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HomeMy WebLinkAboutResolution No. 2016-30Suggested by: Administration CITY OF KENAI RESOLUTION NO. 2016 -30 A RESOLUTION OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AUTHORIZING AN AGREEMENT WITH COPPER RIVER SEAFOODS, INC. TO DISPENSE FUEL AT THE KENAI BOATING FACILITY. WHEREAS, the Public Works Department solicited interested parties to dispense fuel at the Kenai Boating Facility and determined Copper River Seafoods to be the only interested party; and, WHEREAS, Copper River Seafoods, Inc. is currently under contract to operate the cranes on the facility; and, WHEREAS, the agreement will be effective as of June 16, 2016, and in effect for one (1) year, with four (4) one (1) year extensions available upon mutual agreement of the City and Concessionaire; and, WHEREAS, the City's cost to maintain the equipment is approximately $9,500 per year, and will be paid as compensation to the City as part of the agreement; and, WHEREAS, the City of Kenai desires to provide marine fueling service to the public; and, WHEREAS, the recommendation from the City Administration is to enter into an agreement with Copper River Seafoods, Inc.; and, WHEREAS, it is in the best interest of the City to enter into an agreement with Copper River Seafoods, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, as follows: 1. That the City Manager is authorized to enter into an agreement approved as to form by the City Attorney to dispense fuel with Copper River Seafoods, Inc. at the Kenai Boating Facility for an initial term of 1 year with four one year extensions available under the terms approved by the City Attorney. 2. That this resolution takes effect immediately upon passage. PASSED BY THE COUNCIL OF THE CI OF I, AL {A, this 1 th day of June 2016. IPAT PORTER, MAYOR odigh, City Clerk ` by Finance: _ MA IV,2a," mld a Paet U41t p Wir4 a f ew c All-AmericaCily 210 Fidalgo Ave, Kenai, Alaska 99611 -7794 ' r Telephone: (907) 283 -75351 Fax: (907) 283 -3014 http://www.kenai.city 1992 1 2011 MEMO To: Rick Koch, City Manager From: Sean Wedemeyer, Public Works Director AA Date: 6/8/2016 Re: Agreement to dispense fuel The purpose of this memo is to recommend the approval of the agreement to dispense fuel at the Kenai boating facility. I solicited interest by advertising multiple times in the Clarion and ADN newspapers, as well as emailing the advertisement to local fuel suppliers. I was contacted by one other company who was not interested once they knew the average amount of fuel that is dispensed each year at the facility. Scott Bloom, Terry Eubank, and I generated the agreement and have received Copper River Seafoods' agreement to the terms. I recommend approval. Thank you for your consideration. CONCESSION AGREEMENT CITY OF KENAI MARINE FUEL DOCK This Agreement is made this _day of June 2016, by and between the City of Kenai (City), a home rule municipal corporation, whose address is 210 Fidalgo Avenue, Kenai, Alaska 99611, and Copper River Seafoods ( "Concessionaire "), whose address is 1118 E P, Anchorage, AK 99501. RECITALS A. The City owns and operates a public, municipal dock in Kenai, Alaska (City Dock). The City Dock is presently equipped with marine fueling facilities. B. The City desires to contract with an independent party to operate that fueling facility and provide that service to the public. C. The Concessionaire desires to provide marine fueling services at the facilities at the City Dock. D. The parties have reached an agreement on the terms whereby Concessionaire will lease from the City the assets and equipment listed in Exhibit A and Concessionaire shall operate and maintain the fueling facilities at the City Dock as provided by this agreement. E. On XXX, the Kenai City Council adopted a resolution authorizing the City Manager to enter into an agreement with the Concessionaire based upon certain terns and conditions covering operation of the marine fueling facilities at the City Dock. AGREEMENT 1. Premises and Operation of Fueling Facility. (a) Throughout the term of this Agreement, Concessionaire shall operate, manage, maintain, and control the marine refueling operations at the Premises, on the terms set forth in this Agreement. Concessionaire shall have exclusive control of the fueling operations at the Premises, and shall be responsible for maintaining access to the fuel dock and dispensers during Concessionaire's hours of operation. For these purposes City grants to Concessionaire exclusive use of the facilities, equipment, and other assets as listed in Exhibit A. These premises and equipment shall be collectively referred herein to as the "Premises" unless the context clearly indicates otherwise. (b) City hereby grants to Concessionaire, and Concessionaire accepts from City, the non - exclusive use of a portion of the City Dock, including shared space in the City Dock Office. These areas and facilities shall be referred to herein as the Common Areas. (c) Concessionaire acknowledges that Concessionaire has had the opportunity to inspect the Premises and Common Areas to Concessionaire's satisfaction. Concessionaire takes Fuel