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90-23 Olsen Enterprises, Inc. dba Island Provider Freight Company - EVOS Village Oily Debris Pick-upC9a-~~ 1 ., ., ~ ~ n ~. .7 ~~~. Kodiak Island Borough r'. MEMORANDUM TO: Honorable Assembly Members FROM: Jerome M. Selby, Mayor ~~ DATE: November 29, 1990 RE: Village Oily Debris Pick-up We have obtained a quote from Island Provider Freight Company to travel to the six villages and pick up the oily debris collected under the DEC contract this past year. There are 10-20 tons of bagged material to be transported to Kodiak and temporarily stored in a twenty foot Samson van box. ChemWaste Management Company of Anchorage will assume responsibility for the material upon its arrival in Kodiak and will ship it south by Samson Tug and Barge or by Sealand as soon as they can complete arrangements. ChemWaste has a contract with DEC to dispose of this material. Funding for the Island Provider pick-up will come from the remaining DEC grant funds. Staff recommends approval of a contract with Island Provider Freight Company for pick up of the oily debris from the six villages and delivery to Kodiak at a rate of $1,500 per day plus fuel cost for not more than 10 days and not to exceed $19,000.00 (I ~.~ ~~ i..` j ) KODIAK ISLAND BOROUGH 710 MILL BAY ROAD KODIAK, ALASKA 99615 THIS AGREEMENT is made and entered into by and between the KODIAK ISLAND BOROUGH, hereinafter "KIB" and Olsen Enterprises, Inc. dba Island Provider Transportation Company, Inc., hereinafter "Contractor", in consideration of the mutual promises contained herein and shall be effective on the day, month, and year last herein specified. WHEREAS, the KIB administered a grant from the Alaska Department of Environmental Conservation for adequate and satisfactory cleanup of the Exxon Valdez oil spill. WHEREAS, Exxon Company, U.S.A. and its agents refused to retrieve and transport the oil, oiled debris and oil saturated cleaning supplies recovered by KIB and the Kodiak Island Villages while working under the D.E.C. grant. WHEREAS, the Kodiak Island Villages have requested that KIB remove the recovered oil, oiled debris and oil saturated cleaning supplies from their villages because of concern for health and additional contamination. WHEREAS, the KIB wishes and is authorized to contract for the transportation of recovered Exxon Valdez oil, oiled debris and oil saturated cleaning supplies from the Kodiak Island Villages to the town of Kodiak. WHEREAS, the Contractor desires to provide said services to the KIB. NOW, THEREFORE, the parties hereto covenant and agree as follows. ARTICLE 1 CONTRACTOR'S SERVICES AND RESPONSIBILITIES 1.1 Employment of Contractor. The Contractor hereby agrees to use the vessel "Ain't Easy"or the vessel "Lady Nina" to travel to the villages of Port Lions, Ouzinkie, Larsen Bay, Karluk, Old Harbor and Akhiok. At each village the Contractor is to take aboard the vessel "Ain't Easy" or the vessel "Lady Nina" all The Contractor further agrees to transport this oil and these oiled materials to the LASH dock in Kodiak. 1.2 Scope of Services. The Contractor is to assist in the loading and unloading of the oil and oiled material at each Village and at the LASH dock in Kodiak. 1.3 Notice. Contractor is to give telephonic or written notice of estimated time of arrival to Wayne Coleman of KIB at least twenty four (24) hours prior to arrival at any village. Within 72 hours of any breakdown of the vessel "Ain't Easy" or the vessel "Lady Nina" her tackle or equipment, Contractor shall notify Wayne Coleman of KIB as to the nature of the breakdown and the estimated time for repairs. Contractor is to give Wayne Coleman of KIB timely notice of weather delays. 1.4 Time of Performance. The Contractor shall perform the services herein described within thirty (30) days from the date of this contract. This time period may from time to time be extended upon mutual written consent of the parties. Adverse weather, mechanical breakdowns, or any other delays will not automatically extend the time of performance. Failure to perform within the specified thirty (30) day period may result in compensation reduction. 1.5 Importance of Completion. Completion of Contractor's pickup from all of the villages is the essence of this agreement. Contractor shall use best efforts to complete the pickup of oil and oiled materials from all of the villages within the time frame of this contract. Contractor is to obtain signature of each village's mayor, or "person in charge" designated by KIB, on "ATTACHMENT A" of this agreement indicating that oil, oiled debris, and oiled cleaning materials resulting from the village's clean up activities related to the Exxon Valdez oil spill have been totally and completely removed by Contractor from the village. ARTICLE 2 KIB'S RESPONSIBILITIES 2.1 Packaging. KIB will arrange to have all oil and oiled material "double bagged" in preparation for Contractor's loading, transport and unloading. 