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HomeMy WebLinkAboutRes2012-036 Sponsored by: Hunt CITY OF SEWARD, ALASKA RESOLUTION 2012 -036 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROPRIATING FUNDS FOR A LEGAL JUDGMENT WITH RBCA IN THE AMOUNT OF $92,399.13 WHEREAS, the City of Seward was named defendant in a lawsuit brought in 2008 against the City by the Resurrection Bay Conservation Alliance, et aL; and WHEREAS, the outcome of that lawsuit is that the City is now authorized to operate an industrial vessel repair and maintenance facility at the upland boat storage area and to discharge contaminated stormwater allowed by a National Pollutant Discharge Elimination System ( "NPDES ") permit, and the court agreed with the City that the City is not operating an industrial vessel repair and maintenance facility at the small boat harbor, and that the City is not discharging metals and other pollutants into Resurrection Bay, and that the City is not required to remove the alleged pollutants from the Bay that RBCA alleged to be present but admitted that there was no evidence; and WHEREAS, the court originally held that both parties would bear their own costs and fees in the matter; and WHEREAS, the plaintiffs appealed the matter twice and requested costs and attorney's fees since the outcome of the case required that the City of Seward take action (namely, to apply for a NPDES permit), and plaintiffs alleged that they prevailed on the matter and were, therefore, entitled to costs and fees; and WHEREAS, the United States District Court for the District of Alaska ruled on February 24, 2012 that attorney's fees and costs were to be awarded to RBCA, et al. in the amount of $92,399.13. or approximately 60% of the amount requested by RBCA, and the City is obliged to make such payment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. Funding in the amount of $92,399.13 is hereby appropriated from the Harbor Enterprise Fund Reserves Account 401- 0000 -3050 to Legal Settlement Account 401 - 4370 -5172. Section 2. The City Manager is hereby directed to make payment in the amount of $92,399.13 to RBCA, et al., in Case No. 3:06 -cv- 00224 -RRB, as mandated by the U.S. District Court for the District of Alaska. Section 3. This resolution shall take effect immediately upon its adoption. ice. CITY OF SEWARD, ALASKA RESOLUTION 2012 -036 PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 29 day of May, 2012. THE CITY OF SEWARD, ALASKA AA Da 'd Seawar • , ayor AYES: Valdatta, Bardarson, Keil, Casagranda, Terry, Seaward NOES: Shafer ABSENT: None ABSTAIN: None ATTEST: l if)/ ohanna K t!( ' / City Cle �� a SEj d. ° 14: • i SEAL •• • ���q OF P$.. Council Agenda Statement e s alt. Meeting Date: May 29, 2012 From: James Hunt, City Manager q Agenda Item: Payment of Required Legal Settlement with RBCA et al BACKGROUND & JUSTIFICATION: A lawsuit was filed against the City of Seward ( "City ") in 2008 by the Resurrection Bay Conservation Alliance, et. al ( "RBCA "), alleging contamination by the City, into Resurrection Bay. The plaintiffs did not produce evidence of any kind, supporting the allegations of contamination. However, as a result of that lawsuit, the court determined that the City had 90 days to apply for a NPDES permit, and that both parties would bear their own costs and fees in the matter. (The City had previously attempted to apply for a permit but was informed by EPA that because the City did not conduct boat repairs or otherwise operate an industrial vessel repair and maintenance facility, a permit was not necessary.) However, RBCA appealed the court's ruling and requested costs and attorney's fees since the outcome of the case required that the City of Seward take action (namely, to apply for a NPDES permit). Based on that ruling, RBCA alleged that they were the prevailing party and entitled to recovery of their costs and fees. On February 24, 2012, after two appeals to the Ninth Circuit Court of Appeals, the United States District Court for the District of Alaska amended the decision to require that attorney's fees and costs in the amount of $92,399.13 were to be paid by the City to RBCA. This reflects approximately 60% of the amount RBCA asked the court to order the City to pay. Neither party appealed. The court's ruling is binding on the City of Seward and the City is required to remit this payment. Upon approval of the city manager, payment in the amount of $92,399.13 has been remitted to the Trustees of Alaska as requested by the plaintiff's attorneys, and the administration is seeking the City Council's after - the -fact approval of an appropriation for this purpose. INTENT: The intent of this action is to appropriate funds to pay for a judgment mandated by the U.S. District Court. CONSISTENCY CHECKLIST: Yes No N/A 1. Comprehensive Plan (document source here): -- -- X 2. Strategic Plan (document source here): I - -- — X 3. Other (list): See attached ruling from U.S District Court X ATTORNEY REVIEW: X Yes No FISCAL NOTE: The budget does not include funding for this settlement, so the amount of $92,399.13 will come from the Harbor Enterprise Fund Reserves. Approved by Finance Department: 3 i 4 , _ 1 RECOMMENDATION: City Council authorize after - the -fact approval of an appropriation in the amount of $92,399.13, and payment to Trustees of Alaska, as required by the U.S. District Court. n