Dock Concession Agreement G Page 1 of 15 the Premises and the Common Areas AS IS, and represents and agrees that the Premises and Common Areas are suitable for Concessionaire's intended purpose. Concessionaire acknowledges that City has made no warranties regarding the condition of the Premises and Common Areas. Concessionaire accepts all risks associated with the use and operation of the Premises and its own use of the Common Areas and Concessionaire shall be solely responsible for the maintenance, care, protection, and operation of the Premises throughout the initial term and extended terms of this Agreement, except for as provided in the provisions in paragraph 8 of this document. All the Premises and their replacements shall be surrendered to the City at the termination of this Agreement. (d) Concessionaire further acknowledges and agrees that the City Dock on which the Premises are located is a public access area and shall remain open to the public and that the dock shall remain open for use by fuel customers. The Concessionaire may not discriminate in fuel prices provided to public and private customers. Term. This Agreement shall be effective as of June 16, 2016, shall be in effect for one (1) year, with four (4) one (1) year extensions upon mutual agreement of the City and Concessionaire. 2. Compensation to City. (a) For the rights and privileges contained in this Agreement, Concessionaire shall pay to City $9,500 due on July 15 of each year the Agreement is in effect. Checks, bank drafts, or postal money orders shall be made payable to the City of Kenai and delivered to the City Hall, Kenai, Alaska (b) Concessionaire shall pay to City penalty and interest for any late payments of any money due the City under this contract. Penalty due shall be 10% of any sum due and, in addition, Concessionaire shall pay interest on the principal balance due at the rate of 10% per annum from the date due until the date paid. Payments shall be allocated first to penalty, then to unpaid interest accrued, and then to the principal amount due. (c) All books and records maintained by Concessionaire relating to receipts from sales shall be available at all reasonable hours to the inspection of the City and its agents. City shall have the right to audit the books and records of Concessionaire to determine the amount of fuel sold. Concessionaire directs and authorizes any and all of Concessionaire's accountants, bookkeepers, and other agents to furnish City (upon City's request to that supplier) with written any and all documentation reasonably required by City to determine the accuracy of Concessionaire's reporting and payment hereunder. (d) Concessionaire shall keep accurate books and records in accordance with recognized accounting practices concerning all receipts from Concessionaire's sales at City Dock and Premises and for a period of five (5) years following the end of each year of this Agreement. 3. Fuel in Tanks at time of Agreement execution and termination. (a) Concessionaire agrees to inspect the tanks and confirm there is no fuel in either tank at the time of agreement execution. (b) At the end of this agreement Concessionaire will leave no fuel in the tanks unless an agreement is made with the City to purchase the remaining fuel. Fuel Dock Concession Agreement G Page 2 of 15 4. Use of Premises and Common Areas: Commitment to Operate Fueling Facilitv. (a) Concessionaire shall use the Premises under this Agreement for the purpose of storing, pumping and selling marine fuel to the public for use in marine craft at the City Dock, and for the sale, if desired, of related products such as lubricants and other marine products normally sold at marine fueling facilities. Concessionaire shall not use the Premises for any other purpose under this Agreement without the prior written consent of the City, in its sole and absolute discretion. No fuel shall be sold for use in automobiles or in other vehicles and no fuel shall be sold for delivery to premises other than to the City Dock and marine craft based at or visiting the City Dock. Concessionaire may use the Common Areas in furtherance of its obligations under this Agreement. (b) Concessionaire agrees that Concessionaire will not disturb the City or any other tenant of the City by making or permitting any disturbance or any unusual noise, vibration or other condition on or in the Premises or Common Areas. Concessionaire hereby agrees to operate the Premises and use the Common Areas in a professional, respectful manner throughout the term of this Agreement. (c) Concessionaire shall operate fuel dispensing equipment and the Premises, at a minimum, between the hours of 8 a.m. to 4:30 p.m., seven days a week, during May, June, July, and August. Concessionaire shall have at least one type of high quality commonly - used marine fuel will be available to customers continuously throughout the tern of this Agreement, with the exception of temporary closures for such periods as may reasonably be necessary for repairs or for reasons beyond Concessionaire's reasonable control. (d) Concessionaire shall provide City with emergency contact number(s). Concessionaire