HomeMy WebLinkAboutRes2018-064Sponsored by: Hunt
CITY OF SEWARD, ALASKA
RESOLUTION 2018-064
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD,
ALASKA, AUTHORIZING THE ASSIGNMENT, ASSUMPTION AND
AMENDMENT OF THE MAINTENANCE AND OPERATING AGREEMENT
OF THE SHIPLIFT AND DRY DOCK AREA TO JAG, ALASKA, INC.
WHEREAS, the City (Lessor) and Seward Ship's Dry Dock, Inc. (Lessee) entered into the
current ground lease in 1995 and Maintenance and Operating Agreement in 2012; and
WHEREAS, City Council authorized the amendment and assignment of the Ground Lease to
Vigor Alaska — Seward LLC with the passage of Resolution 2014-044 on May 12, 2014, and from
Vigor Alaska — Seward LLC to JAG Alaska, Inc. with Resolution 2018-061 on July 23, 2018; and
WHEREAS, City Council authorized the amendment and assignment of the Maintenance
and Operating Agreement to Vigor Alaska — Seward LLC with the passage of Resolution 2014-050
on May 27, 2014; and
WHEREAS, the City requires Vigor Alaska -Seward LLC (the "Assignor") to enter into an
Assignment and Assumption Agreement (the "Agreement") with JAG Alaska, Inc. for the operation of
the City's shiplift on the leased parcels as a condition of the purchase and sale of the vessel repair and
construction business operated on the leased parcels and the related Assignment, Assumption and
Amendment of the Lease between Assignor and Assignee; and
WHEREAS, the Agreement is attached and will go into effect immediately upon approval of
this resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SEWARD, ALASKA that:
Section 1. The City Manager is authorized and directed to sign, on behalf of the City of
Seward, the Assignment and Assumption Agreement, in the form substantially presented at this
meeting, with JAG Alaska, Inc.
Section 2. This resolution shall take effect immediately after adoption.
1
CITY OF SEWARD, ALASKA
RESOLUTION 2018-064
PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 23rd
day of July, 2018.
THE CITY OF SEWARD, ALASKA
�l
David Squires, M yor
AYES: Casagranda, Seese, McClure, Keil, Towsley, Squires
NOES: None
ABSENT: Horn
ABSTAIN: None
ATTEST:
Brenda J. Ballou, A MC
City Clerk
*CitySeal••'•,t of SE ���'•
• SEAL •
� r
ti• OF AP
164
Agenda Statement
Meeting Date: June 25, 2018
To: Seward City Council
From: Jim Hunt, City Manager
Agenda Item: JAG Alaska, Inc. Maintenance and Operating Agreement
BACKGROUND & JUSTIFICATION:
The City of Seward leased land to and had a Maintenance and Operating Agreement with Seward Ship's
Drydock, Inc. from 1988 until 2014. In 2014 both the ground lease and Maintenance and Operating
Agreement were amended and assigned to Vigor Alaska -Seward LLC. With the passage of Resolution
l 2018-XXX the ground lease was assigned to JAG Alaska. In order for the new lessee to begin operation
the City of Seward requires JAG Alaska, to enter into a reassigned Maintenance and Operations
Agreement. Amendments to the agreement are to change the commencement date of the agreement to
the date of enactment of this resolution, and changing the names and Notice address of the assignee.
Attached is the Maintenance and Operating Agreement for assignment, in substantial form, to accompany
the ground lease for the Premises to JAG Alaska, Inc.
INTENT:
This resolution will authorize and direct the City Manager to enter into the assigned Maintenance and
Operating agreement with JAG Alaska, Inc.
CONSISTENCY CHECKLIST:
Yes
No
NIA
Comprehensive Plan (3.5.1.2, pagel6): Plan for adequate port infrastructure
1.
that will serve the needs of users in the main industrial/Alaska Railroad
X
area and at the Seward Marine Industrial Center SMIC .
2'
Strategic Plan ((Page 7): '"Expand development in the Seward Marine
Industrial Center."
X
3.
Other (list):
X
FISCAL NOTE:
The Maintenance and Operating Agreement does not impact the lease rates, and assigning the
agreement has no direct fiscal impact.
Approved by Finance Department:
ATTORNEY REVIEW: Yes X No Not Applicable
165
RECOMMENDATION:
Approve authorizing the assignment of the Maintenance and Operating Agreement of the
City Shiplift and accompanying leased area to JAG Alaska, Inc.
Resolution 2018-064
fM
166
Assignment, Assumption and Amendment of Agreement
This Assignment, Assumption and Amendment of Agreement (this "Agreement") is made
this day of , 2018, by and among Vigor Alaska - Seward LLC, an Alaska limited
liability company ("Assignor"), JAG Alaska, Inc., an Alaska corporation ("Assignee"), and the
City of Seward, Alaska, an Alaska municipal corporation ("City"). Assignor, Assignee and City
may each be referred to as a "Party" and any two or more of them may be referred to collectively
as the "Parties".
RECITALS
A. By that certain Maintenance and Operating Agreement, dated as of April 1, 2012,
and as amended by the Assignment, Assumption and Amendment of Operating Agreement, adopted
as of June 1, 2014, copies of which are attached hereto marked ANNEX A (the "M&O
Agreement"), by and between City and Assignor or its predecessor in interest, Assignor agreed to
operate and maintain a shiplift facility owned by City (the "Shiplift Premises").
B. The M&O Agreement provides, among other things, the right of Assignor to assign
the M&O Agreement, subject to the consent of the City.
C. Assignor wishes to sell and assign to Assignee, and Assignee wishes to purchase
from Assignor, substantially all of Assignor's assets related to the Shiplift Premises, and to assume
certain specifically identified liabilities of Assignor (the "Purchase/Sale Transaction"). One of
the conditions precedent to the Purchase/Sale Transaction is Assignor's assignment of the M&O
Agreement to Assignee and Assignee's acceptance and assumption of the M&O Agreement, and
City's release of Assignor from future liability under the M&O Agreement. The M&O Agreement
permits Assignor to assign the M&O Agreement, subject to City's consent. Therefore, the closing
of the Purchase/Sale Transaction will be effective only if and when the Parties have executed and
delivered this Agreement and the other conditions in Section 2 below have been satisfied or
waived.
AGREEMENT
NOW, THEREFORE, in consideration of the provisions in, and intending to be legally
bound by, this Agreement, the Parties agree as follows:
1. Recitals, Definitions. The recitals set forth above are incorporated in this Agreement
by reference. Capitalized terms not otherwise defined in this Agreement will have the same
meaning as in the M&O Agreement.
2. Assignment and Assumption of M&O Agreement, Release. Subject to the terms of
this Agreement and the satisfaction of the conditions in this Section 2, Assignor assigns to
Assignee all of Assignor's right, title, and interest in and to the M&O Agreement (the
"Assignment"). Assignee agrees to and accepts the Assignment and assumes and agrees to keep,
perform, and fulfill all of the terms, covenants, conditions and obligations otherwise required to be
kept by Assignor under the M&O Agreement that arise on and after the Effective Date described
below. Lessor releases Assignor from any and all obligations and/or breach of the Lease that
507486\4005\00714195
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167
occurs on or after the Effective Date. This Agreement will not become effective or bind any of the
Parties unless and until each of the following conditions has been satisfied (or waived) (the
"Effective Date"): (a) Assignee has posted a performance and payment surety satisfactory to
Lessor; (b) (b) Assignor has delivered to Assignee, in a form satisfactory to Assignee, a Bill of Sale
and Assignment for the personal property owned by Assignor associated with the Shiplift Premises
(the "Bill of Sale"); and (c) Assignee has delivered to Assignor, in immediately available funds, the
consideration for that property stated in the Bill of Sale.
3. Direct Agreement. The M&O Agreement will continue in full force and effect as a
direct agreement between City and Assignee, as Operator under, and upon and subject to all of the
terms, covenants, and conditions of, the M&O Agreement.
