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HomeMy WebLinkAboutRes2021-063' CITY OF SEWARD, ALASKA Sponsored by: Bower RESOLUTION 2021-063 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH DIBBLE CREEK ROCK LIMITED FOR ROCK REMOVAL AT THE CITY'S FOURTH OF JULY CREEK ROCK QUARRY WHEREAS, rock removal from the City's Fourth of July rock quarry has previously been sold in two ways: 1) by entering into a management contract agreement with a contractor for quarry activities and sales, and 2) if no management contract is in effect for the site, the fair market sales price is established as stated in Seward City Code 7.25.020; and WHEREAS, on September 22, 2003, the City approved Resolution 2003-99, setting the price of rock extracted from the Fourth of July Creek Quarry at $5.00 per ton, specifically for the East Harbor Expansion Project and also used this price on subsequent other projects; and WHEREAS, reject material in a large pile known as Exhibit A may be an option for use in this project and would help clear out that area of the quarry if priced accordingly; and ' WHEREAS, the director has determined the fair price for material from only Exhibit A is $3.50/ton based on past sales and the State of Alaska royalty price of $3.27/yard; and WHEREAS, Dibble Creek Rock Limited has entered into contract with Alaska Railroad Corporation, and has agreed to provide 45,000 tons of rock for the Alaska Railroad Corporation Ballast Rock Project; and WHEREAS, Dibble Creek Rock Limited has determined that a sufficient quantity of new rock of the quality needed for the project is available at the City's Quarry located on tract "C" of the Fourth ofJuly Creek Tracts, according to plat 84-6, commonly referred to as the Seward Marine Industrial Center (SMIC), whose location is within section 17, TIS, RIE, Seward Meridian (also known as the Fourth of July Creek Quarry); and WHEREAS, the City wishes to enter into an agreement whereby Dibble Creek Rock Limited may extract rock from the quarry for use on the Project without interfering with other potential users of the quarry; and WHEREAS, the City agrees that Dibble Creek Rock Limited may excavate, classify and/or remove 45,000 tons of ballast rock from the quarry to be used by the contractor to fulfill its contractual obligation to provide rock for the Alaska Railroad Corporation Ballast Project, at the Irate to the City of $5.00 per ton (and or $3.50/ton for rock produced from the Exhibit A pile). NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY CITY OF SEWARD, ALASKA RESOLUTION 2021-063 ' OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to enter into an agreement with Dibble Creek Rock Limited, in substantial form as attached hereto and incorporated by reference, for rock removal from the Fourth of July Creek Quarry. Section 2. Notwithstanding the forgoing, the City Manager may make such changes or corrections as needed to finalize the agreement without changing the essential terms and conditions as set out in the attached agreement. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 24' day of May, 2021. Terry, ayor AYES: Osenga, Seese, Baclaan, Casagranda, DeMoss, McClure, NOES: None ABSENT: None ABSTAIN: None ATTEST: 4 Al O'Mc&-g Brenda City Clerk (City • SEAL • OF Agenda Statement Meeting Date: May 24, 2021 To: City Council Through: Janette Bower, City Manager From: Doug Schoessler, Public Works Director Agenda Item: Authorizing the Acting City Manager to Enter into an Agreement with Dibble Creek Rock Limited for 45,000 cubic yards of ballast rock from the City's Fourth of July Quarry for the Alaska Railroad Corporation Ballast Rock Project. BACKGROUND & JUSTIFICATION: The City of Seward's Fourth of July Quarry has rock available to be produced, sorted and classified for use in projects as requested by contractors and agreed to by the City. Dibble Creek Rock Limited, a contractor on the Kenai Peninsula, has determined that a sufficient quantity of ballast rock of the quality grade needed for the Alaska Railroad Corporation Ballast Rock Project is available at the City's Fourth of July Quarry. The City will use past rock sale prices. Quantities will be sold by weight -as -scaled leaving the quarry. The contract is attached to this resolution and has been reviewed by the city attorney. Dibble Creek Rock shall have non-exclusive rights to remove rock from the quarry during the term of this agreement. The City shall have access to the quarry to remove rock as needed in order to respond to any emergency threatening the safety of person or property and that other persons may have nonexclusive rights granted by the City to remove rock from the quarry, now and in the future. INTENT: To enter into an agreement with Dibble Creek Rock Limited for $5.00 per cubic yard and/or that material documented from the unclassified material pile shown on Exhibit A may be removed at the rate of $3.50/ton. Dibble Creek Rock will produce and provide approximately 45,000 tons of ballast rock for Alaska Railroad Corporation project. CONSISTENCY CHECKLIST: Yes No N/A 1. Comprehensive Plan: x 2. Strategic Plan: Pg. x 3. Other: FISCAL NOTE: The General Fund can expect to receive between $157,500 and $225,000 in revenue through this agreement. Revenue will be coded to General Fund Gravel Sales revenue account no. 01000-0000- 4611. "k Approved by Finance Department: �'C ATTORNEY REVIEW: Yes X No Not Applicable. RECOMMENDATION: City Council approve Resolution 2021- authorizing the City Manager to enter into an agreement, in substantial form as presented at this meeting, with Dibble Creek Rock Limited for 45,000 tons of ballast rock from the Quarry for Alaska Railroad Corporation Project. W-] ROCK REMOVAL AGREEMENT CITY OF SEWARD ROCK QUARRY, SMIC This Rock Removal Agreement ("Agreement") is entered into and made effective this 24th day of May 2021 by and between the City of Seward. Alaska ("City") and Dibble Creek Rock Limited an Alaskan Corporation (the "Contractor") (collectively the "Parties"). RECITALS WHEREAS, the Contractor has entered into a contract with the Alaska Railroad Corporation ("ARRC") wherein the Contractor has agreed to provide up to a maximum of 45,000 tons of ballast rock (the "Project"); and WHEREAS, the Contractor has determined that enough new rock of the quality needed for the Project is available at the City's rock quarry located on Tract "C" of the Fourth of July Creek Tracts according to Plat 84-6. commonly referred to as the Seward Marine Industrial Center ("SMIC"), whose location is within Section 1 7, Tl S. RIE- Seward Meridian ("the Quarry"); and WHEREAS, City wishes to enter into an agreement whereby the Contractor may extract rock from the Quarry for use on the Project without interfering with other potential users of the Quarry; and WHEREAS. the City Council has approved this Agreement pursuant to its Resolution No. 2021- ; NOW THEREFORE, in consideration of the mutual covenants and obligations contained herein the Parties hereby memorialize their agreement. CONTRACT PROVISIONS 1. Contracting; Officer. The Contracting Officer shall be the City Manager who is authorized to interpret this Agreement on behalf of the City and authorize minor amendments consistent with the intent of this Agreement. The Contracting Officer hereby authorizes the City's Director or Public Works to make day to day decisions on grounds consistent with the terms of this Agreement. 2. Removal of Rock. City agrees that the Contractor may excavate, classify and/or remove up to 42,000 tons of rock from the Quarry to be used by the Contractor to fulfill its contractual obligations to provide rock to the Project and for no other purpose. The Contractor shall, at its own expense and risk, perform all site preparation, blasting, sorting, removal, and transportation operations (the "Work") necessary to remove the rock. To the extent practicable and upon mutual agreement of the Contracting Officer, the Contractor may remove the rock necessary for the Project from the unclassified material pile shown on Exhibit A attached hereto. All right, title, and interest in or to the rock remains with the city until the material has been MIN loaded, determined as to volume or weight, removed from the site, and paid for in compliance with this Agreement. Rock which is not removed from the Quarry and paid for by the Contractor within the period specified by this Agreement remains the property of the City. 3. Condition of the Quarry/Performance Bond. The City makes no representations or warranties, express or implied, as to the condition of the Quarry or the existence, accessibility, quantity, quality, or nature of any rock or other materials therein. The Contractor agrees to utilize the Quarry in an "as -is" condition. Upon completion of its Work, the Contractor shall restore the Quarry and the quarry access roads to the same condition or better as exists at the time of commencement of the Contractor's Work. Prior to commencing work, the Contractor shall obtain a performance bond in an amount of at least twenty thousand dollars ($20,000) for the benefit of the City for use in completing any unfinished obligations, including restoring the Quarry or access roads. Payment of the principal amount of the bond to the City shall not limit the Contractor's liability or restoration obligations. 4. Compensation. City will be reimbursed for rock removed from the Quarry at the rate o£ $5.00/ton. Material documented from the unclassified material pile shown on Exhibit A may be removed at the rate of $3.50/ton, Reimbursement shall be on or before the first day of each month, without demand or notice from the City. Payments which are more than 30 days past due shall accrue interest at the rate of .75% per month. Notwithstanding the above, the Contractor shall be in default of this Agreement if any payment is not made when due. The Contractor shall also pay all such applicable fees or charges as set forth in the City of Seward Terminal Tariff or other applicable City schedule of fees and charges as amended from time to time. All payments shall be accompanied by a monthly report of rock removed, in accordance with paragraph 5. 5. Measurement of Rock Removed from Quarry. Measurement of the quantity of rock removed from the Quarry will be by weight as measured for each truckload of rock removed from the Quarry and shall be verified by copies of invoices submitted by the Contractor to ARRC. The Contractor shall be responsible for the weigh scales, State of Alaska certification, obtaining services of, and for all costs associated with retaining and utilizing, a qualified person to determine the tonnage actually removed from the Quarry; such person shall be subject to approval by the City, which approval shall not be unreasonably withheld. 6. Commencement of Work/Inspection by City. Subject to obtaining the performance bond as described in paragraph 3, the insurance described in paragraph 7, and the permits in paragraph 12, the Contractor is authorized to commence work immediately, and continue until either its contractual obligations to provide rock to the Project have been completed or October 15, 2021, whichever comes first. City has the right but not the obligation to enter the Quarry for purposes of inspection of Contractor's operations at all reasonable times during the term of this Agreement. 7. Insurance. The Contractor shall provide workers' compensation insurance at statutory limits, general liability and contractual liability insurance in the amount of two million dollars ($2,000,000) per occurrence, and comprehensive automobile liability insurance (covering Mr.] bodily injury and property damage including all owned, hired, and non -owned vehicles) in the amount of one million dollars ($1,000,000) per occurrence, with the City named as an additional insured. If blasting to produce additional material, coverage under such insurance shall also include an explosives extension covering explosion, collapse and underground property damage hazards. City shall be provided certificates of all such insurance prior to removal of Rock under the terms of this Agreement. Such insurance shall include a waiver of subrogation and shall provide that City shall be given thirty (30) days' notice prior to any cancellation, termination, or non -renewal of the policy. Contractor shall not permit any vehicle in the Quarry that is not insured as required by this paragraph. 8. Indemnification. The Contactor agrees to indemnify, defend, and hold harmless City (including its employees, officers, insurers, and agents) from any and all claims, liabilities, causes of action, and demands, of any character or nature whatsoever, arising in favor of third parties and arising out or of relating to this Agreement or the performance of any Work or obligations hereunder. 9. Records. The Contractor shall keep accurate records of the weight of rock removed from the Quarry for shipment to the Project. City shall have the right to audit the Contractor's records concerning the volume and weight of rock removed from the Quarry. 10. No Assi ng ment. The Contractor may not assign its rights and benefits under this Agreement without the express prior consent of the City Council for the City. Any attempt at such assignment without such consent shall be a default of this Agreement. 11. Non -Exclusive Rights. The Contractor shall have non-exclusive rights to remove Rock from the Quarry during the term of this Agreement. This Agreement shall not be construed as giving the Contractor (a) the right to remove Rock from the Quarry for any other purpose other than for use in fulfilling its contractual obligation to provide rock to the Project, (b) the right to remove any materials other than the rock as described in Section 2 of this Agreement, (c) any rights to access or utilize the Quarry following expiration of this Agreement, (d) the right to remove rock in any way contrary to instructions, if any, requested by the Contracting Officer, or (e) any other rights whatsoever except as expressly granted by this Agreement. The City shall have access to the Quarry to remove rock as needed to respond to any emergency threatening the safety of persons or property. The Contractor acknowledges that other persons may have or be given nonexclusive rights granted by the City to remove rock from the Quarry, and the Contractor expressly agrees to take all actions necessary (1) to avoid interfering with their activities and (2) to promote safety within the Quarry. 12. Permits/Compliance with Law. The Contractor shall obtain, at its own expense, all necessary permits, rights -of -ways, or other consents from all governmental agencies and shall comply with all applicable federal, state, and local laws, statutes, regulations, and ordinances, including but not limited to Chapters 7.25 and 11.25 and Section 9.15.310 of the Seward Code of Ordinances. The Contractor's authorization to remove Rock from the Quarry is conditioned upon the Contractor's prior receipt of required permits and certifications. MR] 13. Amendment. This Agreement may be amended, modified, or extended at any time by mutual agreement of the Parties, but any such amendment must be in writing, dated, signed by the Parties, and attached hereto. 14. Choice of Law and Venue. The Parties agree that this Agreement shall be governed by the laws of the State of Alaska, and venue for any dispute shall be in Seward, Alaska. 15. Remedies Upon Default. The City shall have the right, but not the obligation, to terminate this Agreement following 24 hours written notice of default to the Contractor. The Contractor shall have the right to cure such default within the notice period and thereby avoid termination, provided that no other default and cure has occurred. Notwithstanding termination, the City retains its rights to be reimbursed for all rock removed at a rate of 55.00/ton, up to and including the date of termination, and all other remedies available at law or equity. Paragraphs 3, 4, 7, 8, 15 and 17 shall survive termination. 16. Entire Agreement. This Agreement contains the entire understanding and agreement between the Parties with respect to this subject. There are no other written or oral understandings or promises between the Parties with respect to the subject matter of this Agreement other than those contained herein, and any prior oral or written understandings are hereby extinguished. 17. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms or conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. IN WITNESS WHEREOF the Parties hereto have executed this Agreement, the day and year first above written. Attest: Brenda Ballou MMC City Clerk DIBBLE EK ROC IMITED X. A� Print- By: CITY OF SEWARD City Manager Janette Bower 120