shall not change its regular hours of operation, on -call contact number(s), or emergency contact number(s), without prior notice to and approval of City, which approval shall not be unreasonably withheld. (e) Concessionaire acknowledges that the continuous availability of marine fuel at the City Dock is a service of paramount importance to City. Concessionaire agrees that if Concessionaire fails to maintain the continuous availability of fuel, or allows any unauthorized interruption in the operation of the fueling facility, City may immediately terminate this Agreement. Although this Agreement grants Concessionaire the right to use certain areas immediately surrounding the fueling facility (Common Areas and general public access areas), Concessionaire recognizes that use is non- exclusive, and Concessionaire shall share the use of those areas with all customers at the City Dock and with City. Concessionaire and its customers shall have access to all docks, parking areas, and the area around the fueling facilities in common with other persons using the City Dock, for the purpose of refueling marine craft and carrying out the purposes of this Agreement. City will, however, designate one parking space in a parking lot proximate to the Premises for Concessionaire's employee. 5. Utilities. City shall be liable for, and shall pay throughout the term of this Agreement, charges for utility services attributable to and necessary for the operation the fueling facilities. Fuel Dock Concession Agreement G Page 3 of 15 Concessionaire waives any claim and holds City harmless for damages that may arise out of or result from any failure or interruption of utility services furnished by or through the City that includes, but not limited to, stoppage in electrical energy, phone service, space heating, or the failure or interruption of any public convenience. 6. Surrender of Premises at Termination of Agreement. At the expiration or earlier termination of this Agreement, Concessionaire shall return the Premises to the City in the same condition in which received (or, if altered by Concessionaire with the City's consent, then the Premises shall be returned in such altered condition), reasonable wear and tear and damage by fire or unavoidable casualty excepted. 7. Maintenance and Repair. The City at its own expense shall maintain the fuel pumps, hoses, hose reel, and nozzles. The Concessionaire shall operate /utilize the fuel tanks, pump control system, pipelines, leak detection system, along with the structure and flotation of the fuel dock and fuel shack, and the exterior of the fuel shack, in a manner consistent with best operational practices. Concessionaire, at its own expense, shall at all times keep the area around the fueling facility and the Premises, and area adjoining the fuel dock, in a neat, clean, presentable, and in a safe and sanitary condition, free of trash and debris, and shall maintain and keep the interior of the fuel shack, and point of sale registers in a good state of repair, and shall commit no waste of any kind. Concessionaire acknowledges that it is the policy of the City to keep the Premises, Common Areas, and the other areas of the City Dock in a neat and orderly appearance. Concessionaire shall endeavor to preserve such an appearance in the Premises, Common Areas, and in the vicinity of the fueling facilities. 8. Alterations and Improvements. Notwithstanding the obligation to inspect, maintain, repair and/or replace as outlined in paragraph 8 of this Agreement, Concessionaire shall not make permanent alterations or improvements to or upon the Premises or install any fixtures or equipment (other than trade fixtures or equipment that can be removed without injury to the Premises) without first obtaining written approval from the Kenai City Manager, which approval shall not be unreasonably withheld. Such written approval shall also include agreement regarding disposition of the improvements upon termination of this Agreement. 9. Sims. No signs or other advertising matter, symbols, canopies or awnings shall be attached to or placed on the Premises without the approval of the Kenai City Manager which shall not be unreasonably withheld. At the termination or sooner expiration of this Agreement, all such signs, advertising matter and symbols shall be removed by Concessionaire at Concessionaire's own expense. Concessionaire shall repair any damage or injury to the Premises, and correct any unsightly condition, caused by the maintenance and removal of said signs, etcetera. 