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HomeMy WebLinkAboutRes1989-037 . . . Sponsored by: Schaefermever CITY OF SEWARD, ALASKA RESOLUTION NO. 89-037 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA APPROVING TEMPORARY DOCK PERMIT FOR THE OPERATION OF A VESSEL DECONTAMINATION FACILITY WHEREAS, on March 24, 1989 the tanker vessel EXXON VALDEZ ran aground in Prince William Sound; and WHEREAS, the resulting oil spill has spread throughout the regions of Prince William Sound including those waters adjacent to Resurrection Bay; and WHEREAS, the oil contamination has been washed ashore in Resurrection Bay and in adjacent areas including the Kenai Fjords National Park and the Caines Head State Park; and WHEREAS, preservation of the natural environment is of critical concern to the citizens of the city of Seward; and WHEREAS, untold numbers of animals, including fish, birds and sea mammals have been contaminated by oil from the oil spill; and WHEREAS, the city of Seward has been requested to assist in every way to minimize the impact of the oil spill; and WHEREAS, negative impacts of the oil spill include not only destruction of the natural wildlife but severe economic impacts for residents of the city of Seward, including fishermen and those who rely upon the fishing industry; and WHEREAS, there is an urgent need for facilities to decontaminate vessels that have been operating in waters affected by the oil spill and which have become contaminated; and WHEREAS, it is in the public interest to facilitate the decontamination of vessels so affected in order to prevent further pollution and danger to the environment; and WHEREAS, the lessee has obtained the consent and guaranty of permitee's obligations under the permit agreement; WHEREAS, the city has been requested by the United States Coast Guard, the Alaska Department of Environmental Conservation, and various private entities to make available on an emergency -1- . . . CITY OF SEWARD, ALASKA RESOLUTION NO. 89-037 basis public facilities for the operation of a Vessel Decontamination Center at the Small Boat Harbor in Seward; NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. this resolution is conditions contained That the temporary dock permit attached to approved subject to all of the terms and therein. Section 2. Due to the emergency nature of the events leading to the need for this agreement, this resolution shall take effect immediately. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 24th day of April, 1989. CITY OF SEWARD, ALASKA AYES: NOES: ABSENT: ABSTAINED: GIESELER, DUNHAM, HILTON, MEEHAN, NOLL, O'BRIEN, SIMUTIS NONE NONE NONE ATTEST: APPROVED AS TO FORM: PERKINS COlE, Attorneys for the city of Seward, Alaska By: ?~M~ Fred B. Arvidson City Attorney (city Seal) -2- 4. . . . CITY OF SEWARD PERMIT TO VECO. INC. FOR USE OF DOCK THIS PERMIT is issued to VECO. Inc., an Alaska corporation ("Permittee") by the City of Seward, Alaska (the "City") this __ 1st day of April, 1989 WHEREAS, because of the March 24, 1989 oil spill from the EXXON VALDEZ in Prince William Sound an acute need presently exists for a location in Seward for a temporary facility to clean petroleum stained boats working on the oil spill response; and WHEREAS, Permittee is in need of such a site and the City is willing to make available for its use the fishing dock adjacent to the Seward Municipal Small Boat Harbor dock; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Permi t Granted. The City hereby grants to Permittee permission to use the area described below for temporary use for the cleaning of petroleum stained vessels deployed in response to the March 24, 1989 oil spill on the terms and conditions stated in this permit. Every time Permittee is referred to in this Permit it shall include Permittee's agents, employees, and subcontractors, including, but not limited to VECO In accordance with the provisions of section 7.10 of the Seward Municipal Code, this permit is subject to approval by the City Council of the City of Seward at its next regularly scheduled meeting, or a special meeting called for the purpose of City of Seward Dock Permit Page 1 . 'It . . . considering this agreement. 2 . Area Covered. The area covered by this permi t is a portion of the East Side of X Float at the Seward Municipal Small Boat Harbor as illustrated on the drawing attached hereto as Exhibit A (the "site"). The precise boundaries of the site covered by this permit shall be established at the site by the City Manager or his designee (hereinafter the "City Manager"). Permittee shall confine its activities entirely within the defined area. 3. Access to Site. For public safety reasons Permittee shall provide security to the site and shall take all reasonable and necessary measures to enforce this provision, including, but not limited to, calling the Seward police or Alaska State Troopers for assistance. 4. Permit Fees. As a permit fee and as compensation to the City for use of the site Permittee shall pay the City a fee of $ 6.728.20 per month during the term of this permit. 5. Restoration of the Site. Upon the termination of this permit, Permittee shall return the site to the City in good condition, usable as it was originally intended. The site shall be free of all oil or other Hazardous Material at the site arising out of or resulting from Permittee's operations at the site. Upon termination of this permit, Permittee shall pay for an environmental assessment to be performed by qualified engineers selected by the City, subject to Permittee's approval which shall not be unreasonably withheld, to establish that the site is free of all Hazardous Material and shall remove and properly dispose of City of Seward Dock Permit Page 2 . . . any Hazardous Material found to be on the site. If, in the opinion of the engineers performing the review, the site including any public dock is too contaminated to be restored to its original condition, Permittee shall replace it without cost to the City. 6. Hazardous Materials. a) Condition of Site. Permittee has had full opportunity to examine the site for the presence of any Hazardous Material and accepts the site in "as is" condition. b) Release of citv. Any other provision of this permit to the contrary notwithstanding, Permittee releases the City from any and all claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs or expenses (including, without limitation, attorney's fees, court costs, litigation expenses, and consultant and expert fees) arising during or after the term of this permit, and resulting from the use, keeping, storage or disposal of Hazardous Material on the site by Permittee, or arising out of or resulting from Permittee's operations at the site. This release includes, without limitation, any and all costs incurred due to any investigation of the site or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision or by law. c) Use of Hazardous Materials on the Site. i) Permittee shall not cause or permit any Hazardous Material to be brought upon, kept or used in or about the site except for the removal of petroleum from vessels and other such City of Seward Dock Permit Page 3 . . . Hazardous Material as is necessary to Permittee's authorized use of the site. All petroleum removed from vessels shall immediately be cleaned up and removed from the waters of the Port of Seward and Resurrection Bay. Containment booms adequate to contain all petroleum removed from vessels shall surround the site. ii) Any Hazardous Material permitted on the site as provided in this paragraph, and all containers therefor, shall be used, kept, stored and disposed of in a manner that complies with all Environmental Laws or other laws or regulations applicable to such Hazardous Material. iii) Except as provided in paragraph 6 ( c) ( i) , Permittee shall not discharge, leak or emit, or permit to be discharged, leaked or emitted, any material into the atmosphere, ground, ground water, sewer system or any body of water, if such material (as reasonably determined by the City, or any governmental authority) does or may, pollute or contaminate the same, or may adversely affect the (a) health, welfare or safety of persons, whether located on the site or elsewhere, or (b) the condition, use or enjoyment of the site or any other area or personal property. iv) Permittee hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage and disposal of Hazardous Material kept or brought on the site by Permittee, its authorized representatives and invitees, and Permittee shall give immediate notice to the City of any violation or potential violation of the provisions of this subparagraph 6 c). City of Seward Dock Permit Page 4 . . . d) Indemnification of Citv. Any other provision of this permit to the contrary notwithstanding, Permittee shall defend, indemnify and hold the City harmless from and against any claims, demands, penalties, fines, judgments, liabilities, settlements, damages, costs, or expenses (including, without limitation, attorney, consultant and expert fees, court costs and litigation expenses) of whatever kind or nature, known or unknown, contingent or otherwise, arising out of or in any way related to (i) the presence, disposal, release, or threatened release of any such Hazardous Material which is on, from or affecting the site, soil, water, ground water, vegetation, buildings, personal property, persons, animals, or otherwise; (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Material; (iii) any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Material; and or (iv) any violation of any laws applicable thereto; provided, however, that this provision shall apply only if the acts giving rise to the claims, demands, penal ties, fines judgments, liabilities, settlements, damages, costs, or expenses (a) occur in whole or in part during or after the term of this permit, and (b) arise in whole or in part from the use of, operations on, or activities on the site by Permittee or its employers, employees, agents, invitees, contractors, subcontractors or authorized representatives. The provisions of this subparagraph shall be in addition to any other obligations and liabilities Permittee may City of Seward Dock Permit Page 5 . . . have to City at law or equity and shall survive the transactions contemplated herein and shall survive the termination of this permit. e) Facilitv Ocerator. For all purposes, Permittee shall be deemed the operator of any facility at the site. f) Hazardous Material Defined. As used in this permit Hazardous Material is any substance which is toxic, ignitable, reactive, or corrosive or which is regulated by any Environmental Law. Hazardous Material includes any and all material or substances which are defined as "hazardous waste," "extremely hazardous waste" or a "hazardous substance" under any Environmental Law. Notwithstanding any statutory petroleum exclusion, for the purposes of this permit the term Hazardous Material includes, without limitation, petroleum, including crude oil or any fraction thereof, petroleum soaked absorbent material and other petroleum wastes. g) Environmental Law Defined. As used in this permit Environmental Laws include any and all local, state and federal ordinances, statutes, and regulations, as now in force or as may be amended from time to time, relating to the protection of human heal th and the environment, as well as any judgments, orders, injunctions, awards, decrees, covenants, conditions, or other restrictions or standards relating to same. Environmental Laws include, by way of example and not as a limitation of the generality of the foregoing, the Resource Conservation and Recovery City of Seward Dock Permit Page 6 . . . Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Water Act, and the Superfund Amendments and Reauthorization Act of 1986. 7. Permits and Reportina. Permittee shall obtain all necessary permits or other consents from all governmental agencies. Copies of all such permits shall be provided to City prior to Permittee commencing work under this permit. without limiting the generality of the foregoing, Permittee shall obtain from the State of Alaska Department of Environmental Conservation written approval of its intended use of the site and of its methods of operation and clean up plans for the site. Copies of such written approvals shall be given to the City immediately upon receipt from the state. Permittee shall promptly make all reports to any federal, state or local government or agency required by any permit or Enviornmental Law, including reports of any spill or discharge of Hazardous Material. The City Manager may order Permittee to immediately cease any operations or activities at the site if the same is being carried out without necessary permits, in violation of the terms of any permit or Environmental Law, or contrary to this permit. 8. Correspondence with and Reoorts to Environmental Aaencies. Permittee shall immediately provide the City with copies of all correspondence and notice, including copies, of all reports between Permittee and any state, federal or local government or agency regulating Hazardous Material which relates to Permittee's use of the site or Permittee's operations at the site. City of Seward Dock Permit Page 7 . . . 9. ~. The term of this permit shall commence on the date provided in the preamble to this permit and shall terminate on May 15, 1989 Permittee recognizes that city has agreed to provide the site to the united States Army for operation as a recreational facility commencing on January 1, 1989, and Permittee agrees to have returned and restored the site to the City in advance of that date. The City shall have no obligation to extend the term of this permit beyond that date. This permit may be terminated by City (a) upon seven (7) days written notice by the City, or (b) immediately if reasonably necessary to comply with any Environmental Law, or (c) immediately at any time by the City Council of the City of Seward for violation of any of the terms of this permit, or of the laws of the city, or of the rules and regulations adopted by the city council for the use of the city facilities. Permittee agrees that this permit may be revoked at any time by the city council for the violation of the terms of this permit, and that the decision of the city council as to the revocation of this permit shall be final and conclusive. In either case, the City shall have no further obligation or liability to Permittee under this permit. Permittee has reviewed the provisions of section 7.10.610-650 of the Seward Municipal Code and agrees to comply with those provisions. 10. Insoection. City reserves for itself and any others whom it may authorize in writing the right of free access to the site for the purpose of inspecting the site and Permittee's operations City of Seward Dock Permit Page 8 . . . and activities at the site; provided, the City or any person whom it authorized to be on the site shall comply with all safety rules and regulations established by Permittee. 