Contract No. 1993-11J
SETTLEMENT AGREE
Mg
NT
DIS C, - </
M,vzeH THIS SETTLEMENT AGREEMENT is made this /p
pebrail�y, 1993 betweenthe Women's �-LT dal' of
Kodiak Island Borough Bay Service District of the
4 (Service District) and the owners of Lots 4B-
1, 4B-2, and 4B-3, Block 2
Bells Flats Alaska Subdivision, namely
Roy and Linda Madsen, Wayne and Connie Berry
From (Landowners and Randy and Tanya
)• This agreement is subject to the approval of
the Kodiak Island Borough Assembly.
I. During the term of this agreement, the Service District
will provide maintenance of the
Portion of Sargent Creek Road which
extends from the end of Birch Circle toward Jack and Lee Lakes.
This portion is marked on the enclosed map as Section A.
2• During the term of this agreement, the Landowners will be
responsible for maintenance of the drivewa
Creek Road and Lots 4B_1 Y area between Sargent
4B-2 and 4B-3. This portion is marked on
the enclosed map as Section B.
3• This agreement will be
in effect until October 31, 1993•
During that time, the parties will cooperate in
the Borou h good faith to urge
g Assembly to place on the next general election ballot
the question of annexation of the 18.142 acre area described in the
caption of the enclosed map.
4• This agreement does not constitute a waiver or release by
either party concerning its claims regarding maintenance of the
roadway.
SETME"NT AGREEMENT
Page 1
Df
LY
SERVICE DISTRICT:
WOMEN'S BAY SERVICE DISTRICT
Date: By:
4JesFitzj
LANDOWNERS:
Date:
oy ds
Date:fJ
Linda Madsen
Date:
Wayne�erry
Date r ;/1ml ✓�/o
CConnie Berry
Date: i2 /99.3 40m
4
Date: C2
Tanya Krom
This agreement has been approved by motion of the
Assembly this 67ta day of February, 1993.
RODIAR ISLAND BOROUGH ASSEMBLY
SETTLEMENT AGREEMENT
Page 2
f.
ATTEST:
�. D'12Yta ��yry
Rad ak Island Borough Clerk
6702\266D.001
SETTLEMENT AGREEMENT
Page 3
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Kodiak Island Borough
AGENDA STATEMENT
Meeting of: March 18, 1993
Settlement Agreement to provide maintenance
of Sargent Creek Road which extends from the
Circle toward Jack and Lee Lakes
ITEM NO. 12.D.5.
of the portion
end of Birch
The settlement agreement was submitted to the Assembly for their
approval by the Womens Bay Service District. The service district
board approved the agreement at their meeting on February 22, 1993
by a five - two vote. Mr. Fitzjearl, chair, signed the agreement
at that time and the affected property owners indicated they would
sign.
FISCAL NOTES
[X] N/A Expenditure
Required
APPROVAL FOR AGENDA:
RECOMMENDED ACTION:
Amount
Budgeted
Move to approve the Settlement Agreement between Womens Bay Service District
and the owners of Lots 4B-1, 46-2, and 4B-3, Block 2, Bells Flats Alaska Subdivision
to provide maintenance of the portion of Sargent Creek Road which extends from the
end of Birch Circle toward Jack and Lee Lakes.
Kodiak Island Borough
r�-
MEMORANDUM
TO Mayor Selby
FROM Donna Smith, Cle$k
DATE February 26, 1993
SUBJECT Womens Bay Service District
Butch Fitzjearl, chair of Service District No. 2, submitted to the
Assembly, for their consideration, the approved agreement for
maintenance of the portion of Sargent Creek Road which extends from
the end of Birch Circle toward Jack and Lee Lakes.
The service district board approved the agreement at their meeting
on February 22, 1993 by a five - two vote. Mr. Fitzjearl signed
the agreement at the time and the affected property owners
indicated they would be in to sign the agreement.
I have attached copies of all of the information Mr. Fitzjearl
submitted as well as a copy of the agreement that was accepted by
both the service district board and property owners.
Dave Conrad, a member of the board, requested that he be notified
when the item would be placed on the assembly's agenda as he wishes
to speak to it.
February 17, 1993
To the Board of Supervisors of
the Bells Flats Russian Creek Service Area
The Service District has previously been placed on
notice concerning the dangers arising from its
Sargent Creek Road Extended and Sargent failure to maintain
Creek Circle. (Land
Surveying Services Survey of 1/30/92.)
Ms.
Sue Ge This was i2/30/one first by
yat herter to Your chairman from
board on 1/4/93 and 1/18/93. PPearance before
Your
to reach acompromise letter and those meetings, and an attempt
done in P to the immediate problem, nothin
the elapsed thirty days. g has been
I understand that Ms. Geveden has been in contact with
Your leader (?) and informs me that the Borough Attorney has
written to him, but because of his unyielding opposition, he
refuses to address the issue.
Madsens The Purpose of this letter is to inform you that the
The
and Kroms have consequently had to spend several
hundreds of dollars having Sargent Creek Circle plowed and sanded,
which we agreed to do this winter as our compromise offer.
have also had to have Sargent Creek Road Extension sanded on Friday,
FebruaryBut we
12, due to its extremely dangerous condition which caused
two trucks, one an oil truck with chains on dual wheels to
the road, and another four wheel drive vehicle.
fire truck go off
or an ambulance, this could If that had been a
fortunately there were no have resulted in tragedy;
up on the road was almost impossible, le though just trying to stand
let alone trying to move on it.
Of We are not the only people affected by the refusal to act
Your chairman; as you can see
r
a could be any member of the
business or public attempting to traverse this road.
When you were elected to this office, you were required to
take an oath to serve; if your present leader refuses to do this out
of perversity, it does not excuse you from doing your duty. Perhaps
You should consider replacing him with someone who can recognize
the responsibility that goes with the office.
unfortunately would writing thisolve toeachOf You because the next step
YOU would all have to be named litigating this issue, and unfortunately
your
chairman and the Borough, parties defendant, along with
to pay the costs, as g and the Service District would be expected
You chose not to You found out at your Ja
ryazrrY have the IZ� h Attorney 18 meeting which
� �Z Y Atte
Copies to:
Women's Bay Service Area Advisory Board Members, 1993
James Fitzjearl (Butch), Chairman, Box 1880
Jean Barber, SR 11572 So. Russian Creek Rd.
David Conrad, Box 3663
George Lee, 171 Otter Avenue
Laurene Madsen, 12035 Russian Ck. Rd.
Dale Starkovich, 10589 Chiniak Dr.
Brian Stevens, 11500 Bells Flats Rd.
KIB Mayor Jerome Selby, 710 Mill Bay Rd.
Joel Bolger, Borough Atty., 323 Carolyn St.
Our attorney: Susan McLean Geveden, 326 Center St., Suite 203
.JAMIN, EBELL, BOLGER & GENTRY
Mr. James Fit2jearl, Chairman
Women's Bay Service District
P.O. Boa 1880
Kodiak, AK 99615
Re: Women's Bay Road Maintenance
Our File No. 4702-264
Dear Mr. Fit: jearl:
ANCHORAGE OFFICE:
1200 1 SIEEI SU�.TE )O<
ANCHCRAGE, ALASKA 9950
TELE—INE INC x
F
(3IIY Z SIOO A
SEATTLE OFFICE:
300 MILT LIFE SUILOING
605 FIRST AVENUE
SEATT_E, WAS—NGTON 96'04
TELEPHONE: 1206'.22-)63A
FACSIMILE: 2061 623-7521
Susan Geveden called me on February 12, 1993. She said that a Thompson Transfer fuel truck
went off the road near the service district boundary at Birch Circle and Sargent Creek Road. Apparently
a neighbor who stopped to help the truck also went off the road. She said that her clients are concerned
that the delay in reaching an agreement will result in a serious accident. I told her that I would pass on
this concern.
Please let me know if you want me to present to Susan Geveden one of the draft agreements I
forwarded with my letter of February 4, 1993 for resolution of this matter. Otherwise, I am concerned
that the neighbors may file some kind of court action.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
JHB:tah
cc: The Honorable Jerome Selby (via fax and mail)
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\264L.004
A PROFESSIONAL CORPORATION
JOEL H. BOLGER'
ATTORNEYS AT LAW
C. WALTER EBELL`
DUNCAN S. FIELDS
323 CAROLYN STREET
DIANNA R. GENTRY
MATTHEW D. JAMIN
KODIA K. ALASKA 99615
ALAN L.aR HMITT
ALAN L. SCHMITT
TELEPHONE: (907) 466 6024
MICHAEL C. SCIACCA•
FACSIMILE: (907) <66-6112
*ADII—ED TC ALASKA
AND WAS—NCTON BARS
REPLY TO KODIAK OFFICE
ILL OTIEPS Fo 0
—SKA SIR
February 12, 1993
Mr. James Fit2jearl, Chairman
Women's Bay Service District
P.O. Boa 1880
Kodiak, AK 99615
Re: Women's Bay Road Maintenance
Our File No. 4702-264
Dear Mr. Fit: jearl:
ANCHORAGE OFFICE:
1200 1 SIEEI SU�.TE )O<
ANCHCRAGE, ALASKA 9950
TELE—INE INC x
F
(3IIY Z SIOO A
SEATTLE OFFICE:
300 MILT LIFE SUILOING
605 FIRST AVENUE
SEATT_E, WAS—NGTON 96'04
TELEPHONE: 1206'.22-)63A
FACSIMILE: 2061 623-7521
Susan Geveden called me on February 12, 1993. She said that a Thompson Transfer fuel truck
went off the road near the service district boundary at Birch Circle and Sargent Creek Road. Apparently
a neighbor who stopped to help the truck also went off the road. She said that her clients are concerned
that the delay in reaching an agreement will result in a serious accident. I told her that I would pass on
this concern.