10. Inspection. City reserves the right to inspect the Premises at any and all reasonable times throughout the term of this Agreement; provided that it shall not interfere unduly with Concessionaire's operations. This right of inspection reserved to City shall impose no obligation on City to make inspections to ascertain the condition of the Premises, and shall impose no liability upon City for failure to make such inspections. Fuel Dock Concession Agreement G Page 4 of 15 11. Possession. If City shall be unable for any reason to deliver possession of the Premises, or any portion thereof, at the time of the commencement of the tern of this Agreement, the City shall not be liable for any damage caused thereby to Concessionaire, nor shall this Agreement thereby become void or voidable, nor shall the term specified herein be in any way extended, but in such event Concessionaire shall not be liable for any payment hereunder until such time as City can deliver possession. If City shall be unable to deliver possession of the Premises at the commencement of the term of this Agreement, Concessionaire shall have the option to terminate this Agreement by at least 30 days written notice, unless City shall deliver possession of the Premises prior to the effective date of termination specified in such notice. If Concessionaire shall, with City's consent, take possession of all or any part of the Premises prior to the commencement of the term of this Agreement, all of the terms and conditions of this Agreement shall immediately become applicable. 12. Damage or Destruction. If the Premises or Common Areas are partially destroyed in a manner that prevents the conducting of Concessionaire's use of the Premises or Common Areas in a normal manner, and if the damage is reasonably repairable within 30 days after the occurrence of the destruction, and if the cost of repairs is less than $15,000, City shall repair the Premises and/or Common Areas. Further, if the City is prevented from repairing the damage by forces beyond City's control, this Agreement shall terminate upon 30 days' written notice of such event or condition by either party and the payments due under the contract shall be prorated on an equal monthly basis. 13. Easements and Access. The Parties recognize that City's facilities are continuously being modified to improve the utilities and services used and provided by the City. City, or its agents, shall have the right to enter the Premises, and to cross over, construct, move, reconstruct, rearrange, alter, maintain, repair and operate the sewer, water, and drainage lines, and the electrical service, and all other services required by the City for its use. City is hereby granted a continuous easement or easements that the City believes is necessary within the Premises, without any additional cost to the City for the purposes expressed hereinabove. City shall have the right to relocate the Premises and fueling facility, provided that the City pays all the costs of relocation. The City reserves the right to enter the Premises and Common Areas to repair, replace, alter, install or maintain any mechanical, electrical, plumbing, heating, cooling, ventilation, fire protection, telecommunication, or other system necessary to the proper functioning of the City Dock and other City facilities without liability to the Concessionaire for any damage to the Premises. As a result of any entry under section, the City is liable only for its own negligence and for returning the Premises to its former condition using standard materials. Any City repair, replacement, alteration, installation, or maintenance will not unreasonably interfere with the Concessionaire's use of the Premises. Nothing in this section in any way relieves the Concessionaire of any obligation to maintain the Premises. 14. Indemnification. Concessionaire agrees to indemnify, hold harmless, and defend City, its officers, employees, and agents, from and against any and all losses, claims, Fuel Dock Concession Agreement G Page 5 of 15 liabilities, and expenses (including costs and reasonable, actual attorney fees, if any) arising out of or as a result of any condition (including existing or future defects in the Premises) of the Premises and/or any occurrence whatsoever related in any way to Concessionaire's occupation or use of the Premises or Common Areas or to Concessionaire's operation of the fueling facility at City Dock, and whether any said losses, claims, liabilities or expenses are for damage to property or for personal or bodily injury or death. The City, its officers, employees and agents shall not be liable for any injury (including death) to any persons or for damage to any property, regardless of how such injury or damage be caused, sustained, or alleged to have been sustained. 15. Insurance. Concessionaire agrees to maintain, throughout the term of this Agreement and any extension thereof, liability insurance as follows, at Concessionaire's sole expense. All policies or endorsements thereto shall in all cases where possible name City as Additional Named Insured there under and shall contain a waiver of subrogation against the City. All insurance shall be by a company /corporation currently rated "A - "or better by A.M. Best. (a) Comprehensive General Liability Insurance against claims for injury or death to persons or damage to property with minimum limits of liability of $1,000,000 combined single limit for each occurrence. Such insurance shall include but not be limited to bodily injury liability, personal injury liability, property damage liability, broad form property damage liability, contractual liability, and products /completed operations liability. (b) Comprehensive Business Automobile Liability Insurance against claims for