinances. 5. Ordinance No. 2788 -2014 — Increasing Estimated Revenues and Appropriations in the Airport and Airport Equipment Capital Project Funds for the Purchase of Snow Removal Equipment (SRE) — Plow Truck with Attachments. 6. Ordinance No. 2789 -2014 — Amending Kenai Municipal Code Section 11.05.050, "Condition as to Equal Services and Rates," to Require that the City Provide Residents of the City of Kenai with Free Services at the City -Owned Boat Launch and Parking Facility. 7. Resolution No. 2014 -56 — Authorizing the Purchase of Airport Snow Removal Equipment for the Total Amount of $543,706 Utilizing the National Joint Powers Alliance Purchasing Program. 8. Resolution No. 2014 -57 — Designating the State of Alaska, Department of Environmental Conservation (ADEC) Grant Funds for the Project Entitled Wastewater Treatment Plant Upgrades -Phase II as the Number One Local State Funding Priority for Fiscal Year 2016. 9. Resolution No. 2014 -58 — Authorizing a Budget Transfer within the General Fund for the Payment of Back Property Taxes to the Kenai Peninsula Borough on Land to be Retained for a Public Purpose. 10. Resolution No. 2014 -59 — Declaring Equipment, Supplies, and Materials Surplus or Obsolete, and to be Sold as Allowed in Kenai Municipal Code 7.15.060 and 7.15.070. The public hearing will commence at 7:00 p.m., or as soon thereafter as business permits, in the Kenai City Council Chambers, 210 Fidalgo Avenue, Kenai, Alaska, 99611. All interested persons are invited to attend the meeting and participate in the public discussion. Written comments may be sent to the Kenai City Council, c/o Kenai City Clerk, 210 Fidalgo Avenue, Kenai, AW.,99611. Copies of the ordinances and /or resolutions are available in the Office of the Kenai City'Clerk and wily be available at the meeting for public review. Please -be advised, subject to legal limitations, ordinances and /or resolutions may be amended by t n it pr%or adoption without further public notice. San Mo,_ igh,. C ;,.City Clerk Posted: August-4.5 ;,--2014