4. Amendment to M&O Agreement. City and Assignee hereby amend the M&O
Agreement, effective as of the Effective Date, to provide as follows:
4.1 Term. Section 2.01 of the M&O Agreement is deleted in its entirety and
substituted with the following: "The Agreement Term commences on July [] 2018, and unless
sooner terminated as provided herein ends at the earlier of (i) date of expiration or termination of
the Lease term, and (ii) the fifth anniversary of July [] 2018".
4.2 Notices. Operator's notice address provided for in Section 7.04 of the M&O
Agreement is deleted in its entirety and substituted with the following:
JAG Alaska, Inc.
225 East Chicago St.
Jonesville, MI 49250
Attention: Tim Jagielski
5. Warranties and Representations. As of the Effective Date and except as otherwise
disclosed in the M&O Agreement:
5.1 C. . City represents and warrants to Assignor and to Assignee that: (a)
the documents attached as ANNEX A are collectively a true and correct copy of the M&O
Agreement immediately prior to the Effective Date; (b) other than the provisions of this Agreement
and that certain Ground Lease dated as of April 25, 1995, as amended, the M&O Agreement
represents the entire agreement between City and Assignor relating to the Shiplift Premises and has
not been amended by any agreement, written, verbal or otherwise, between Assignor and City; (c)
neither City nor Assignor has taken any action to terminate the M&O Agreement, and the M&O
Agreement remains in full force and effect, enforceable in accordance with its terms; (d) beginning
on the Effective Date, and subject to the terms of the M&O Agreement, the Shiplift Premises at all
times hereafter during the term of the M&O Agreement may be used by Assignee (or its assignee
or sublessee) without any lawful interruption by City or any person or persons claiming under or
through City; and (e) City has the right, power, and authority to enter into this Agreement.
5.2 Assignor. Assignor represents and warrants to City and to Assignee that
during the period of Assignor's Operation of the Shiplift Premises: (a) Assignor has not taken any
Assignment, Assumption and Amendment of Agreement
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action to terminate the M&O Agreement; (b) all material obligations under the M&O Agreement
have been complied with by Assignor (or waived by Lessor), no material violation of or default
under any of the terms of the M&O Agreement by Assignor has occurred, and no facts exist which,
with the giving of notice and/or the passage of time, would constitute such a violation or default by
Assignor under the M&O Agreement; (c) Assignor has not assigned the M&O Agreement to any
other person nor has Assignor received notice of an assignment of the M&O Agreement by City;
(d) Assignor has not delegated all or any portion of the operation of the Shiplift Premises to any
other person; and (e) Assignor has the right, power, and authority to enter into this Agreement.
5.3 Assignee. Assignee represents, warrants and covenants to City and to
Assignee that: (a) Assignee has taken all necessary corporate action to enter into this Agreement
and carry out its provisions; (b) Assignee has the financial capacity and expertise to enter into this
Agreement and to operate the Shiplift Premises in accordance with this Agreement; (c) Assignee's
entry into this Agreement and carrying out its provisions does not violate or conflict with the terms
of any law or order of any administrative agency or the terms of any agreement of the Assignee or
any order, judicial or otherwise to which Assignee may be subject; and (d) Assignee has the right,
power, and authority to enter into this Agreement.
6. Environmental Matters. Section 6 (Environmental Matters) of the parties'
Assignment, Assumption and Amendment of Lease dated the same date as this Agreement (the
"Assignment of Lease"), is incorporated in this Agreement by this reference. All references to
"Lessor" in Section 6 of the Assignement of Lease will mean and refer to the City. All other
capitalized terms that are used in Section 6 of the Assignment of Lease will have the meanings
assigned to those terms in this Agreement, or if those terms are not defined in this Agreement, they
will have the meanings assigned to those terms in the Assignment of Lease.
7. Miscellaneous:
7.1 Successors and Assigns. This Agreement will inure to the benefit and will be
binding upon the successors and assigns of each of the Parties.
7.2 Interpretation. The words "includes" and "including" are not limited in any
way and mean "includes or including without limitation." The word "person" includes individuals,
corporations, partnerships, limited liability companies, co-operatives, associations and other natural
and legal persons. The term "and/or" means each and all of the persons, words, provisions or items
connected by that term; i.e., it has a joint and several meaning. The words "will," "shall," and
"must" are synonyms, and each refers to action that is mandatory rather than optional. All
documents and exhibits attached to or referenced in this Agreement are a part of and are
incorporated in this Agreement. Each Party has had an opportunity to have this Agreement
reviewed by its attorneys; therefore, no rule of construction or interpretation that disfavors the
Party drafting these Terms, or that favors the other Party, will apply to the interpretation of this
Agreement. Instead, this Agreement will be interpreted according to its fair meaning. If there is
any conflict between the provisions of the M&O Agreement and the provisions of this Agreement,
the provisions of this Agreement will control, and except as expressly amended by this Agreement,
all of the terms, covenants and conditions of the M&O Agreement will remain in full force and
effect after the Effective Date. All section and paragraph headings of this Agreement are inserted
for convenience only and will not constitute a part of this Agreement, nor will they in any way
Assignment, Assumption and Amendment of Agreement
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169
affect its meaning, construction, interpretation or effect. This Agreement will be construed and
enforced exclusively in accordance with the laws of the State of Alaska.
7.3 Notices. All notices, requests, demands, directions and other communications
(collectively, "notices") under the provisions of this Agreement will be in writing (including email
communication) unless otherwise expressly permitted under this Agreement and will be sent by
first-class or first-class express mail, or by email with confirmation in writing mailed first-class, in
all cases with charges prepaid, and any such properly given notice will be effective when received.
All notices will be sent to the applicable Party at its address in Section 7.04 of the M&O
Agreement (as amended by this Agreement) or, in the case of Assignor, to 5555 N. Channel
Avenue, Portland, OR 97217, Attn: General Counsel, or in accordance with the then unrevoked
written direction from that Party to the other Parties.
7.4 Relationship. The Parties recognize that nothing in the M&O Agreement or
this Agreement is intended or will be construed to create an employer/employee relationship or a
joint venture or a partnership relationship, or to allow City or Assignor to exercise control or
direction over the matter or method by which Assignee performs under this Agreement.
7.5 Severability. The invalidity of any portion of this Agreement will not affect
the force and effect of the remaining valid portions of this Agreement.
7.6 Further Assurances. Each of City, Assignor, and Assignee will, from time to
time upon the request of any of the others, promptly and duly execute, acknowledge and deliver
any and all such further instruments and documents, and will take such further action, as may be
necessary or desirable to confirm this Agreement and to carry out its purpose and intent.
7.7 Counterparts/Execution. This Agreement may be executed in counterparts,
including by means of PDF signature pages, each of which will constitute an original and all of
which, when taken together, will constitute one and the same instrument. The exchange of copies
of this Agreement and of signature pages by electronic transmission will constitute effective
execution and delivery of this Agreement as to the Parties and such copies may be used in lieu of
the original Agreement for all purposes.
8. City's Consent. Assignor and Assignee acknowledge and agree that City's consent
is necessary for this Agreement. City, intending to be legally bound hereby, consents to the
Assignment of the M&O Agreement by Assignor to Assignee pursuant to the terms of this
Agreement. City represents and warrants that it has full power and authority to enter into and grant
this City's consent.
Each of Assignee and Assignor have provided City with certified copies of all necessary corporate
resolutions and other documents evidencing the authority of persons signing this Agreement on
their behalf and to bind them in accordance with the terms of this Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE]
Assignment, Assumption and Amendment of Agreement
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals by their duly
authorized officers as of the date and year set forth opposite their names below, intending to be
legally bound.
Dated:
ASSIGNOR:
VIGOR ALASKASEWARD LLC,
an Alaska limited liability company
By:
Name:
Title:
Dated:
ASSIGNEE:
JAG Alaska, Inc.,
a corporation
By:
Name:
Title:
Dated:
LESSOR:
CITY OF SEWARD, ALASKA,
an Alaska municipal corporation
By:
Name:
Title:
Assignment, Assumption and Amendment of Agreement
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ANNEX A
ANNEX A
Page 1
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City draft of 2/29/2012
MAINTENANCE AND OPERATING AGREEMENT
between
CITY OF SEWARD, ALASKA
and
SEWARD SHIP'S DRYDOCK, INC.
