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HomeMy WebLinkAboutRes1990-031 . . . Sponsored by: Schaefermever CITY OF SEWARD, ALASKA RESOLUTION NO. 90-031 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING THE CITY OF SEWARD GENERAL TERMINAL TARIFF NO. 1 WHEREAS, the City of Seward adopted the General Terminal Tariff No. 1 providing the rules, charges and regulations for the City of Seward's city docks and terminal facilities; and WHEREAS, that tariff has been filed with the Federal Maritime Commission effective February 1, 1990; and WHEREAS, the Federal Maritime Commission has accepted the tariff for filing but has recommended three minor wording changes; and WHEREAS, the changes recommended by the Commission did not change the intent of the City of Seward enacting the tariff; and WHEREAS, the Federal Maritime Commission has suggested that if the City of Seward wishes to use terminal use permits of a standard form, they be made available with the tariff; and WHEREAS, it is the policy of the City Council of the City of Seward to promote competition in the provisions of terminal services at city docks and terminal facilities; and WHEREAS, the City of Seward anticipates that general cargo terminal services will be provided at city docks and terminal facilities and the public interest would be protected by the provision of those services only by permit holders who have met insurance and financial responsibility requirements; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: paragraphs (b) and (c), and the City of Seward General 1, 1990 are hereby amended as Section 1. Subsection 125, Subsection 210, paragraph (d), of Terminal Tariff No. 1 filed February set forth in the attached Exhibit A. Section 2. Subsection 215, paragraph (c), of the City of Seward General Terminal Tariff No. 1 is amended as set forth in the attached Exhibit B, and the standard form terminal use permit attached hereto as Exhibit C is adopted. Section 3. These changes shall be effective on April 1, 1990 and only after filing with the Federal Maritime Commission. 1 . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 90-031 PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 9th day of April, 1990. THE CITY OF SEWARD, ALASKA (w~~ AYES: NOES: ABSENT: ABSTAIN: Burgess, Dunham, Hilton, Meehan, Noll, Sieminski, Simutis None None None ATTEST: APPROVED AS TO FORM: Perkins Coie, Attorneys for the city of Seward, Alaska -Q ~~. S>) ~. ~~b-J'-.("\-"_ Patr1c1a J. Jones Acting City Clerk 7~1V~ Fred B. Arvidson City Attorney (City Seal) 2 . . . CITY OF SEWARD GENE~TARIFF NO. 1 4IPriginal Page 13 Subsection LIAB1LITX~1-"OR LOSS OR DAMAGE AND INDEMNITY (CONTINUED) 125 (b) INDEMNITY: User, vessel, vessel owner and its agents, shippers or consignees shall indemnify and hold harmless the City of Seward against any and all claims arising from any breach or default in performance of any obligation to such parties to be performed under the terms of this tariff or arising from any act or omission of said parties for all costs, attorneys' fees, expenses, and liabilities incurred in the defense of any such claim, action or proceeding brought against the City of Seward. (c) OWNERS RISK 1. Glass, liquids, and fragile articles will be accepted only at owner's risk for breakage, leakage or chafing. Freight on open ground is at owner's risk for loss or damage. Freight subject to freezing will be accepted only at owner's risk. All water craft if and when permitted by the Harbormaster or his authorized agent to be moored at wharves or alongside of vessels, are at owner's risk for loss or damage. 2. 3. 4. ISSUED: 2/01/90 EFFECTIVE: 2/01/90 . . . CITY OF SEWARD GENEA TARIFF NO. 1 4Ibriginal Page 34 Subsection --- "-. -- WHARF DEMURRAGE (CONTINUED) 210 (c) RATES: Wharf Demurrage will be assessed at the following rates: Per day, per ton (2000 lbs.) or portion thereof First 5 day~ After 5 days All Freight N.O.S. $ 2.40 $ 1. 20 Mobile homes, portable buildings and living quarters 100.00/day/unit 25.00/day/unit (d) LAY-DOWN AREAS: The Harbormaster shall designate lay-down areas for cargo. Cargo may not be placed on the city docks or terminal facilities except in the designated lay-down areas. Cargo and freight not placed in a designated lay-down area must be immediately removed from a city dock or terminal facility upon order of the Harbormaster. A vessel, shipper or consignee who refuses to move cargo on demand will be assessed wharf demurrage at five times its applicable rate, starting at the time the vessel shipper on consignee is noticed to move the cargo. In addition, the harbormaster may, in his discretion, move cargo or freight and any