injury or death to persons or damage to property with minimum limits of liability of $1,000,000 combined single limit for each occurrence. Such insurance shall include but not be limited to bodily injury liability, property damage liability, hired car liability, and non -owned auto liability. (c) Workers Compensation Insurance as required under the statutory limits of the Alaska Workers Compensation Act as well as all Federal Acts applicable to Concessionaire's operations at the site, (d) Pollution Liability Insurance in the amount of $1,000,000 with coverage including, but not limited to, overfills, spills, and/or other releases of fuels or other petroleum products that may occur into the ground or into the water as a result of fueling operations or handling of fuel or other petroleum products by Concessionaire or its employees, agents, contractors, licensees, or invitees on or about the Premises. Concessionaire agrees to supply City with appropriate evidence to establish (1) that its insurance obligations as herein provided have been met, and (2) that the insurance policy or policies as herein required are not subject to cancellation without at least 30 days' advance written notice to City. Conditions (a), (b), (c), and (d) of above are to be met prior to occupancy. Fuel Dock Concession Agreement G Page 6 of 15 16. Licenses and Taxes. Concessionaire shall obtain all business and other licenses necessary for the business operations contemplated by this Agreement, and shall be liable for, and shall pay throughout the term of this Agreement, all license and excise fees and occupation taxes covering the business conducted on the Premises. Concessionaire shall collect and remit to the appropriate governmental authority all sales taxes applicable to sales made by Concessionaire. Concessionaire shall pay promptly all personal property taxes levied on the Premises (or portion thereof), if any, including, if applicable, all leasehold taxes on the Premises (or portion thereof). 17. Hazardous Substances - Indemnification. (a) The Concessionaire agrees to have properly trained personnel and adequate procedures for safely storing, dispensing, and otherwise handling Hazardous Substances in accordance with all applicable federal, state, and local laws. As used in the Agreement, "Hazardous Substances" includes oil or petroleum fractions; asbestos; polychlorinated biphenyls (PCBs); any substance defined or listed by the State of Alaska or the Environmental Protection Agency as a hazardous substance under Title 46 of the Alaska Statutes or associated regulations or CERCLA, 42 U.S.C. 6901 et seq., or associated regulations; and any substance listed by the U.S. Department of Transportation or Environmental Protection Agency under 33 U.S.C. 1317, 49 C.F.R 172.101 or 40 C.F.R. § 302. (b) The Concessionaire will promptly give City notice of proceedings to abate or settle matters relating to the presence or release of a Hazardous Substance on the Premises. The Concessionaire will allow City to participate in any such proceedings. (c) If Contamination of the Premises or other properties by a Hazardous Substance occurs from the Concessionaire's operations, the Concessionaire shall indemnify, defend, and hold harmless the City from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses, including, but not limited to, sums paid in settlement of claims, attorney's fees, consultant fees, and expert fees, which arise during or after the term of this Agreement as a result of such Contamination. This indemnification of City by Concessionaire includes, but is not limited to, costs incurred in connection with any investigation of the site conditions or any cleanup, remediation, removal, or restorative work required by any federal, state, or local governmental agency because of a Hazardous Substance being present in the soil, freshwater, saltwater or groundwater on or under the Premises or other properties affected by the Contamination. Fuel Dock Concession Agreement G Page 7 of 15 (d) Concessionaire shall strictly comply with all applicable laws, ordinances, and regulations respecting the handling, containment, and cleanup of discharges or releases of oil or Hazardous Substances, including petroleum fractions. In the event of a Hazardous Substance spill on the Premises or on another property due to Concessionaire's operations in furtherance of this Agreement, Concessionaire will immediately notify the City and the Alaska Department of Environmental Conservation and act promptly, at its sole expense, to contain the spill, repair any damage, absorb and clean up the spill area in strict compliance with applicable laws, ordinances, and regulations, and restore the Premises or other property to a condition satisfactory to City and Concessionaire shall otherwise comply with the applicable portions of any environment law. Concessionaire shall further defend, indemnify, and save City harmless from the consequences thereof, including the costs of state or federal remedial or compliance actions, whether informal or formal, all clean up and remediation costs needed to restore the site to its previous condition, and attorney's