11. Insurance. Permittee shall maintain in force comprehensive general liability insurance covering its operations at the site in amounts not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) per person and ONE MILLION DOLLARS ($1,000,000) per occurrence for personal injury and FIVE HUNDRED THOUSAND DOLLARS ($500,000) for property damage occurring during the term of this permit. Permittee shall have City added as an additional insured on the insurance policies required by this paragraph. Such policies shall contain an agreement by the insurers that such policies shall not be cancelled without at least twenty (20) days prior written notice to City. City shall be provided certificates of all such insurance within fifteen (15) days of the date of acceptance of this permit and copies of all such insurance policies within forty five (45) days after the acceptance of this permit. Copies of all replacement policies shall be provided to City promptly within fifteen days of the issuance thereof. 12. Hold Harmless . Permittee shall defend, indemnify and hold City harmless from and against any and all liability or claims arising from acts or omissions of any person and of any nature whatsoever occurring on or relating to Permittee's operations at or use of the site, causing injury to, or death of persons, or loss of, or damage to property, and from any expense, including City of Seward Dock Permit Page 9 . . . attorneys fees, incident to the defense of and by City therefrom except for claims arising out of the sole negligence of the City, its agents or employees. If any action or proceeding is brought against Permittee by reason of any such occurrences, Permittee shall promptly notify City in writing of such action or proceeding. 13. Records. Permittee shall for a period of six years after the expiration of this permit keep records of all Hazardous Material transported to, stored on, and removed from the site, including without limitation, all oil removed from vessels. City shall have the right to audit and copy Permittee's records of such activity. 14. Acceptance and Guaranty and Indemnity Required. This permit shall not become effective until accepted by Permittee and and guaranteed by Exxon Company, U.S.A. (a division of Exxon Corporation), as Contractor for Exxon Shipping Company, (hereinafter "Exxon"), as set forth below. The original permit, after being accepted by Permittee and guaranteed by Exxon shall be returned to the City Manager and retained in the records of the City. DATED this day of , 1989. CITY OF SEWARD BY: City Manager City of Seward Dock Permit Page 10 . . . ACCEPTANCE BY PERMITTEE The terms and conditions of this permit are accepted and agreed to by . DATED this day of City of Seward Dock Permit , 1989. BY: Its Page 11 . . . GUARANTY AND INDEMNITY Exxon Company, U.S.A. (a division of Exxon Corporation), as Contractor for Exxon Shipping Company, agrees to guarantee the obligations of VECO under this permit and shall indemnify, defend and hold the City harmless from and against any loss or damage to the City resulting from Permittee's non- performance under this permit. DATED this day of , 1989. GUARANTOR: EXXON COMPANY, U.S.A. (a division of Exxon Corporation), as Contractor for Exxon Shipping Company By: Its: City of Seward Dock Permit Page 12 . . . STATE OF ALASKA ss. THIRD JUDICIAL DISTRICT THIS IS TO CERTIFY that on this day of , 1989, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared , of , known to me and to me known to be the individual named in and who executed the foregoing document, and he acknowledged to me that he was authorized to execute the foregoing document by authority granted him in the Bylaws or by resolution of the Board of Directors of said corporation, as the act of the corporation, for the uses and purposes therein set forth. WITNESS my hand and notarial 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 , 1989, before me, the undersigned, a Notary Public in and for the State of Alaska, personally appeared , of EXXON COMPANY, U.S.A., (a division of Exxon Corporation), as Contractor for Exxon Shipping Company, known to me and to me known to be the individual named in and who executed the foregoing document, and he acknowledged to me that he was authorized to execute the foregoing document by authority granted him in the Bylaws or by resolution of the Board of Directors of said corporation, as the act of the corporation, for the uses and purposes therein set forth. WITNESS my hand and notarial seal the day and year first hereinabove written. Notary Public in and for Alaska My Commission Expires: City of Seward Dock Permit Page 13 . . . ATTEST: Linda S. Murphy, CMC/AAE City Clerk (City Seal) APPROVED AS TO FORM: PERKINS COIE, Attorneys for the City of Seward, Alaska Fred B. Arvidson City Attorney