expenses or damages, including damage to cargo or freight during such movement, shall be charged to the vessel, shipper or consignee. ISSUED: 2/01/90 EFFECTIVE: 2/01/90 . . . CITY OF SEWARD GENE~TARIFF NO. 1 ~riginal Page 35 HANDLING, LOADING AND UNLOADING (a) HANDLING DEFINED: Handling means the service of physically moving cargo between point of rest and any place on the terminal facility, other than the end of a ship's tackle. (b) LOADING AND UNLOADING DEFINED: Loading and unloading means the service of loading or unloading cargo between any place on the terminal and railroad cars, trucks, lighters or barges or any other means of conveyance to or from the terminal facility. (c) TERMINAL USE PERMIT: Handling, loading, and unloading services are provided by independent agents at all terminal facilities covered by this tariff. A Terminal Use Permit is available to any qualified agent desiring to provide longshoring services at the terminal facilities of the City of Seward. ISSUED: 2/01/90 EFFECTIVE: 2/01/90 Subsection 215 . . . TERMINAL USE PERMIT Port of Seward City of Seward THIS AGREEMENT made and entered into this day of ,19 ,by and between the CITY OF SEWARD, ALASKA, and WHEREAS, the City of Seward operates certain marine terminals suitable for cargo handling at the Port of Seward on a nonexclu- sive basis. NOW, THEREFORE, the parties agree as follows: Section 1. Definitions. A. "Car loading or unloading" means the movement of cargo from the marine terminal to, on, or into trucks, trailers, semi- trailers, or another place on the marine terminal. B. "Check" or "checking" means the inspection of cargo to determine its quantity, condition, or destination, the consignee's identity, and the accuracy of billing. c. "Direct loading or unloading" means the movement of cargo between a vessel and another vehicle or vessel used for transportation. D. "Handling" means the movement of cargo between a vessel and the first place of rest on the marine terminal. E. "Longshore services" means any act of car loading or unloading, direct loading or unloading, handling or storing of cargo. F. "Marine dock" means wharfs and access ramps, and any equipment which is permanently affixed thereto. G. "Marine terminal" means the docks, yards, and related facilities which comprise the Port of Seward. H. "Ci ty" means the City of Seward, Alaska. I. "permi ttee" means J. "Port" means the city docks and terminal facilities owned by the City of Seward at Seward, Alaska. K. "Harbormaster" means the harbormaster of the City of Seward or his designee. Section 2. Term. This permit shall become effective on the day of 19___, and shall expire when any of the insurance policies required by this permit are cancelled or have lapsed for any reason. Expiration or termination of the Permittee's authority to use the marine terminal shall not affect the parties' contin- uing obligations under this permit. Terminal Use Permit/Page 1 of 8 032390 . . . Section 3. Notices. Any notice provided for herein shall be given in writing and transmitted by personal delivery or prepaid first class registered or certified mail to the parties at the following addresses: City: Harbormaster City of Seward P. O. Box 167 Seward, Alaska 99664 Permittee: Notice sent by mail shall be considered given 48 hours after mailing; provided, however, that if notice sent by mail is also sent by telex or facsimile, such notice shall be considered given upon dispatch of the telex message or facsimile if sent any time during normal business hours of the City of Seward administrative offices and prior to expiration of the 48-hour period after mailing. Telex or facsimile messages shall be sent to the parties at the following numbers: City: Attn: Harbormaster City of Seward P. O. Box 167 Seward, Alaska 99664 Facsimile: (907) 224-3248 Permittee: Section 4. Responsibilities of City. During the term of this permit the City shall: A. use its best efforts to provide dock facilities at the Port upon which the Permittee may conduct longshore services as set forth herein; B. designate areas consistent with Port operation in which the Permittee may park and store vehicles and equipment related to its activities at the Port; and c. reasonably provide for the removal of snow and ice from the dock and storage yard. Section 5. Responsibilities of Permittee. During the term of this permit the Permittee: A. May perform longshore services at the marine terminal in accordance with the terms of this permit. Terminal Use Permit/Page 2 of 8 032390 . . . B. Shall furnish all personnel, equipment, supplies, and dunnage necessary to its performance of longshore services under this permit. C. May store