fees. (e) In addition to any notices required by this contract, Concessionaire will immediately notify and copy City in writing of any of the following events: (i) any permit, enforcement, clean up, lien, removal or other governmental or regulatory action instituted, completed, or threatened pursuant to any Environmental Law: (ii) any claim made or threatened by any person against the Concessionaire or arising from the Concessionaire's operations authorized by this contract, relating to damage, contribution, compensation, or loss or injury resulting from or claiming to result from any Hazardous Substance, in, on, or under the premises; or present in the ground water, fresh water or salt water. (f) Environmental Law is defined in this contract as any applicable federal, state of Alaska or local statue, law, regulation, ordinance, code, permit, order, decision, judgment of any government entity relating to environmental matters, including littering and dumping. 18. Assignment. Concessionaire shall not assign or transfer Concessionaire's rights under this Agreement or any interest therein, nor shall Concessionaire sublet the whole or any part of the Premises, nor shall this Agreement (or any interest hereunder) be assignable or transferable by operation of law or by any process or proceeding of any court, or otherwise, without the written consent of City first had and obtained, in City's sole and absolute discretion. If City shall give its consent to any assignment or transfer, this paragraph shall nevertheless continue in full force and effect and no further assignment shall be made without City's consent. 19. Default. (a) Time is of the essence of this Agreement, and in the event Concessionaire fails to pay any of the charges owing to City at the time and in the manner herein specified, or fails to comply with any of the covenants or agreements herein, City may elect to terminate this Agreement and take possession of the entire Premises, with or without process of law; provided, however, that City shall provide Concessionaire with 10 Fuel Dock Concession Agreement G Page 8 of 15 days' written notice stating the nature of the default in order to permit such default to be remedied by Concessionaire within said 10 -day period. After said period, or sooner in the event there is evidence of waste or wanton destruction of property, City shall have the immediate right of re -entry and may remove all persons and property from the Premises and/or Common Area. (b) If, upon such termination, there remains any personal property of Concessionaire or of any other person upon the Premises, City may, but without the obligation so to do, remove said personal property and hold it for the owners thereof or City may place the same in a public garage or warehouse, all at the expense and risk of the owners thereof, and Concessionaire shall reimburse the City for any expense incurred by the City in connection with such removal and storage. The City shall have the right to sell such stored property, without notice to Concessionaire, after it has been stored for a period of 30 days or more, the proceeds of such sale to be applied first to the cost of such sale, second to the payment of the charges for storage, and third to the payment of any other amounts which may then be due from Concessionaire to the City, and the balance, if any, shall be paid to Concessionaire. (c) Upon default and vacation of the Premises and Common Area City shall purchase the fuel from Concessionaire at the bulk fuel prices effective on the date Concessionaire vacated the Premises and Common Area as would be charged to Concessionaire by Concessionaire's primary fuel supplier, subject to City's right of offset herein. 20. Termination by In the event that City, at its sole discretion, shall require the use of the Premises for any purpose for public or private use in connection with the operation of the business of the City, then this Agreement may be terminated by City by written notice delivered by the City to the Concessionaire 60 or more days before the termination date specified in the notice. City shall purchase the fuel from Concessionaire at the bulk fuel prices effective and as would be charged to Concessionaire by Concessionaire's primary fuel supplier at the end of the notice period, subject to City's right of offset herein. 21. Insolvency. If Concessionaire shall file a petition in bankruptcy, or if Concessionaire shall be adjudged bankrupt or insolvent by any court, or if a receiver of the property of Concessionaire shall be appointed in any proceeding brought by or against Concessionaire, or if Concessionaire shall make an assignment for the benefit of creditors, or if any proceedings shall be commenced to foreclose any mortgage or any other lien on Concessionaire's property maintained on the Premises, City may, at its option, immediately terminate this Agreement. 