Please let me know if you want me to present to Susan Geveden one of the draft agreements I
forwarded with my letter of February 4, 1993 for resolution of this matter. Otherwise, I am concerned
that the neighbors may file some kind of court action.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
JHB:tah
cc: The Honorable Jerome Selby (via fax and mail)
Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\264L.004
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
JOEL H. BCLGER•
ATTORNEYS AT LAW
ANCHORAGE OFFICE:
C. WALTER EBELL'
DUNCAN S. FIELDS
323 CAROLYN STREET
1200 1 STREE-, SVCS 11a
DIANNA R. GENTRYKODIA
ANCHORAGE, ALAS+A 99501
MATTHEW D. JAMIN
K, ALASKA 98615
TELEPUC.NE ANO FA
L.S xMIIT I�
Y9CT"278 -6rQD
ALAN
ALAN L. SCHM1rT
TELEaHON E: (907( 456-602n
MICHAEL C. SCIACCA•
FACSIMILE: (907( A86 6112
SEATTLE OFFICE:
AND WISIINGTON aPS
REPLY TO KODIAK OFFICE
300 MUTUAL IFE BUILDING
0-1ERS AP •EO TO
—AE.
605 FIRST AVENLE
SEATTLE, WAS" NOTION RE OA
February 4, 1993
TELEPHONE: 1206, 622163,A
FACSIMILE: (206, E23 7521
Mr. James Fitzjearl, Chairman
WOMEN'S BAY SERVICE DISTRICT
P.O. Box 1880
Kodiak, AK 99615
Re: Women's Bay Road Maintenance
Our File No. 4702-264
Dear Mr. Fitzjearl:
Enclosed are two proposed agreements for the resolution
of the issues raised by Susan Geveden on behalf of certain
landowners in the Women's Bay Service District. Please note that
the first agreement indicates that the agreement will not
constitute a waiver or release by either party concerning its
claims regarding maintenance of the roadway. This would allow
either party to press its claims concerning the responsibility of
the other parties for maintenance of the roadway, if this matter is
not resolved by the election before October 31, 1993. The second
proposal indicates that the agreement would constitute a waiver and
release by the landowners concerning any claims they may have
against the service district regarding maintenance of the roadway.
Please let me know which agreement you want me to propose
to Susan Geveden on behalf of the landowners in order to resolve
this controversy. Thank you for your attention to this matter.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
oe� 1 H. Bol
JHB:cat
Enclosures
cc (w/encs.): The Honorable Jerome Selby
Mr. Jack McFarland, Presiding Officer
6702\266L.002 Kodiak Island Borough Assembly
;OEL IN. BOLGER•
C. WALTEP EBEL✓
CVNCAN S. riCLOS
JIANNA R. GENTRY
MATTHEW 0. JAMIN
HALTER W. MASON•
ALAN L. SCHMITT
••ICNA EL C. SGACC A•
.•[o -o AL ... A
• .No*oN a.o
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREE-
KOOIAK, ALASKA 99615
The Honorable Jerome Selby, Mayor
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK 99615
-E_EPHONE: (907) 466 6024
=ACSIMILE: (907) 466.6 2
REPLY TO KOOIAK OPFICE
April 7, 1992
c py
ANCI-IOR.GE OI -CE:
no i 5TPEE-. S. -E +O.
ANCHORAGE. ALASKA ..501
'EU EP40NE
No [A .
'90)'. 21a 4,00
SEATTLE C�'iCE:
300 MVTUAI L •E 9UIL.Z. •.G
905 n-5-IE.n.E
SEATTLE. NAS.ING'ON .. CA
---EP-01E: 2061 622- 163.
-.CSI MI Le: 2061 623 15Z
RECEIVED
Re. Women's Bay Road Maintenance - Service District Funding
Our File No. 4702-264
Dear Jerome.