Dated as of April 1, 2012
in
17288
173
TABLE OF CONTENTS
PAGE
ARTICLE General Provisions ----.--..--.'-------..—.5
Section 2.01- Agreement Term .................................................................. 5
Section 2.02' Specific Use Restrictions ...................................................... 5
Section 2.O8~Environmental Matters ......................................................... 5
Section 2.O4-Protection Against Liens ............................................... ....... 7
Section 2.05-NoPreferential Rights tDUse Port Facilities ........................ B
Section 2.06-Security for ShhdUfPromises ............................................... B
Section 2.07-Leasing and Use Of Managed Parcel ................................... 8
ARTICLE Operation and Maintenance of Shiplift Facili ----''9
SgO1kon3.O1 - Revenue ............................................................................... 9
Section 3~O3-Operation OfShbdiftFacility .................................................. 8
Section 3.U4'Maintenance ofAccounts; Statements; .............................. 1O
- Section O.U5-Operating Plan ................................................................... 1O
%how Section 3.06'Inventory ........... ................................................................ 11
Section O.O7-Rates and Charges ----------.-------..--11
ARTICLE ... ................ .............................. 11
Section 4.01-Operator's Duty h]Indemnify .............................................. 11
ARTICLE Assignment 13
Section 5.O1'AssigOnlgOtof Agreement ......... —.................................... 13
""^................................................
ARTICLE 13
Section 6.01 - Events OfDefault ............................................ —................ 13
Section 6.02-Remedies for Default bvOperator ..................... ................ 14
Section 6.03-NOWaiver ofBreach .......................................................... 14
ARTICLE Miscellaneous 15
Section7.01-Time ..................................................................... ............. 15
Section 71}2 Entire Agreement .......................................................... .... 15
Inc.City of Seward and Seward Ship's Drydock,
Maintenance and Operating Agreement
189
174
Section 7.03 - Relationship of Parties.......................................................15
Section 7.04 Notices...............................................................................15
Section 7.05 - Binding Effect.....................................................................16
Section 7.06 Severability.........................................................................16
Section 7.07 - Amendments......................................................................16
Section 7.08 - Execution in Counterparts..................................................16
Section 7.09 - Applicable Law; Jurisdiction...............................................16
Section7.10 Captions.............................................................................16
Exhibit A - Deferred Maintenance
Exhibit B - Description of SMIC
Exhibit C - Fencing Specifications
Exhibit D - Maintenance Tasks and Schedule
Exhibit E - Inventory of Spare Parts
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
0
17490
175
This Maintenance and Operating �
April 1, 2012 between the City of Sewa
("City"), whose address is P.O. Box 167,
Drydock, Inc. ("Operator"), whose address
WHEREAS, since 1980 City has p
Marine Industrial Center (the "SMIC"),
construction of improvements to the area,
Transfer System and related rail systems (tI
WHEREAS, City and Operator wer(
lease agreement effective as of September
memorandum of which was recorded at Bo
Third Judicial District, State of Alaska, un(
real property located in the SMIC, as desc
repair and construction facility; and
WHEREAS, the continued mainten
important to the profitable operation of
business on the Premises; and
WHEREAS, the voters of the City
proposals for the sale or lease of the Shiplif
transfer to Operator maintenance and opo
without a sale or lease of the Shiplift Facilit
and
greement (this "Agreement") is made as of
J, Alaska, an Alaska municipal corporation
Seward, Alaska 99664, and Seward Ship's
, P.O, Box 944, Seward, Alaska 99664.
ovided for the development of the Seward
and City expended over $40 million in
including a Syncrolift Shiplift System, Ship
e "Shiplift Facility"); and
WHEREAS, an arbitrators' decision e
certain rights of City and Operator under the I
City could not enforce any penalty against C
date of the arbitrators' decision and order
Operator's failure to construct a permanent c
a vessel 300 feet in length (the "300-Foot Bui
WHEREAS, the City Council of City
the 300-foot building, requesting that in
Operator assume all expenses of operating
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
n
Lessor and Lessee, respectively, under a
2, 1988, as amended (the "Prior Lease"), a
, 53, Page 255, Seward Recording District,
r which Operator leased from City certain
)ed in the Prior Lease to operate a vessel
ce and operation of the Shiplift Facility is
)perator's vessel repair and construction
of Seward in 1992 rejected two specific
Facility to Operator, and the City desires to
-ating responsibility for the Shiplift Facility
, in accordance with the voters' preference;
nd order dated January 8, 1993, set forth
Irior Lease, including the determination that
perator for a period of 24 months after the
or until January 9, 1995), with respect to
overed repair building capable of enclosing
ding"); and
,.lined to extend the time for construction of
w of constructing the 300-Foot Building
id maintaining the Shiplift Facility; and
Page 1
Vol
176
WHEREAS, City and Operator entered into a new lease and are Lessor and S110111'
Lessee, respectively, under a lease agreement dated April 25, 1995, as amended,
whereby Operator was relieved of the obligation to construct the 300-Foot Building, and
Operator simultaneously entered into that certain Maintenance and Operating
Agreement dated April 25, 1995 ("Initial Agreement") to assume the expense of
maintaining and operating the Shiplift Facility; and
WHEREAS, following expiration of the Initial Agreement the parties entered into a
Maintenance and Operating Agreement dated March 30, 2000, which has been
amended and extended nine times; and
WHEREAS, the work described as "Deferred Maintenance" in Exhibit A has been
completed by the Operator; and
WHEREAS, the parties have determined that it is in their respective interests to
continue their relationship for the maintenance and operation of the Shiplift Facility by
entering into this Agreement, and the Operator agrees to assume the continued expense
of maintaining and operating the Shiplift Facility;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
ARTICLE 1
Definitions
The following terms will have the meanings indicated below unless the context
clearly requires otherwise:
"Agreement" means this Maintenance and Operating Agreement, as amended
from time to time.
"Agreement Term" means the duration of this Agreement as set forth in Section
a Ing
"Annual Facility Costs" means annual costs of the Shiplift Facility as described in
Section 3.02.
"Auditor" means an independent certified public accountant or firm of certified
public accountants engaged by the City.
"City" means the City of Seward, Alaska.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement Page 2
176 92
177
"Environmental Laws" means all 'local, state and federal laws, ordinances,
regulations and orders related to environmental protection; the use, storage, generation,
production, treatment, emission, discharg remediation, removal, disposal or transport
of any Hazardous Substance; or any 0 er environmental matter, including without
limitation any of the following statutes:
(i) Federal Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C.lSections 6901-6991K;
(ii) Federal Comprehqn,
Compensation, and Liability
U.S.C. Sections 9601-9675;
Environmental Response
of 1980, as amended, 42
(iii) Federal Clean Air Act, 42 P.S.C. Sections 7401-7642;
(iv) Federal Hazardous Materi�al Transportation Control Act of
1970, as amended, 49 U.S.C. Sections 1801-1812;
(v) Federal Clean Water Act
Sections 1251-1387;
(vi) Federal Insecticide, Fur
amended, 7 U.S.C. Sections
(vii) Federal Toxic Subst
Sections 2601-2671;
(viii) Federal Safe Drinking
300f-300i-26; and
(ix) Title 46 of the Alaska Stat
"Event of Default" means any of the
"Fiscal Year" means the calendar yealt.
1977, as amended, 33 U.S.C.
de, and Rodenticide Act, as
1-2671;
es Control Act, 15 U.S.C.
ater Act, 42 U.S.C. Sections
described in Section 6.01.
"Hazardous Substances" means any �ubstan.ce or material defined or designated
toxic
as hazardous or toxic waste, hazardous jor t 'ic material, a hazardous, toxic or
radioactive substance, or other similar ten " by any Environmental Laws, and shall
include any such substance or material as ay hereafter become defined or designated
as hazardous or toxic material by any Enviroi mental Laws.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
M
Page 3
178
"Lease" means the ground lease of the Premises between City and Operator,
dated as of April 25, 1995, as amended from time to time.