22. Waiver. The acceptance of payments by City for any period or periods after a default by Concessionaire shalf not be deemed a waiver of such default unless City shall so intend by advising Concessionaire in writing. No waiver by City of any default hereunder by Concessionaire shall be construed to be or act as a waiver of any subsequent default by Concessionaire. Fuel Dock Concession Agreement G Page 9 of 15 23. Surrender of Premises. At the expiration or sooner termination of this Agreement, Concessionaire shall promptly surrender possession of the Premises to the City, and shall deliver to the City all keys, codes, and other personal property necessary for the operation of the Premises. 24. Non - discrimination in Services. Concessionaire agrees that it will not discriminate by segregation or otherwise against any person or persons because of race, creed, color, sex, age, sexual orientation, or national origin in furnishing, or by refusing to furnish, to such person, or persons, the service to be provided by Concessionaire herein provided, including any and all services, privileges, accommodations, and activities provided thereby. It is agreed that the Concessionaire's noncompliance with the provisions of this clause shall constitute a material breach of this Agreement. In the event of such noncompliance, City may take appropriate action to enforce compliance, may terminate this Agreement, or may pursue such other remedies as may be provided by law. 25. Non - discrimination in Employment. Concessionaire covenants and agrees that in all matters pertaining to the performance of this Agreement, Concessionaire shall at all rimes conduct its business in a manner which assures fair, equal and non - discriminatory treatment of all persons without respect to race, creed, color, sex, age, sexual orientation, marital status, or national origin and, in particular: (a) Concessionaire shall maintain open hiring and employment practices and will welcome applications for employment in all positions from qualified individuals who are members of racial or other minorities, and (b) Concessionaire shall comply strictly with all requirements of applicable federal, state, and local laws and/or regulations relating to the establishment of nondiscriminatory requirements in hiring and employment practices and assuring the service of all patrons or customers without discrimination as to any person's race, creed, color, sex, sexual orientation, marital status, or national origin. 26. Advances by the City; Right of Offset. If Concessionaire shall fail to do anything required to be done by it under the terms of this Agreement, City may, at its sole option, do such act or thing on behalf of Concessionaire, and upon notification to Concessionaire of the cost thereof to City, Concessionaire shall promptly pay City the amount of that cost. Concessionaire shall pay interest of 10 percent per annum from the date paid by City until repaid in full by Concessionaire (KMC 1.75.010). Further, any sums that may be due to Concessionaire hereunder from City may be offset by any amounts owed by Concessionaire to City (such as for compensation, utilities, or purchase of fuel at termination of the Agreement). 27. Liens and Encumbrances. Concessionaire shall not have authority to encumber Concessionaire's interest in this Agreement or the Premises or any part thereof without the prior written consent of City, in its sole and absolute discretion. Concessionaire shall not allow any of the Premises to be subject to the liens of other parties and shall Fuel Dock Concession Agreement G Page 10 of 15 promptly discharge any liens that may be claimed against the Premises or any part thereof by any party. Concessionaire's agrees and authorizes any and all of Concessionaire's suppliers to furnish City (upon City's request to that supplier) with written proof of payment of any item and any documentation that may relate to or constitute the basis for a lien on the Premises if not paid. 28. Notices. All notices hereunder may be hand - delivered or mailed. If mailed, they shall be sent first -class mail, postage prepaid to the following respective addresses: To City: Public Works Director City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 Phone 283 -7535 To Concessionaire: Copper River Seafood Attn.: Clancy Niblack 1118 E 51 Anchorage, AK 99501 or to such other respective addresses as either party hereto may hereafter from time to time designate in writing. Notices sent by mail shall be deemed to have been given when properly mailed, and the postmark affixed by the United States Post Office shall be conclusive evidence of the date of mailing, or when hand - delivered to the Premises in the case of Concessionaire (or to its principal) and to the City Manager or the Manager's Assistant at City Hall in the case of City. 29. Claims. Concessionaire shall promptly notify City of any claim, demand, or lawsuit arising out of the Concessionaire's rights granted or the operations authorized under this Agreement. At the City's request, Concessionaire shall cooperate and assist in the investigation and litigation of any claim, demand, or lawsuit that affects the rights granted Concessionaire under this Agreement. 30. Joint and Several Liability. Each and every party who signs this Agreement as Concessionaire, other than in a representative capacity, shall be jointly and severally liable hereunder. 