cargo on City property only in those areas designated by the harbormaster for the purpose and in a manner approved by the harbormaster. D. At all times other than those when the Permittee is actually servicing a vessel, it shall keep all port facilities it uses pursuant to this permit clean and clear of its personnel, equipment, cargo, debris, dunnage, and other material. If the harbormaster determines that the Permittee has failed to perform as required by this subsection, the harbormaster may direct the Permittee to secure a labor force to so perform at the sole expense of the Permittee and the Permittee shall do so immediately. If the Permittee fails to commence such performance within 24 hours after notice from the harbormaster, the harbor- master may arrange for such performance at the sole expense of the Permittee and the Permittee shall pay those expenses before performing further longshore services pursuant to this permit. E. The Permittee may leave its equipment or vehicles or its employees' vehicles only in those areas designated by the harbormaster for such purposes. The Permittee assumes the risk for any damage that may be sustained by such equipment or vehicles at the Port except for that caused by the City's own negligence. F. The Permittee shall have absolute control of and responsibility for the actions of its employees. Section 6. Cooperation. A. This permit is a nonexclusive authority for the Permittee to perform the services set forth in Section 5 and the Permittee understands that similar authority may be held by others. The Permittee shall cooperate with all other persons authorized to work at the Port. The harbormaster may order the Permittee to schedule its activities so as to accommodate the work of other persons and the Permittee shall comply with such an order. The harbormaster may arrange for or change berthing schedules of vessels in order to maximize public use of the Port facilities. Permittee agrees to provide the harbormaster with advance notice of work or berthings whenever possible and to cooperate with and abide by the harbormaster's scheduling of use of Port facilities. B. Neither Permittee nor its agents, officers, employees or personnel shall intentionally interfere with or hinder the work of other persons authorized to work at the Port nor shall they move, remove, use, deface, damage, destroy or alter any equipment, vehicles, materials, or cargo owned by or under the control of any other person authorized to work at the Port. Section 7. Checkinq Services. A. The Permittee shall check all cargo which it loads, unloads, or handles and prepare allover, short, and damage reports as may be required by a shipper, carrier, or consignee. Terminal Use Permit/Page 3 of 8 032390 . . . B. The Permittee shall be solely responsible for all apparent damage or pilferage suffered by cargo checked by the Permittee and not recited in shipside, execution, final over, short, damage, or unloading reports, except for such damage as is caused by the negligence of the City. C. Except only for damage caused by the negligence of the City, the Permittee shall be solely liable for all errors in its delivery of cargo as a result of improper checking or completion of any report listed in subsection B. of this section. Section 8. Facility Damaqe. A. The Permittee or its personnel shall not deface, damage, destroy or alter any portion of the Port facility or equipment. B. The Permittee shall give immediate verbal notice to the harbormaster if he should become aware of defacement, damage, alteration, or destruction to any part of the Port facility, regardless of the cause. The Permittee shall also submit written notice of such an event to the harbormaster within 24 hours thereafter. Both the verbal and written reports shall fully describe the incident, including the nature of the harm, how it occurred, the identity of all persons involved and all witnesses to the incident. C. If caused by Permittee or its personnel, Permittee may repair or replace such damage, destruction, or alteration at his own expense and by means of his own work force if he pledges to do so within 24 hours after the incident and proposes a schedule of performance satisfactory to the harbormaster. If the Permittee fails to give timely notice to the harbormaster as required by this section, he shall no longer have the right to repair or replace such damage, destruction, or alteration and the harbor- master may proceed to so perform. The Permittee shall pay the City for the cost of repair or replacement plus 25% administration overhead costs within 15 days after presentation of a bill by the harbormaster. The Permittee