APR - 8 1992
CLERK'S OFFICE
I am writing again on the subject of the maintenance of a road in the Women's Bay area As I
understand your question, there are about five lots which front on Birch Circle within the Women's Bay
service area. The Women's Bay service area is authorized to provide road services. KIBC 4.30.010. The
residents use road access from Sergent Creek Road which extends outside the service district, across land
owned by the Kodiak Island Borough, before it reaches the lots in question within the service district. The
service district has maintained this road for the last eight to ten years. Your question is whether the
Women's Bay service area should continue to mamtam this portion of the roadway in order to reduce
liability.
It is clear from prior Alaska decisions that the state or a municipality may be liable for failure to
maintain a highway by salting, sanding and plowing it. Once the basic decision to maintain the highway
in a safe condition throughout the winter is reached, the state cannot be given discretion to do so
negligently. See State v. Abbott 498 Ptd 712, 722 (Alaska 1972). This duty extends to the elimination
of hazards created by ice and maw. See Kastz v. State 540 P.2d 1037, 1042 (Alaska 1975).
I would recommend continued maintenance of the road in order to reduce liability. I am concerned
that liability may be based upon the fact that the service district has maintained this roadway for the last
eight to ten years. In addition the roadway extends across property owned by the Kodiak Island Borough.
I have taken into consideration the letter you enclosed to Ma. Fleurette Stutes from William
Walton, dated July 21, 1983. I notice that the letter states that neither the borough nor the Bells Flats
Service District are liable for any maintenance of the vehicle tral I also noted that the planning and
zoning commission minutes of July 20, 1983 do not contain this condition on the use of the trail. This
condition on the use of the trail by Ms. Stutes, however, does not protect the borough from liability from
any other landowners or users of the roadway. I would recommend continued maintenance of this
roadway, unless alternative safe and practical access to the lots in question is developed.
You also requested information concerning the requirements for an ordinance adding the Kodiak
Island Borough land surrounding the roadway to the Women's Bay service area. The Kodiak Ialand
Borough Code provides that an ordinance altering a service area is not effective unless approved by a
majority of the qualified voters in each area affected by the ordinance. K113C 4.05.060A The area
Mayor Selby
April 7, 1992
Page 2
affect
ed by thealteringA"serviceareais the ecea annexed to the service area, unless the assembly finds
that the entire exiating service area is affected by the proposed alteration KIBC 4.05.060.B. My
conclusion is that the assembly has not provided for a method of adding an uninhabited area to an existing
service area except by an election which includes the entire district
You may wish to note that the Alaska Statutes would permit the amendment of our service area
ordinance to allow the borough to establish or alter an uninhabited tract of land as part of a service area.
Under the statute, a service area may be established, altered or abolished by ordinance. AS 29.35.450(x).
Prior to the exercise of a power in a service area the exercise of the power must be approved by the
majority of the voters residing in the service area; or all owners of real property in the service area must
consent in writing to the exercise of the power if no voters reside in the service area 9tee AS
29.35.490(a) (2). The borough may also establish a service area that includes only vacant, unappropriated
and unreserved land owned by the borough for planning and disposal purposes. SqI AS 29.35.490(c).
Feel fm to can if you have any questions.
JAMIN, EBF^ BOLGER & GENTRY
JHB:tah
ca c/Mr. Jack McFarland, Presiding Officer
Kodiak Island Borough Assembly
4702\264L.003
JAMIN, EBELL, BOLGER & GENTRY
The Honorable Jerome Selby, Mayor
ANCHORAGE OFFICE:
1300 I STREET, SUITE 704
ANCHORAGE. ALASKA 99501
TELEPHONE ANO FAX
1997) 979-e.DG
SEATTLE OFFICE.•
300 MUTUAL LIFE 9WL01.0
e0E FIRST AVENV[
SEATTLE. WA9MINGTON 9910.
TELE.I.ONC. (206) e99 -1e3.
FACSIMILE:(90e) 623-TS21
nDmac rsana nozougn
A PROFESSIONAL CORPORATION
JOEL H. SOLGER[
ATTORNEYS AT LAW
C. WALTER ESELL-
DUNCAN S. FIELDS
323 CAROLYN STREET
DONNA R. GENTRY
KODIAK, ALASKA 99615
MATTHEW O. JAMIN
NW TER -SAUER NA
JANE E. SAUER
TELEPHONE: (907).ee.eo2+
ALAN L. SCHMITT
FACSIMILE: (007)4ee-1111
MICHAEL C. SCIACCAO
uoH1.RO TO ALAf.A
REPLY TO KOOIAK OFFICE
xx0 wAfnINOTON YM
.L O.xYf wOHITT[O M
AJfxA YR
January 16, 1992
The Honorable Jerome Selby, Mayor
ANCHORAGE OFFICE:
1300 I STREET, SUITE 704
ANCHORAGE. ALASKA 99501
TELEPHONE ANO FAX
1997) 979-e.DG
SEATTLE OFFICE.•
300 MUTUAL LIFE 9WL01.0
e0E FIRST AVENV[
SEATTLE. WA9MINGTON 9910.
TELE.I.ONC. (206) e99 -1e3.
FACSIMILE:(90e) 623-TS21
nDmac rsana nozougn
_ �— /� ��
Ill BM Bs y Road
Kodiak, AK 99616
V
Re,. Service District Finding
Our FRe No. 4702-284
Dear Jerome:
Y -�-s r, _.._ -,--
I am writing in response to your telephone questions concerning two isrues which have seism
regard'mg the use of service district finds
A. Women's Bar Road MWntememe, As I understand your question, there are &bout five lots
which fro®t an Bhrh Circle within the Women's Bay service area The Women's Bay service area is
authmized to provide road services. K BC 4.30.010. The residents also use reed so== from Sergent
Creek Road. A portion of Sargent Creek Bead extends outside the service district before it reaches the
lots is question within the service district. The service district has maintained this road for the last eight
to ten years. Your qu stim is whether the Women's Bay service area can continue to maintain the portion
of this road outside the service district.
I have cwdWly reviewed the statutes and ordinances involved. Based upon that review, it is my
opinion that the service district can continue to maintain this road AS 29.36.4600 authorises the
borough to establish a service arae to provide special services. AS 29 86.470 authorizes the assembly to
Levy taxes in the service area to finance the special services. Em the present can the service area revenues
we used speez5adkv to benefit the lata owned by service district residents I find nothing in the statute
which would pre. ®t the service district from using those revenues to maintain a pm -dm of the road wwch
eag
xtend district residents beyond the service d'boundaries, so long as that maintenance is directly for the benefit of
I have she taken into consideration the provisions of AS 29.36.020(a). '!iris statute clarifies that
a borough wlrirh axeudses road powers las extraterritorial powers to provide streets to areas beyond its
jurisdiction. Although the statute does not apply directly to the present rme, the legialaUlWa intent is
clear to provide for a liberal construction of the powers of a municipality to provide the necessary services
to its residents, and even to others when it is convenient and ptusP.titw ter do aa.
It appears lirom your question that there may be lots outside of the seavrze 4mtrict which are also
served by the portion of Sargent Creek Road which is maintained with service district fimds If questions
arise concerning those landowners' use of the road maintained with service district funds, I suggest
consideration of the following: (1) a contract with the landowners for payment of some fair share of the
maintenance; (2) reimbursement from general Kodiak Island Borough finds; or (3) annexation of the
Mayor Selby
January 16, 1982
Page 2
questionable lots into the service district.
R inland a- el aLa Wav l�nrh .. As I understand your question, there is a portion of
the roadway in the MelnitaaLane arm which emeses a private lot. In ceder to settle any claims o oncernmg
the possession and use of this roadway, the service district proposes to purchase a right-of-way tram the
landowner. The service district requests that the assembly spend a portion of the general fund for
purchase of this right-of-way. I am concerned that this may be a questionable use of borough revenue
As 29.96.110 provided as follows in pertinent part:
9ection29.96.110. ea[Baeoogh$evenuea Bovoughrevenues
reoxived through taus collected on an area -wide basis by the borough
may be expended on general administrative costa and an arm -wide
functions only. Borough revenues received through taus collected an a
non,aree-wide hams may be expended on general administrative costa and
functions that render service only to the area outside all cities in the
In addition to this statut% the Alaska Municipal Code specifically provides that the assembly may Levy
taus in a service area to finance the special services provided. A8 29.96.470. These two sections of the
statute, when read together, suggest that there should be a limitation an the use of general borough taus
to fn special services within a service arae which has already been established.
My understanding is that this portion of the roadway involved is basically a local roadway and not
a mrgar highway which will be of clear benefit to all residents of the borargh. For this reason, it appears
to me that the right -of'" should be puedmad with service district fiords in ceder to avoid a conflict with
the statutes referenced above.
I wto qualm my opinion to a certain extent The statutes are not clew enough for me to say
that the use of general borough funds to Purchase this right-of-way would be absolutely illegal.
Nonetheless, my beat advice would be that service district funds should be used to purchase this right -cif
way in order to avoid any taxpayer odsims of misapplication of public funds.
Feel Free to mil if you have any questions,
JBB:tah
ce Mr. Jack Md%rbnd, Presiding placer
Kodiak
aro=\zea.00 Inland