"Maintenance and Operation Costs" means the actual and necessary costs of
maintaining and operating the Shiplift Facility, including without limitation the reasonable
expenses of management, repair and other expenses necessary to maintain the Shiplift
Facility in good repair and working ordor, roaconable amounts for administration,
overhead, insurance, utilities, consulting and technical services, employer costs
(including pension costs), taxes (but not payments in lieu of taxes), charges payable
pursuant to any licenses, permits or other authorizations of any agency or regulatory
body having lawful jurisdiction, and other similar costs, but excluding depreciation (or
reserves therefor), amortization of intangibles or other bookkeeping entries of a similar
nature, and the costs of capital additions, replacements, betterments, extensions or
improvements to the Shiplift Facility.
"Managed Parcel" means the area within the SMIC designated as such on Exhibit
B hereto, which is south of the fence on the northern boundary of the Premises
constructed by Operator under Section 2.06, and which is not part of the Premises or the
Shiplift Facility,
"Maintenance" means all of the repair, maintenance and replacement of parts and
equipment for the Shiplift Facility as further described in Article 3 and Exhibit D.
"Operator" means Seward Ship's Drydock, Inc., an Alaska corporation, its
successors and assigns.
"Port Facilities" means all public port facilities owned or operated by City from
time to time, including without limitation the Shiplift Facility.
"Premises" means the land plus any improvements described as such in the
Lease.
"Revenue" means all of the following fees or charges for use of the Shiplift
Facility: lift fees; receipts for labor to operate the syncrolift facility in raising or lowering a
vessel; uplands day lay charges; and moorage and wharfage on the Shiplift Facility dock.
"SMIC" means the Seward Marine Industrial Center, consisting of the area shown
on the site map in Exhibit B hereto.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
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17894
179
"Shiplift Facility" means the Syncr(
mechanical shiplift and all associated e(
Premises or other leased property, the si
and 33 connected cofferdam cells compris
I Shiplift System in the SMIC, including the
ipment, all upland rails not located on the
- transfer cradle assembly, the shiplift dock,
g the south breakwater.
"Shiplift Premises" means the Shiplift Facility and the Managed Parcel.
Section 2.01 - Agreement Term. Th
and unless sooner terminated as provide
expiration or termination of the Lease term,
Section 2.uz - bpecnic use Hestricti,
the Shiplift Premises. Operator shall use,
accordance with all laws and regulations
nance. Operator will not use the Shiplift Pri
a public nuisance.
Agreement Term commences April 1, 2012,
herein ends at the earlier of (i) date of
nd (ii) March 31, 2017.
Operator shall not commit any waste of
-ate and maintain the Shiplift Facility in
ruing such use, operation and mainte-
?s in any manner which would constitute
Section 2.03 - Environmental Matters. I Operator covenants and agrees as follows:
(a) Operator will not cause or
generate, manufacture, refine, transport, ti
or process any Hazardous Substance,
Environmental Laws, nor shall Operator ce
unintentional act or omission on the part of
the Shiplift Premises, the release of a
Premises.
(b) Operator will at all times in all r
will use its best efforts to cause all other user
Environmental Laws, including without lim
actions: (i) Operator will, at its own expense,
all conditions of any and all permits, license
approvals required by all Environmental L
required for discharge of (appropriately treatE
air or any sanitary sewers servicing the Ship
into the ambient air or a sanitary sewer in sl
mental Laws, any and all Hazardous Substar
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
OR
rmit the Shiplift Premises to be used to
III, store, handle, dispose, transfer, produce
Kcept in compliance with all applicable
a or permit, as a result of any intentional or
9 Operator or any other user or occupant of
Hazardous Substance onto the Shiplift
spects use its best efforts to comply, and
of the Shiplift Premises to comply, with all
ation undertaking the following specific
rocure, maintain in effect and comply with
and other governmental and regulatory
iws, including without limitation permits
1) Hazardous Substances into the ambient
I Premises; and (ii) except as discharged
ct compliance with all applicable Environ-
es to be treated and/or disposed of by the
Page 5
19
180
Operator will be removed and transported solely by duly licensed transporters to a duly
licensed treatment and/or disposal facility for final treatment and/or disposal (except
when applicable Environmental Laws permit on -site treatment or disposal in a sanitary
landfill).
(c) If the presence, release, threat of release, placement on the Shiplift
Premises, or the generation, transportation, storage, treatment or disposal at the Shiplift
Premises of any Hazardous Substance (i) gives rise to liability (including without
limitation a response action, remedial action or removal action) under any Environmental
Law, (ii) causes a significant public health effect, or (iii) pollutes or threatens to pollute
the environment, Operator shall, at its sole expense, promptly take any and ail remedial
and removal action necessary to clean-up the Shiplift Premises and mitigate exposure to
liability arising from the Hazardous Substance, whether or not required by law.
(d) Operator shall maintain a complete file, which may be inspected at any
reasonable time by City containing copies of all correspondence, permits or other
material between Operator and any federal, state or other governmental authority related
to Hazardous Substances at the Shiplift Premises,
(e) Operator shall give City within 24 hours (i) written notice and a copy of any
notice or correspondence it receives from any federal, state or other governmental
authority regarding Hazardous Substances on the Shiplift Premises or which affect or will
affect the Shiplift Premises, or expenses or losses incurred or expected to be incurred by
Operator or any government agency to study, assess,* contain or remove any Hazardous
Substances on or near the Shiplift Premises, and (ii) written notice of any knowledge or
information Operator obtains regarding the release or discovery of Hazardous
Substances on the Shiplift Premises.
(f) Operator agrees to indemnify, hold harmless and defend City, and the
officers, employees and agents of City, from and against any and all claims, demands,
damages, losses, liens, liabilities, penalties, fines, lawsuits and other proceedings and
costs and expenses (including attorneys' fees), arising directly or indirectly from or out of,
or in any way connected with:
(i) The failure of Operator to comply with its covenants and agreements
contained in this section;
(ii) Any activities on the Shiplift Premises which directly or indirectly
result in the Shiplift Premises becoming contaminated with Hazardous Substanc-
es;
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 6
180 96
181
(III) The discovery of
W
(iv) The clean-up of Haza
without regard to (1) the nature of
stances, and (2) the identity of the p
(g) The provisions of this sect!(
survive the termination or expiration of the
(h) Nothing in this section shall
Operator against any person or entity oth
Hazardous Substances as set forth above.
(I) Operator may, at its own exp
Shiplift Premises, and provide a.copy of tt
date the Agreement Term commences.
Substances at the Shiplift Premises, eitt
Agreement Term commences the parties ,
each party is responsible for such Hazard,
terminate at the end of such 120-day period
enforced against the Shiplift Facility or any p
arising from any work of improvement, howE
good faith and at Operator's own expense c
claim or demand, provided Operator has furr
any comparable statute hereafter enacted fo
from the effect of such a lien claim). Operate
liability and loss of any type arising out of
Operator, together with reasonable attorney
by City In negotiation, settling, defending, or
rdous Substances on the Shiplift Premises;
ius Substances from the Shiplift Premises
activities producing the Hazardous Sub -
on conducting such activities.
including the obligation to indemnify, shall
reement Term.
prejudice or impair the rights or claims of
r than City with respect to the presence of
se, conduct an environmental audit of the
audit report to City, within 60 days of the
if the audit report identifies Hazardous
I (I) within 120 days after the date the
ill agree in writing on the extent to which
s Substances, or (ii) this Agreement shall
,ns. (a) Operator shall not permit to be
A of it any mechanic's or materialman's lien
ter it may arise. However, Operator may in
�ntest the validity of any such asserted lien,
shed the bond required in AS 34.35.072 (or
providing a bond freeing the Shiplift Facility
r shall defend and indemnify City against all
work performed on the Shiplift Facility by
' fees and all costs and expenses incurred
itherwise protecting against such claims.
(b) If Operator does not cause tbe recorded the bond described in AS any
34.35.072 or otherwise protect the property under y alternative or successor statute,
and a final judgment has been rendered �gainst Operator by a court of competent
jurisdiction for the foreclosure of a mech nic's or materialman's lien claim, and if
Operator fails to stay the execution of the judgment by lawful means or to pay the
judgment, City shall have the right, but not t 'Ee duty, to pay or otherwise discharge, stay,
or prevent the execution of any such judgme t or lien or both. Operator shall reimburse
City for all sums paid by City under this par graph, together with all City=s reasonable
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
n
Page 7
182
attorneys' fees and costs, plus interest on those sums, fees, and costs at the rate of 10,5
percent per year from the date of payment until the date of reimbursement.
(c) City may give notice of non -responsibility for any work performed by
Operator on the Shiplift Facility.
(d) On completion of any substantial work of improvement during the
Agreement Term, Operator shall file or cause to be filed a notice of completion. Ope-
rator hereby appoints City as Operator's attorney -in -fact to file the notice of completion
on Operator's failure to do so after the work of improvement has been substantially
completed.
Section 2.05 - No Preferential Rights to Use Port Facilities. This Agreement does
not grant any exclusive or preferential right to use any of City's Port Facilities, except that
Operator shall have a preferential right to use the Shiplift Facility. Operator's use of
City's Port Facilities shall be subject to the applicable tariffs, procedures, rules and
regulations of City in effect from time to time.
Section 2.06 - Security for Shiplift Premises. Operator shall limit access to the
Shiplift Premises by constructing and maintaining at Operator's expense a fence in
accordance with the specifications, and at the location designated, in Exhibit C hereto.
Operator shall provide City and its lessees with 24 hour access to the Managed Parcel.
Section 2.07 - Leasing and Use of Managed Parcel.
(a) City reserves the right from time to time to lease all or any part of the
Managed Parcel, to use all or any part of the Managed Parcel for any purpose, and to
permit others to use all or any part of the Managed Parcel, provided that:
(1) Notwithstanding Section 2.03, Operator shall not be responsible for
any Hazardous Substances on the Managed Parcel resulting from the leasing or use of
the Managed Parcel under this subsection, and any lease of the Managed Parcel by City
shall incorporate obligations of the lessee in the terms of Section 2.03 for the benefit of
City and Operator, Upon the termination of any such lease or use of the Managed
Parcel, City at its own expense, shall conduct an environmental audit of the area subject
to the lease or use, and provide a copy of the audit report to Operator. As between City
and Operator, City shall be responsible for any Hazardous Substance revealed by the
report that was not reported to be present at the commencement of the lease or use.
(2) Notwithstanding Article IV, Operator shall not be responsible for
indemnity or insurance with respect to the leasing or use of the Managed Parcel under
City of Seward and Seward Ships Drydock, Inc.
Maintenance and Operating Agreement
Page 8
18298
183
this subsection, and any lease of the Managed Parcel by City shall incorporate
obligations of the lessee in the terms of Article IV for the benefit of City and Operator.
(b) Operator may use all or an
storage of vessels at the current day la
permission for use by Operator may be ri
Operator agree otherwise, any other use
subject to rental charge per square foo
represented by the currently effective Rent
Section 2.08 - Inspection by City
Premises, for the purpose of inspection
terms of this Agreement. Such inspection
water, and the reviewing and copying of
Shiplift Facility.
am
Section 3.01 - Revenue. Operato
Revenue received from the Shiplift Facility,
Revenue received by Operator.
Section 3.02 - Annual Facility Costs,
for each Fiscal Year. Annual Facility Costs
paid during each Fiscal Year:
part of Managed Parcel for the temporary
charge stated in City's harbor tariff. This
,oked by City at any time. Unless City and
y Operator of the Managed Parcel shall be
equal to double the per square foot rent
nder the Lease.
City may at any time enter the Shiplift
determine Operator's compliance with the
iay include the taking of samples of soil or
iy records relating to the operation of the
7 C K
11
shall have the right to collect and retain all
ind Operator shall account separately for all
perator shall pay the Annual Facility Costs
insist of the following, properly incurred or
(a) Maintenance and Opera�lon Costs of the Shiplift Facility; and
(b) Amounts which may be
or replacements of the Shiplift
covered by insurance.
(a) Operator shall at all times m
maintained, preserved and kept, the Shipi
thereto and extensions thereof and every pi
order and condition and will from time to tit
and proper repairs, renewals and roplacem,
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
M
required to pay the costs of major renewals
:acilitv, to the extent that such costs are not
stain, preserve and keep, or cause to be
Facility and all additions and betterments
and parcel thereof in good repair, working
make or cause to be made all necessary
is thereto and may from time to time make
Page 9
tb�
184
or cause to be made extensions and betterments thereto, and Operator will at all times
operate or cause to be operated the Shiplift Facility in a safe and efficient manner in
accordance with the manufacturer's instructions for operation, and at a reasonable cost.
Operator will comply with all terms and conditions of all licenses and permits which are of
material importance to the operation of the Shiplift Facility Operator shall maintain a
Certificate of Class and maintain a fully functioning cathodic protection system.
(b) Operator shall perform Maintenance of the Shiplift Facility in accordance
with the maintenance schedule prepared by City and Operator and attached as Exhibit D
hereto. This schedule provides for maintenance in accordance with the
recommendations of Norton Corrosion and Pearlson Shiplift Corporation and their
successors, and shall be kept in conformance with the maintenance recommendations of
Pearlson Shiplift Corporation. This schedule provides for major renewals and
replacements to the Shiplift Facility, which shall be modified from time to time in
accordance with the recommendations of Lloyd's Registry of Shipping,
(c) Operator shall permit the Shiplift Facility to be operated only by persons
that Operator determines to be qualified, competent and otherwise fit to perform their
assigned duties in the operation of the Shiplift Facility. Formal training is the
responsibility of Operator and can be obtained from Pearlson Shiplift Corporation or
others.
I (d) Agents of City may enter the Shiplift Facility at all times to inspect the
Shiplift Facility or observe its operation. If City observes the Shiplift Facility being
operated in an unsafe manner or in a manner that does not conform to the
manufacturer's instructions for operation, City may order Operator to cease operating the
Shiplift Facility until the problem has been corrected.
(e) Operator shall, at its own expense, schedule annual inspections of the
Shiplift Facility by Norton Corrosion, Pearlson Shiplift Corporation, Lloyd's Register of
Shipping and such specialty consultants as may be required by Pearlson Shiplift
Corporation or Lloyd's Register of Shipping, and promptly provide to City a copy of the
report of each such inspection.
(f) Operator shall maintain reasonable hours of Shiplift Facility operation, and
reasonable procedures for Shiplift Facility operation, that accommodate all members of
the public desiring to use the services of the Shiplift Facility. In operating the Shiplift
Facility, Operator shall not discriminate against any member of the public desiring to use
the Shiplift Facility with respect to hours of operation, services offered, scheduling of
operations, or any other aspect to Shiplift Facility operation.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 10
184100
185
I
proper books of account for the Shiplift Fc,
Generally Accepted Accounting Principles.
statements showing in reasonable detail in
each Fiscal Year, including Revenues, an
and replacements of and capital additions
be filed with City within 120 days of the clos
Section 3.05 - Operating Plan.
Operator shall prepare and file with City
The operating plan shall include an estimr,
a schedule for repairs and maintenance to
Section 3.06-- Inventory. Operator
parts for the operation and maintenance of
Operator shall transfer that inventory to Ci-
the Agreement Term.