2.1 Loading Assistance. KIB will arrange for laborers to be available in each village and at the LASH dock in Kodiak to assist Contractor in the loading and unloading of the oil and oiled materials onto the vessel "Ain't Easy" or the Vessel "Lady Nina." 2.2 Volume Estimates. KIB shall inform contractor of approximate volume and weight of oil and oiled material in each village. ARTICLE 3 COMPENSATION AND METHOD OF PAYMENT 3.1 Compensation. It is expressly understood and agreed that the compensation to be paid to the Contractor shall be a fixed price amount of Nineteen Thousand Dollars ($19,000). Such sum C-2 , ~~ -1 ^ ~ ~ shall constitute full and complete compensation for Contractor's services. 3.2 Method of Payment. Upon full and satisfactory completion of the contract, Contractor shall submit to KIB a billing invoice for the compensation amount. KIB will pay the invoice in the course of its regular accounting cycle for such payments. However, Payment will only be made upon completion of all of contractor's services and responsibilities described herein Partial performance does not entitle contractor to partial 3.3 Liquidated Damages. Should contractor be unable, within the 30 day period specified above or any extension thereof, to fully and completely perform the services and responsibilities herein described, KIB, at its option, may reduce the compensation amount paid to Contractor by Five Hundred Dollars ($500.) per day for each add every day any portion of the contract remains unperformed. This sum is fixed and agreed upon between the parties as liquidated damages in lieu of the difficulty of estimating the damages which the owner will suffer by the failure of the Contractor to perform its services and responsibilities within the time aarear3 nn~n_ ARTICLE 4 INSURANCE 4.1 Hull and Machinery Insurance. Contractor shall furnish and maintain during the term of this charter, hull and machinery insurance on the vessel "Ain't Easy" or the vessel "Lady Nina" in the amount of One Hundred Thousand Dollars ($100,000). Hull and machinery insurance shall include pollution coverage in the amount of One Million Dollars ($1,000,000). 4.2 Protection and indemnity Insurance. Contractor shall furnish and maintain during the term of this contract, Contractor's liability and protection and indemnity insurance coverage on the vessel "Ain't Easy" or the vessel "Lady Nina" in the amount of Five Hundred Thousand Dollars ($500,000) per crewman. 4.3 Breach of Warranty Insurance. Contractor shall furnish and maintain during the term of this charter, Breach of Warranty insurance on the Vessel "Ain't Easy" or the vessel "Lady Nina" in the amount of One Hundred Thousand Dollars ($100,000). ARTICLE 5 INDEMNITY 5.1 Indemnity. Contractor shall forever protect, save and keep KIB its agents, officers and employees, harmless and indemnify them against and from any and all claims, demands, losses, costs, C-3 _~ i damages, suits, judgments, penalties, expenses, and liabilities of any kind or nature whatsoever, including without limitation, pollution liability, arising directly or indirectly out of or in connection with the operation of the vessel "Ain't Easy" or the vessel "Lady Nina" and the performance of this agreement, ARTICLE 6 LIMITATION OF WARRANTY 6.1 Limitation of Warranty. KIB does not warrant the seaworthiness of the vessel "Ain't Easy" or the vessel "Lady Nina" and does not make any representation, warranty or covenant, express or implied, with respect to the condition, quality, durability or suitability for Contractor's intended use of the vessel "Ain't Easy" or the vessel "Lady Nina." KIB will not be liable for any liability, loss or damage caused or alleged to be caused directly or indirectly, by the vessel "Ain't Easy or the vessel "Lady Nina", by any inadequacy thereof, defect thereon, or by any incident in connection therewith. ARTICLE 7 NONDISCRIMINATION 7.1 Compliance with Law. The Contractor shall comply with all applicable federal, state and municipal laws concerning the prohibition of discrimination. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, age, sex, or marital status or mental or physical handicap. The Contractor will take affirmative action to ensure that employees are treated during employment without regard to their race, color, religion or mental or physical handicap. Such action shall include, without limitation, employment, upgrading, demotion or transfer, recruitment or recruiting advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 7.2 Reporting Requirements. The Contractor shall comply with any and all reporting requirements that may be imposed by KIB because of Equal Employment Opportunity policies, requirements and provisions. ARTICLE 8 TERMINATION 8.1 Without Cause. This contract may be terminated by mutual consent of the parties without cause. 8.2 With Cause. This contract may be terminated for cause by either party where the other party fails in any material way to perform its obligations under this contract. Incomplete performance by Contractor within 45 days of the date of the C-4 contract constitutes a material breach. ARTICLE 9 PAYMENT ON TERMINATION 9.1 Compensation Reduction. If the contract is terminated with cause the Contractor shall not be entitled to receive any compensation until KIB has had another agent preform the services and responsibilities of the contract. If the unpaid balance of the Contract exceeds KIB's direct and indirect costs of completing the contract, including compensation £or additional professional services, such excess shall be paid to the Contractor as full and complete compensation. if KIB's direct and indirect costs of completing the contract exceed the unpaid balance of the Contract, the Contractor will pay the balance to KIB. KIB's direct and indirect costs of completing the contract, including compensation for additional professional services, will be determined according to generally accepted accounting principles. ARTICLE 10 CHOICE OF LAW 10.1 Jurisdiction. Any civil action rising from this contract shall be brought and maintained in the Superior Court for the Third Judicial District of the State of Alaska at Kodiak. The law of the State of Alaska shall govern the rights and obligations of the parties under this contract. ARTICLE 11 ASSIGNMENT 11.1 Assignment. Contractor will not assign or sub-contract its duties and responsibilities under the contract without prior written consent of KIB, which consent may be withheld at KIB's sole discretion. ARTICLE 12 DRAFTING PROVISIONS 12.1 independent Covenants. Each and every covenant in this agreement is independent of the other, and a breach of a single covenant herein constitutes a breach of this agreement. The waiver of any breach or condition of this agreement by KIB does not constitute a waiver of any other portion thereof or of any subsequent breach of the same condition or covenant. 12.2 Final agreement. This writing is adopted by all parties hereto as the complete, exclusive and final statement of the terms of their agreement. 12.3 Invalid Provision The invalidity or unenforceability of C-5 ~, a any particular provision of this agreement shall not affect any other provisions hereof, and this agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted. 12.4 Headings. The headings of paragraphs of this agreement are inserted for convenience only and shall not constitute a part hereof. ARTICLE 13 NOTICES 13.1 Telephonic or Written Notice. Notice as to estimated time of arrival, mechanical or weather delays may be given by telephone or in writing. 13.2 Written Notice Only. Any other notice shall be given by mailing, certified with return receipt, such notice to the business address of the parties or at such other addresses as the parties may later designate in writing. ARTICLE 14 LEGAL REPRESENTATION 14.1 KIB's Representative. Contractor and KIB expressly understand and acknowledge that the law firm of JAMIN, EBELL, BOLGER & GENTRY selected by the KIB to draft this agreement and advise KIB in regard to this transaction, represents KIB and KIB's interest exclusively. Contractor further acknowledges that he has been advised to seek independent assistance of counsel regarding this transaction, and by executing this agreement he acknowledges that he has either sought independent assistance of counsel regarding this transaction or has elected to proceed with this transaction without independent assistance of counsel. IN WITNESS WHEREOF, the parties have executed this agreement the ~~day of January, 1991. i~a.~i ~ 0~.~ Mark Olsen, Manager, Olsen Enterprises, Inc. Jero Selby, Mayor, K Island Borough Attest ~(fy1.11GL~ try o~ I- aye Vaughan, Borough ler C-6 ATTACHMENT A I HEREBY CERTIFY THAT OLSEN ENTERPRISES, INC. WITH THE VESSEL "AIN'T EASY" OR THE VESSEL "LADY NINA" HAS RECOVERED FROM MY VILLAGE AND LOADED ABOARD THEIR VESSEL ALL OIL, OILED DEBRIS, AND OILED CLEANING MATERIALS RESULTING FROM MY VILLAGE'S CLEANUP ACTIVITIES RELATED TO THE EXXON VALDEZ OIL SPILL. I FURTHER CERTIFY THAT 2 HAVE DILIGENTLY SEARCHED MY VILLAGE AND THAT THERE IS NO ADDITIONAL OIL, OILED DEBRIS, OR OILED CLEANING MATERIALS FROM MY VILLAGE'S CLEAN UP ACTIVITIES RELATED TO THE EXXON VALDEZ OIL SPILL STILL LOCATED IN MY VILLAGE. Mayor or Designee, Old Harbor Mayor or Designee, Port Lions Mayor or Designee, Larsen Bay Mayor or Designee, Akhiok Mayor or Designee, Ouzinkie Mayor or Designee, Karluk C-7