shall pay any bill submitted in accordance with this section before performing further longshore services under this Permit. Section 9. Work Conditions; Labor Contracts. A. The terms of each current labor agreement, if any, between the Permittee and others who perform longshore services, including any amendments made during the term of this permit, shall govern hours of labor, overtime compensation and other working conditions for the Permittee's longshore workers. B. The Permittee shall provide the Port Director with a copy of any labor agreement described in the preceding paragraph. The Permittee is not required as a condition of this Permit to enter into any labor agreements. Section 10. Nondiscrimination. In performing its duties under this permit, the Permittee may not discriminate against any person on the basis of race, Terminal Use Permit/Page 4 of 8 032390 . . . creed, color, religion, national origin, age, sex, marital status, physical or mental handicap. Section 11. Permits, Laws and Taxes. A. The Permittee shall acquire and maintain in good standing all permits, licenses, and other entitlements necessary to its performance under this permit, including any necessary filings with the Federal Maritime Commission. All actions taken by the Permittee under this permit shall comply with all appli- cable statutes, ordinances, rules and regulations. The Permittee shall pay all taxes pertaining to its performance under this Permit. B. The Permittee shall observe all rules and signs posted at the Port, including "No Smoking" signs posted at the marine terminal and all U.S. Coast Guard Safety Requirements, whether or not they are posted. C. Permittee shall comply with all regulations and require- ments prior to loading, unloading or handling any hazardous chem- icals, flammable liquids, compressed gases or similar hazardous materials. The Permittee shall provide notice to the harbormaster of intent to load, unload, or handle such materials and shall provide to the harbormaster copies of all permits required for such operations by the U.S. Coast Guard, Department of Transpor- tation, Seward Fire Department, or any other government agency with jurisdiction over such operations. D. Operations by Permittee under this Permit shall comply with all tariffs filed by the City with the Federal Maritime Commission. Section 12. Non-Waiver. The failure of the City at any time to enforce a provision of this Permit shall in no way constitute a waiver of the provision, nor in any way affect the validity of this Permit or any part hereof, or the right of the City thereafter to enforce each and every provision hereof. Section 13. Assiqnments. Except insofar as this Permit specifically permits assign- ments, any assignment by the Permittee of its interest in any part of its interest or delegate duties under this Permit shall give the City the right immediately to terminate this permit without any liability. Section 14. Amendment. The parties may amend this contract only by written agree- ment, which shall be attached as an appendix hereto. Section 15. Jurisdiction, Choice of Law. Any civil action arising from this permit shall be brought in the Superior Court for the Third Judicial District of the State of Alaska at Seward. The law of the State of Alaska shall govern the rights and obligations of the parties under this permit. Terminal Use Permit/Page 5 of 8 032390 . . . Section 16. Severability. Any provision of this permit decreed invalid by a court of competent jurisdiction shall not invalidate the remaining provisions of the permit. Section 17. Inteqration. This instrument and all appendices and amendments hereto embody the entire agreement of the parties. There are not promises, terms, conditions or obligations other than those contained herein. This permit shall supersede all previous communications, representation or agreements, either oral or written, between the parties. Section 18. Liability. The Permittee shall indemnify, defend, save, and hold the City harmless from any claims, lawsuits or liability, including attorneys' fees and costs, arising out of loss, damage or injury to persons or property occurring during the course of or as a result of the Permittee's performance under this permit, except for damage caused by the City's own negligence. Section 19. Risk of Loss. The Permittee agrees that any equipment, cargo, vehicle, or other material of any kind which is stored or placed at the Port is so stored and placed as the sole risk of the Permittee. In the event that any such equipment, cargo, vehicles or other materials is damaged or destroyed by any cause other than the City's own negligence, the