31. No Partnership or Joint Venture Created. This Agreement is not intended to create, and nothing in this Agreement should convey or be construed to create, a joint venture or partnership between City and Concessionaire. No term or provision of this Agreement is intended to be, or shall be, for the benefit of any person, firm, organization, Fuel Dock Concession Agreement G Page 11 of 15 limited liability company, partnership or corporation, nor shall any other person, firm, organization, limited liability company, partnership or corporation have any right or cause of action hereunder. 32. Invalidity of Certain Provisions. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect. 33. Successors in Interest. This Lease shall be binding upon and inure to the benefit of the respective heirs, successors, and approved assigns of the parties hereto. 34. Compliance with City Regulations and All Laws. Concessionaire agrees to comply with all applicable rules and regulations of City pertaining to the Premises and Common Areas, or any part thereof, now in existence or hereafter promulgated, for the general safety and convenience of the City, its various tenants, invitees, licensees and the general public. Concessionaire further agrees to comply with all applicable federal, state, and municipal laws, ordinances, and regulations. 35. Singular /Plural. Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa. Unless the context otherwise indicates, the use of the neuter, masculine, or feminine gender shall include the others as well. 36. Headings. Headings of paragraphs herein are solely for convenience of reference and shall not affect meaning, construction, or effect of this Agreement. 37. Integration and Modification. This Agreement contains the entire agreement of the parties. All negotiations, statements, representations, warranties, and assurances, whether oral or written, which are in any way related to the subject matter of this Agreement or the performance of either party hereto are merged and integrated into the terms of this Agreement. This Agreement may not be modified or amended except by a writing signed by both parties hereto, and any purported amendment or modification is without effect until reduced to a writing signed by both parties. 38. Governing Law; Venue. This Agreement shall be construed and governed by the laws of the State of Alaska and the City of Kenai. Any disputes related to this Agreement shall exclusively be litigated in the courts of the State of Alaska, Third Judicial District, at Kenai. 39. Litigation; Attorney's Fees. In the event that either party commences any legal action or other proceeding to enforce any of the provisions of this Agreement, the prevailing party in such an action or proceeding shall be entitled to an award of all litigation costs, including such sums as the court or courts may adjudge reasonable as attorney's fees in such action or proceedings, including in the trial court, in bankruptcy court, and in any appellate courts. Fuel Dock Concession Agreement G Page 12 of 15 40. Rights and Remedies. No right or remedy herein conferred upon or reserved to each respective party is intended to be exclusive of any other right or remedy. Each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute. 41. Effective Date. This Agreement and all of its terms shall be effective upon the later of XXX and the approval by the Kenai City Council. CITY OF KENAI Rick Koch, City Manager Copper River Seafoods 0 Scott Blake, CEO Copper River Seafoods Its: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of June, 2016, Rick Koch, City Manager, of the City of Kenai, Alaska, being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged the voluntary and authorized execution of the foregoing instrument on behalf of said City. Notary Public for Alaska My Commission Expires: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this _day of June, of June., being personally known to me or having produced satisfactory evidence of identification, appeared before me and acknowledged Fuel Dock Concession Agreement G Page 13 of 15 the voluntary and authorized execution of the foregoing instrument on behalf of said. Notary Public for Alaska My Commission Expires: Approved as to form: Scott Bloom, City Attorney Approved by Finance: Terry Eubank, Finance Director Fuel Dock Concession Agreement G Page 14 of 15 Exhibit A City of Kenai Marine Fuel Dock Concession Agreement 2 (two) 7,500 gallon single wall fuel tanks, resting on stands in a lined containment dike, with a lockable chain -link fence around them. Concessionaire is responsible for locking. Two inch, double -wall pipe from the tanks to the beginning of the trestle Two inch pipe from beginning of the trestle to the fuel dispensers Two Gasboy Atlas fuel dispensers Two each spring loaded retracting hose reels with approximately 80 feet of one inch hose and two nozzles EMCO/Wheaton "Leak.sensor II" leak detection system Two emergency fuel shut -off switches, one located at the beginning of the trestle and the other on the outside of the dock office Office space and 2 parking spaces. Fuel Dock Concession Agreement G Page 15 of 15