Section 3.07 - Rates and Charges. '
City, Operator shall propose rates and cha
rates and charges shall not discriminate e
different classes of service. Rates and cl-
service if they are reasonably related to -
allocated according to Generally Accepted)
unts andStatements; . Operator shall keep
,lility which shall be kept in accordance with
Operator shall prepare, and submit to City,
ome and expenses of the Shiplift Facility for
ounts expended for maintenance, renewals
the Shiplift Facility. Such statements shall
of each Fiscal Year.
indemnify or defend City, Operator shall deft
any and all claims, actions and demands f(
property, arising from the use of the Shi
Agreement and the Agreement Term by
officers, employees and invitees, or the gene
Section 4.02 - Insurance Reguirerr
shall procure and maintain at its expense
to the terms and conditions set forth in this
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Rn
or to the beginning of each Fiscal Year,
operating plan for the ensuing Fiscal Year.
of Revenues and Annual Facility Costs and
performed during the Fiscal Year.
all maintain on hand the inventory of spare
e Shiplift Facility as shown in Exhibit E, and
upon the expiration or earlier termination of
ith each annual operating plan submitted to
es for the use of the Shiplift Facility. Such
ong users of a class of service or among
,ges do not discriminate among classes of
E) cost of providing each class of service,
counting Principles.
lemnify. In addition to any other duty to
nd, indemnify and hold harmless City from
, death or injury to persons or damage to
lift Facility during the term of the Initial
Dperator, Operator's contractors, agents,
al public.
s. During the Agreement Term, Operator
insurance described in this section subject
;tion.
Page 11
186
(a) Operator shall procure and maintain the following insurance under this
Agreement:
(1) Commercial general liability and automobile insurance, with limits of
liability of $5,000,000 for all injuries, deaths or property damage resulting to any one
person and $5,000,000 limit from any one occurrence. Coverage under such insurance
shall also include explosion, collapse and underground property damage hazards. Such
insurance shall include a blanket contractual liability endorsement. For non -owned
watercraft of Operator or its customers any "watercraft exclusion" in the commercial
liability insurance policy shall be eliminated. Protection and indemnity insurance shall be
provided with the same limits as the commercial liability insurance for the use of
Operator -owned watercraft.
(2) All risk physical damage insurance for any buildings, equipment,
machinery any other property upon the Shiplift Facility at replacement value rather than
original cost.
(3) Workers Compensation Insurance and insurance under the Harbor
Workers and Longshoremen's Compensation Act.
(4) Coverage for vessels in the care, custody or control of Operator
(ship repairer's liability) with limit of liability of $5,000,000.
(5) Environmental impairment liability or pollution legal liability insurance
for all bodily injury and property damage to parties other than Operator caused by
pollution emanating from the Premises, with limit of liability of $1,000,000.
(6) Marine Liability Insurance and any other insurance required under
any permit or tariff of City.
(b) The minimum amounts and types of insurance required under this Section
shall be subject to revision in accordance with standard insurance practices, in order to
provide continuously throughout the Agreement Term a level of protection consonant
with good business practice and accepted standards in the industry. Such factors as
increases in the cost of living shall be utilized in assessing whether the minimum
insurance requirements should be increased. City shall notify Operator of any required
increase in insurance coverage.
(c) All insurance policies shall provide for 30 days' notice to City of cancellation
and/or material change in policy terms. All such policies shall be written by insurance
companies legally authorized or licensed to do business in the State of Alaska, and
acceptable to City. Operator shall furnish City, on forms approved by City, certificates
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 12
186 102
187
evidencing that it has procured the insuran
Shiplift Facility by Operator, Operator,,
insurance policy obtained by Operator unc
shall prevent Operator or City from placini
individual cost and expense, additional or C
(d) On October 1, 2011, and a
Term, Operator shall procure and subrn
insurance broker acceptable to City that th
of coverage of insurance obtained by Oper
opinion of the broker the coverage corn
Agreement.
(e) All of the insurance policies re
carried by Operator or City shall provid
subrogation against City and Operator and
employees, Operator further agrees to waiv
rights of subrogation (whether by loan recei
respect to deductibles under such policies
including the loss of use thereof, whether in
as an additional insured on the general liab
as required above, excluding coverage for
Operator shall promptly and without reques
binders and policies.
Section 5.01 - Assignment of Agreen
reason for the finding by the City Council of .'
into this Agreement with Operator is OperE
and construction facilities on the Premises.
assignment of this Agreement by Operators
assign this Agreement gives City the right im
required herein prior to the operation of the
all be liable for all deductibles under any
r this Agreement. Nothing herein contained
and maintaining at City's or Operator's own
ier insurance as may be desired.
wally thereafter throughout the Agreement
to City a written report from a reputable
broker has reviewed the types and amounts
or and the operations of Operator and in the
lies with Operator's obligations under this
luired above as well as any other insurance
that the insurers waive their rights of
heir respective officers, servants, agents or
and agrees to have its insurers waive any
,ts, equitable assignment or otherwise), with
and with respect to damage to equipment
,ured or not, Operator shall also name City
ity insurance policy maintained by Operator
1aims resulting from City's sole negligence,
by City supply City copies of all insurance
Section 5.02 - Assignment. Notwithst
its entire interest under this Agreement to a
repair and construction business, provided
assignment shall be subject to approval by Cr
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
n
5
nt. The parties recognize that a material
ward that it is in the public interest to enter
Ws experience in operating vessel repair
Except as provided in Section 5.02, any
ill be void, and any attempt by Operator to
ediately to terminate this Agreement.
inding Section 5.01, Operator may assign
person to whom Operator sells its vessel
that the assignee and the terms of the
Page 13
188
ARTICLE 6
Default; Remedies
Section 6.01 - Events of Default. Each of the following shall be an act of default
under this Agreement and the terms "acts of default" and "default" shall mean, whenever
they are used in this Agreement, any one or more of the following events:
(a) Failure by Operator to observe, fulfill or perform any covenants, conditions
or agreements on its part to be observed or performed under this Agreement for a period
of 30 days after written notice specifying such failure, requesting that it be remedied, and
stating that it is a notice of default, has been given to Operator by City; provided,
however, that if said default is such that it cannot be corrected within the applicable
period, it shall not constitute an act of default if corrective action is instituted by Operator
within the applicable period and diligently pursued until the default is corrected.
(b) The making by Operator of an assignment for the benefit of creditors, the
filing of a petition in bankruptcy by Operator, the adjudication of Operator as insolvent or
bankrupt, the petition or application by Operator to any tribunal for any receiver or any
trustee for itself or for any substantial part of its property; or the commencement of any
proceeding relating to Operator under any bankruptcy, insolvency, reorganization,
arrangement or readjustment of debt law or statute or similar law or statute of any
jurisdiction, whether now or hereafter in effect which shall remain undismissed for a
period of six months from the date of commencement thereof.
(c) Any event of default under the Lease.
Section 6.02 - Remedies for Default by Operator. Whenever an act of default by
Operator shall have occurred, and any applicable period for giving notice and any
opportunity to cure shall have expired, City shall have the following rights and remedies
all in addition to any rights and remedies that may be given to City by statute, common
law or otherwise:
(a) City may terminate this Agreement and re-enter the Shiplift Facility and
take possession thereof,
(b) Recover, whether this Agreement be terminated or not, damages incurred
by City by reason of the breach or default by Operator.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 14
188104
189
(c) No expiration or termination c:
liability or obligation to perform of Opera
expiration except insofar as otherwise agre
(d) Each right and remedy of (
cumulative and shall be in addition to ew
Agreement or now or hereafter existing at I
the exercise or beginning of the exercise
remedies provided for in this Agreement or
by statute or otherwise shall not preclude
any or all other rights or remedies provid(
existing at law, or in equity or by statute or
performance by Operator of any term, cc
exercise any right or remedy consequent u
of any such breach or of such terms, cove
shall affect or alter this Agreement, but ea
this Agreement shall continue in full forc
existing or subsequent breach.
this Agreement shall expire or terminate any
Ws which arose prior to the termination or
d in this Agreement.
provided for in this Agreement shall be
other right or remedy provided for in this
or in equity or by statute or otherwise, and
City of any one or more of the rights and
,w or hereafter existing at law or in equity or
9 simultaneous or later exercise by City of
for in this Agreement or now or thereafter
No failure by City to insist upon the strict
mant or condition of this Agreement or to
n a breach thereof, shall constitute a waiver
nts or conditions. No waiver of any breach
and every term, covenant and condition of
and effect with respect to any other then
Section 6.04 - Cure by City. City shall
cure any default of Operator under this Agee
1%W within the time allowed under Section 6.01. Ar
cure shall be payable by Operator upon donan
per annum until paid. 1l
ARTI
Section 7.01 - Time. Time is of the e
The time in which any act is to be performed
excluding the first day and including the Iasi
or a holiday, and then it is also excluded.
Section 7.02 - Entire Agreement. Th
of the parties with respect to the matters
agreement, statement or promise made b
Agreement shall be binding or valid.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
n
have the right, but not the obligation, to
ment if Operator fails to cure the default
y cost incurred by City in effecting such a
d, and shall bear interest at a rate of 15%
a
;ence of each provision of this Agreement,
nder this Agreement shall be computed by
unless the last day is a Saturday, Sunday
Agreement contains the entire agreement
overed by this Agreement, and no other
any party which is not contained in this
Page 15
190
Section 7.03 - Relationship of Parties. Nothing in this Agreement, and no
performance of either party hereunder shall cause the relationship of the parties to be
that of principal and agent, partners or joint venturers, or cause the parties to be
associated in any manner other than as owner and independent contractor.
Section 7.04 - Notices. All notices required or authorized to be given by either
party under this Agreement shall be in writing and shall be served personally or sent by
registered mail as follows:
City of Seward
P.O. Box 167
Seward, Alaska 99664
Attention: City Manager
Seward Ship's Drydock, Inc.
P.O. Box 944
Seward, Alaska 99664
Attention: President
Notice by mail shall be deemed to have been given at the time of mailing. Each of
the above addressees may, by written notice to the other, designate any further or
different addresses to which subsequent notices shall be sent. In addition, the parties
hereto may agree to any other means by which subsequent notices may be sent.
Section 7.05 - Binding Effect. This Agreement shall inure to the benefit of and
shall be binding upon City and Operator and their respective successors and assigns.
Section 7.06 - Severabilit . In the event any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other provisions hereof.
Section 7.07 - Amendments. This Agreement may be amended only by a writing
signed by City and Operator.
Section 7.08 - Execution in Counterparts. This Agreement may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 7.09 - Applicable Law• Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Alaska. Any civil action
brought by any party under this Agreement shall be commenced and maintained in the
Superior Court, Third Judicial District, State of Alaska, at Anchorage. ,
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 16
190106
191
Section Tin
,2. The captions or headings in this Agreement are for
convenience only and no Way define, limit or describe the scope or intent of any
provisions or sections of this Agreement.
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 17
owl
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
ATTEST:
J( 4almqEIX�"
, J, hanna Kinney, CMC
ity Clerk -.0alpffs.-
AL
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
City:
CITY OF SEWARD
Operator:
SEWARD SHIP'S DRYDOCK, INC.
JqK!s T. Pruitt
President
Page 18
F1
192108
193
�
cm
DEFERRED MAI
Backfill transfer pit
Renew oil in winch gear box
Motor reseal 11
Brake reseal
Batter pile repair
Coat fasteners
Rail alignment
Motor dip/bake 7oo.
Line amplifiers
Paint gear box
Paint structural steel wnplatform 1
Cleaning and tightening electrical
connections
Repair ofwooden decking onplat
Replace sill boards
Cathodic protection system
Coating pipe pile msplash zone
(utilizing existing material)
Coating ofO8cofferdam cells
Cables $12.000x28
Motor Cover Repair (vop|aom)
Repair control house doors
Repair air control system
Erosion control
Wiring and conduit for
warping capstan
Lower sheave bearings
Winch junction boxes
Repair support pile
Repair winch covers
City ofSeward and Seward Ship'sDrydook Inc.
Maintenance and Operating Agreement
NEOXIMN
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETE
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
COMPLETED
194
Exhibit B - Description of SMIC
[Attach Plat Map)
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 20
91
194110
195
1%W Exhibit B Maintenance and OperatingA reement between City � of Seward, Alaska
and Seward Ships Drydock, Inc. dated a4 of April 1, 2012
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196
Exhibit C -Fencing Specifications
[Attach map showing Fence and Managed Parcel]
City of Seward and Seward Ship's Drydock, Inc.
Maintenance and Operating Agreement
Page 21
19
196112
197
Jan-21-2000 03:t4cn From-SEWARD BOA7 HARBOR
+9072247187 T-077 P.016
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020051
Exhibit D - Maintenance Tasks and Schedule
|naddition to other obligations inthis Agreement, all maintenance of the Shiplift Facility shall
accomplish and conform with the guidelines inthe operation and maintenance manuals, G-2787 and 5-
2751. as published by NB Gynunn|dt and ounnrd standards set by Peadoon ShipUM Corporation
Maintenance Records P022— Seward Ships Drydook Company (as included herein in Exhibit D\, Norton
Corrosion, and Lloyds ofLondon.
City ofSeward and Seward Ship'oDrydock,Inc.
Maintenance and Operating Agreement
199
n
PF-A-lI>LSQN
OVERVIEW
Periodic inspection and maintenance is re
your shiplift and transfer system. The fo
checklist and comprehensive record
maintenance procedures. A loose leaf n
check sheets. A more stringent maintenan
to be necessary to accomplish the intent
specific classification requirement.
&Xk,b%t D
N(PLIFT MAINTENANCE RECORDS
P022 -- SEWARD SHIPS DRYDOCK CO.
red to assure the safe, reliable operation of
ving forms, charts and logs will provide a
your compliance with recommended
ibook should be used to fie all completed
schedule may be implemented if it is found
the maintenance program or to maintain a
The appropriate record sheet(s) for the maij�tenance activity to be completed should be
copied and used to record all maintenance Masks carried out.
Each sheet must be signed and dated by th person responsible for the maintenance of
the shiplift transfer system upon completionOf the tasks on the sheet.
Each week one of the Weekly Maintena ce Record forms must be completed and
placed in the shiplift maintenance log book.
Each third month one Additional Three Monthly Maintenance Record must be
completed and placed in the shiplift maintenance log book, along with the Weekly Form.
Each sixth month one Additional Six Monthly Maintenance Record must be
completed and placed In the shiplift mainten nce log book, along with the Weekly and
Three Monthly Forms.
Each year one Additional Annual Maintenance Record must be completed and
placed in the shiplift maintenance log book, along with the Weekly, Three Monthly and
Six Monthly Forms.
in addition, tasks to be completed less freqentiy should be entered as comments on
the Additional Annual Maintenance Recor. These tasks include:
1. Every two years, repaint the hoists as necessary.
2. Every two years, repaint cradles.
3. Every five years, change all gearbox oil, unless testing has shown an earlier change
was necessary,
4. Every eight years, strip and examine one set of upper sheave bearings, The
bearings should be renewed if there is an sign of pitting, If there is a need to renew
the bearings, then all bearings of an equal life must also be stripped and examined.
6. Every eight years or 2,000 operating ho rs, whichever occurs first, all hoist wire
ropes must have been replaced (unless eguiar NDT rope evaluation is combined
with semi-annual visual and annual destru tive testing of one wire rope).
6. Every ten years, strip the motors. Clean nd examine the stator windings for signs
of damaged Insulation. Renew the bearin s and reassemble.
ASC-PO22•SMR•110118-RO j Page: t of
Pearlson Shiplift Corporation a 12030 SW 114th Place, lami, Fladda 33176 Gmatl: Inra@shtpllrt.com
Correspondence: Post Office Box 560100, Miami, FL 33256-01 0 - Main: (305) 720.2536 Pax: (305) 596-7161
a.td
200
P!l MLSON
EAa,1t -D -4�
SHIPLIET MAINTENANCE RECORDS
P022 — SEWARD SHIPS DRYDOCK CO.
The above tasks are to be completed each week
Comments and Observations:
The above tasks have been completed: [] YES ❑NO
Signed: - -- Date:
PSC-P022-SMR-110118-RO Page: 2 of 9
Pearlson Shiplift Corporation Q 12030 SW 114th Place, Miami, Florida 33176 Email: info0shiplift,cozn
Correspondence: Post Office Box 560100, Miami, FL 33256-0100 a Main: (305) 720.2536 Fax: (305) 595-7161
200 116
201
IR
PEAR .SON
FX 4111 61 ItT)
HIPLIFT MAINTENANCE RECORDS
P022 — SEWARD SHIPS DRYDOCK CO,
Refer to Maintenance Manuel ford0talls, of tasks to be perrormed.
shiplift Hoist Rotate rope reels in rage. 171
Ropes �sto
2. '?!!Jcall t � sducer pin and and -rotation -
ShIplift Hoist 3. Check the enclosed iear drive oil level, 0
Shiplift Transfer 4Visually inspect trea and inside flanges of cradle
. n
System wheats.
The above tasks are to be completed wllt� the Weekly Maintenance Tasks.
Comments axed Obsei-vations:
The above tasks have been completed: C1 ` ES MNO
Signed: Date:
PSC-PO22-SUR-1 10118-RO Pago. 3 of 9
Pearlson Shiplift Corporation o 12030SW 114th Place, Iaml, Florld,03176 a &maO:Info@shipiift.com
Correspondence: Post Office Box 560100, Miami, FL 33256-010 o Main- (305) 720-2536 fax, (305)595-7161
202
P'EARLSON
.;5x-1,;6-it D
SHIPLIFT MAINTENANCE RECORDS
P022 — SEWARD SHIPS DRYDOCK CO.
ADDITION+L Slk MONTHMAINTENANCE 4 t ji
Refer to Maintenance Manual for details of tasks to be performer!.
(Rope Inspection and Test Results to be recorded on Rope Inspection LoglChart }
(Brake Inspection to be recorded on Brake Inspection Log.)
Clean limit switch actuator plate and paint as
Shiplift Platform
1
required. Check actuator plate fasteners for
❑
tightness.
Shiplift He
2'
Visually inspect the wire ropes for broken wires and
❑
Ropes
wear. Enter results on Wire Rope Inspection Charts.
Shiplift Hoists
3,
Lubricate upper sheave bearings, pawl pivot, hoist
❑
frame bearings.
4
Lubricate limit switch actuator mechanisms In the
❑
hoist limit switch box.
5.
Strip brake, Inspect, clean out dust and check brake
❑
torque and solenoid air gap.
Check Hoist Junction and Limit Switch enclosures
6
are clean and watertight. Check all glands & cables
❑
and tighten all electrical connections.
Shiplift Transfer
system
7
Visually inspect rails and fasteners.
❑
8.
Visually Inspect transfer cradle paint
❑
9
Check cradle and STC wheel U-bolts for torque.
❑
Note any signs of movement and misalignment.
The above tasks must be completed in addition to the Weekly and Three Monthly tasks.
Comments and Observal ions:
The above task has been completed: El YES ❑Nth
Signed: _______ hate:
PSC-PO22-SMR 1101 18-RO
Page: 4 of 0
Pearlson Shipllftcorporation a 12030 SW 114th Place, Miami, Florida 33176 O Email: info@shiplift,com
Correspondence: Post Office Box5601.00, Miami, FL 33256-0100 a Main: (305) 720-2536 Fax: (305) 696.7161
R
F9
202 118
203
PEARLSON I $HIPLIFT MAINTENANCE RECORDS
P022 — SEWARD SHIPS DRYDOCK Co.
DDITJ ONALANNUALIVI A AINTEN ECORD
Refer to Maintenance Manual 7391511,9 of tasks to be performed.
(Lower Sheave Inspection to be recorded on Lower Sheave Inspection Log,
Shlpllft Platform
1
Check steel strucMe (corrosion, welds and
protective coatinQ). I❑
2.
Strip and examine a at least two lower sheaves.
Wpm Wire
'a Wpm
oes W!
3.
Complete a Visual r NDT examination of selected
ropes, Record findings on Rope Inspection Record.
4.
1 Remove one rope and test to destruction,
I Li
Shiplift Hoists
5,
1 Check pawl linkage. Adjust as reguired,
S.
I Inspect Limit switches (NLU, FLU and PLS).
Li
7.
Complete a visual e amination of 10% of the
enck ; a sample of oil from each❑
ear)�if test Indicates it Is necessa!y,
8.
MeoCler test all hoist otors. 7
_
Shiplift Load
Monitoring
system
9. 1
Verify Calibration of t e Load Monitoring System.
install the temporary upport beams and
ad ist/repair where r quired.
❑
Shiplift Transfer
System
10,
Check 25% of wheel for wear and disassemble and
ins ect 10%..
11.
Check that rail levels and rail joints are within
tolerances.
❑
I
12,
I
Check the condition 0 the Side Transfer Carriage
steel and
❑
.deckIng.
Shiplift Control
System
I-
13.
Check all electrical co ' l'o"COn9 in the Control
Console and Motor C ntrolenter. Functional check
the entire Control syst m in all modes of operation.
t
❑
The above tasks are to be completed with tf 0 Weekly, Three Monthly and Six monthly
tasks
Comments and Observations,
The above tasks have been completed: C]
Signed:
PSC-P022-SMR-1 1011 8-RO
Pearlson Shiplift Corporation a 12030 SW 114th Mace,
Correspondence: Post Office Box 560100, Miami, Ff, 332S6.01
MNO
Date.
Page, 5ot9
if, Florida 33176 0 Email- trifo@shipliftcom
* Main: (305)720-2536 Faro (305) 595-7161
204
SHIPLIFT MAINTENANCE RECORDS
P022 — SMARD SHIPS DRYOOCK CO.
Comments and Observations:
P8C-P622-8MR-i 101 18-RO Pago: 6 of 9
Pearlson Shiplift Corporation n 12030 SW 114th Place, Miami, Florida 33176 u Email: info@shiplift.com
Correspondence, Post Office Box $60100, Miami, FL 33256-0100 * Main: (305) 720.2536 Fax-, (306) S95-7161
204 120
205
m
09
PMRLSON
PHIPLIFT MAINTENANCE RECORDS
P022 - SEWARD SHIPS DRYDocK Co.
MOToR/BRAKE
INSPECTION
LOG
77 7
1 NET *11 01-1,11"i
a- MR I
AF
AF
AF
Q AF
F
F
AF
R R d 0
AP�
AF
AF
F
F
F
MINE WIN
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y'k
AF
AF
F
F
01 AF
•ktf
AF
AF
P AF
F
F
F
P
INNIS'=
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t 'v
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F
F
rmo-11'
I VON-; AF
AF
IN
AP
,
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F
s. MR
F
F
SOME
—Comments and Observations:
PSC-PO22-SMR-110118-RO
Page: 7 of 9
PearlsonShipliftCorponatlon a 12030 SW 114th Place, Oaml, Florida 33176 0 Emall: 100@3hipliftcom
Correspondence: Post Office Box 560100, Mimi, FL 33256-0100 a Main- (305)720-2536 Fax: (305) 595.7161
20'
206
PEARLSON F30t)01-t
SHIPLIFT MAINTENANCE RECORDS
P022 - SEWARD SHIPS DRYDOCK Co.
WIRE ROPE INSPECTION CHART
'a
�' FOA
W I
LM, -ME1117,01 t; K
NANO= 111
00
111104
ME
■■
■
0
mom
mom
PSC-PO22-SMR-110118-4RO
Page., 8 Of 9
Pearlson Shiplift Corporation 0 12030 SW114th Place, Miami, Florida 33176 0 Bmalh lllfa@sliiplift.com
Correspondence: Post Office Box 560100, Miami, Ft, 33256-0100 * Main: (305) 720-2536 Fax: (305)595-7161
pq
206 122
2(
11
PSC-PO22-SMR-110118-RO
MAINTENANCE RECORDS
P022 - SEWARD SHIPS DRYDOCK CO.
PearlsonShipliftCorporation * 120305W 114th Place, Miami, Florida 33176 - Email; lo"$1144ftcom
Correspondence: Post OMce Box 5601DO, Miami, FL 33256,0100 • Main: (305) 720-2536 Paz (30S) 595-7:161
207
Page, 9 of9
3
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motor Starter WIOX Relay
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