Permittee shall not seek compensation or restitution of any kind from the City. Section 20. Permit Administration. The harbormaster shall administer this permit on behalf of the City. Section 21. Termination. Either the City or the Permittee may terminate this permit at any time for any reason by notifying the other party in writing at least 20 days before the date upon which such termination is to be effective. Neither party shall be liable to the other under this permit after the effective date of termination. Section 22. Disputes. In the event of a dispute between the parties under this permit, the harbormaster shall reduce his position to a written decision and serve a copy thereof upon the Permittee. The Permittee may appeal the decision by written application to the city manager within 14 days after receiving the harbormaster's decision. While the appeal is pending, the Permittee shall abide by the decision of the harbormaster. The Permittee may appeal the decision of the city manager by written application to the City Council within 14 days after receiving the city manager's Terminal Use Permit/Page 6 of 8 032390 . . . decision. While the appeal is pending the Permittee shall abide by the decision of the city manager. The decision of the City Council shall be final. Section 23. Insurance. A. During the term of this permit, the Permittee shall maintain in good standing insurance described in subsection B. of this section. Prior to its performance pursuant to this permit, the Permittee shall furnish the harbormaster a certificate of insurance in accordance with subsection B. of this section. B. The Permittee shall obtain: 1. Bodily injury liability insurance in an amount not less than $500,000 for anyone person and not less than $1,000,000 for anyone accident or occurrence. 2. Standard Workers' Compensation, Social Security, Unemployment, Employer's Liability Insurance and Longshoremen's and Harbor Workers' Compensation Insurance as may be required by state or federal law. 3. Property damage liability, which shall include any and all property whether or not in he care, custody, or control of the Permittee, in an amount of not less than $1,000,000 on account of anyone accident. C. The insurance obtained pursuant to this section shall name the City as an additional insured, and provide for written notice of any termination, cancellation, or expiration of the insurance to be delivered to the harbormaster no less than 30 days before the effective date thereof. Section 24. Fire Prevention. The Permittee shall keep fire lanes clear and maintain fire control equipment in a readily accessible location. Section 25. Breach and Remedies. A. A violation of any of the provisions of Section 6 of this permit shall be grounds for immediate termination. of this permit upon written notice to Permittee. B. A violation of any other provision of this permit or of any conditions imposed upon a voyage permit, and the failure to remedy the same within 48 hours after written notice to Permittee of the violations, shall constitute grounds for immediate termina- tion of this permit. IN WITNESS WHEREOF, the parties have executed this permit on the date first hereinabove written. CITY OF SEWARD, ALASKA PERMITTEE: By City Manager/Clerk By Name: Date: Terminal Use Permit/Page 7 of 8 032390 . . . Approved as to form: Perkins Coie By Harbormaster By Fred B. Arvidson Date: Name: Date: STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this ____ day of , 19___ before me, the undersigned Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared , known to me and to me known to be the of the City of Seward, and known to be the individual named in and who executed the foregoing document, and he/she acknowledged to me he/she was authorized to execute the foregoing document by authority granted them in the Seward City Code of Ordinances for said City and for the uses and purposes therein set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first hereinabove written. Notary Public in and for Alaska My commission expires: STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this ____ day of , 19___ before me, the undersigned Notary Public in and for the State of Alaska, duly commissioned and sworn as such, personally appeared , known to me and to me known to be the individual named in and who executed the foregoing instrument, and he acknowledged to me that he did sign and seal the same as his voluntary act and deed for the uses and purposes therein mentioned. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first hereinabove written. Terminal Use Permit/Page 8 of 8 032390 Notary Public in and for Alaska My commission expires: