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HomeMy WebLinkAboutResolution No. 2019-45Kenai Visitor and Cultural Center Agreement Page 1 of 15 AGREEMENT FOR FACILITY MANAGEMENT SERVICES AT THE KENAI VISITOR AND CULTURAL CENTER FACILITY THIS AGREEMENT is made this ____ day of _______________ 2019, by and between the CITY OF KENAI (Owner), whose address is 210 Fidalgo Avenue, Kenai, AK 99611-7794, and Kenai Chamber of Commerce and Visitor Center, Inc. (Contractor), whose address is 11471 Kenai Spur Highway, Kenai AK, 99611. RECITALS: Owner desires to retain the professional services of Contractor to manage the Kenai Visitor and Cultural Center located at 11471 Kenai Spur Highway in the City of Kenai. Contractor is a professional in this area and specifically in the provision of visitor services to the public and has the experience, skill, knowledge, and competence to perform these services. Owner wants to contract for the provision of these services by Contractor in order to obtain best financial arrangements for the City and provide affordable and quality experiences for its residents and Facility users. Contractor agrees to perform its services under this Agreement with due diligence and due care and in a good and professional manner. Owner and Contractor therefore agree as follows: 1. Definitions. For this Agreement, the following definitions apply: A. “Manager” means the Kenai City Manager or their designee as agent for and on behalf of Kenai. B. “Concession” means all sales or rentals of goods or services in the Facility, including retail sales, the parts of the Facility where those sales or rentals are made, and equipment or facilities in the Facility used for those sales or rentals. C. “Contractor” shall mean Kenai Chamber of Commerce and Visitor Center, Inc. D. “Council” means the Kenai City Council. E. “Facility” means the Kenai Visitor and Cultural Center located at 11471 Kenai Spur Highway in Kenai, Alaska. F. “Management” or “management services” means performing all work to operate and provide the services and reports required by this Agreement and all work Kenai Visitor and Cultural Center Agreement Page 2 of 15 necessary to support the Facility’s provision of service to the public, including but not limited to, supervision of staff, supervision and control of participants using the Facility and accessing any programs at the Facility, keeping the Facility in a clean and sanitary condition, managing and maintaining displays of the permanent collection at the Facility, scheduling use of the Facility, encouraging activities and programs at the Facility, and charging City-approved fees and rent for portions of the Facility upon written consent, as well as selling merchandise at the Facility. G. “Owner” or “City” means the City of Kenai. 2. Term. The term of this Agreement shall begin on ______________ (date), and end on ______________ (date). Neither party has any obligation to agree to extend the initial term of this Agreement. 3. Compensation. A. Owner shall pay Contractor a fee of $______________ per month for management of the Facility for the term of this Agreement. Owner will pay the fee in equal monthly installments, payable within fourteen (14) days after billing by Contractor. Any compensation due for portions of a month for which services are provided by Contractor will be pro-rated to a daily rate. B. Except as may otherwise be stated in this Agreement, Owner will not provide any additional compensation, payment, service, or other thing of value to Contractor in connection with performance of its obligations under this Agreement. Contractor’s overhead and other indirect or direct costs Contractor may incur in performing its obligations under this Agreement have already been included in computation of Contractor's fee and may not be separately charged to the Owner. C. Subject to Appropriation. Contractor recognizes that compensation for its management services require the Council to annually appropriate funds for payment of the management services. The obligation of Owner to provide funding under this Agreement is subject to the availability of funds lawfully appropriated for that purpose by the Council. The termination of this Agreement due to fiscal necessity and/or non- appropriation of funds by Owner shall not constitute a breach or default of Owner. In the event of a non-appropriation of funds, Owner may terminate this Agreement under Section 16(B), below, however termination shall not be subject to sixty (60) days’ notice. Instead, Owner shall give reasonable advance notice of non-appropriation as soon as practicable but in no case shall notice be less than ten days in advance of the effective termination date. 4. Independent Contractor; No Agency. Contractor’s relationship with Owner shall be that of an independent contractor with the authority to control and direct the performance of the details of the management services that are the subject of this Agreement. Nothing contained in this Agreement shall be construed to create an agency, Kenai Visitor and Cultural Center Agreement Page 3 of 15 partnership, joint venture, or employee-employer relationship between Owner and Contractor. Contractor is not the agent of Owner and Contractor is not authorized to make any representation, contract, or commitment on behalf of Owner. 5. Scope of Services—General Obligations of Contractor. A. Operations. Contractor shall perform the management work and all services on an as needed/scheduled basis as determined by Contractor (except where specifically identified below). B. Services. Contractor agrees to make the Facility available to community user groups and/or organizations in order to serve the varied interests and needs of the community. C. Concessions. Contractor may provide, at its own expense, business, educational, cultural, or other services to the general public that are not inconsistent with this Agreement. Contractor shall have the exclusive right to operate concessions, including retail sales, in the Facility. Contractor is responsible for defining said services and coordinating all aspects of service offerings, whether required under this Agreement or offered as an additional concession of Contractor. D. Fees. Contractor may charge a fee approved by the City for use of the Facility and/or for participation in any programs and/or services it provides unless otherwise specified in this Agreement. Any fees charged by Contractor for any purpose must not discourage public use of the Facility and should be consistent with fees charged for similar services at other facilities. E. Public Facility. The programs provided in the Facility must be generally available to the public. Contractor may not restrict appropriate public participation at the Facility and may not restrict public access for appropriate use of the Facility. F. Employees. It is Contractor’s duty to train Contractor’s employees in order to provide the management services. The management services shall be performed by qualified, careful, and efficient employees in strict conformity with the best practices and highest applicable standards. The manner in which these services are performed shall be determined by Contractor. Contractor shall pay all salaries and expenses of, and pay all federal social security taxes, federal and state unemployment taxes, and any similar payroll taxes relating to, Contractor’s employees. G. Permits, Licenses, and Certificates. Contractor shall obtain and maintain all necessary licenses and permits; comply with the requirements of all permits; pay all taxes lawfully imposed on Contractor’s business; and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. Said licensing includes, but is not limited to, obtaining state and borough business licenses and tax certificates, and, where applicable to Contractor, paying all taxes and filing all documents Kenai Visitor and Cultural Center Agreement Page 4 of 15 necessary to maintain Contractor’s status as a corporate entity in good standing in the State of Alaska. H. Taxes and Assessments. Contractor shall pay all taxes lawfully imposed on its business, and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. Contractor shall collect and pay any and all gross receipts, compensation, transaction, sales, use, payroll, or other taxes and assessments of whatever nature and kind levied or assessed as a consequence of the work performed or on the compensation paid to Contractor or to Contractor’s employees or contractors under or arising out of this Agreement. 6. Scope of Services—Specific Performance Requirements. A. Specific Activities Required. Unless Owner (as approved by the Council) requests termination of a service, Contractor shall provide the following services at the Facility on a regularly-scheduled basis: Visitor Center Management: a. The City provides non-exclusive access to the City-owned Kenai Visitor and Cultural Center. Located at 11471 Kenai Spur Highway, the Facility was constructed in 1992 and is approximately 9,340 square feet, including a 1,980-square-foot Cultural Exhibition Area, which houses the City’s permanent collection of natural history objects, archeological material, native artifacts and contemporary art. The Facility also includes a conference room, reception, boardroom, two offices, loading area, copy room, kitchen, storage, bathrooms and basement. The Contractor may charge City-approved fees and rent for portions of the center upon written consent, as well as sell merchandise at the Facility to defray costs associated with Facility management. All fees and rents must be the same for all users unless differentiated in the approved fee schedule. b. The City provides maintenance, groundskeeping, snow removal, security monitoring, and utilities (water, sewer, electrical, natural gas, and local telephone services excluding long distance telephone charges, and internet services) at no cost to the Contractor. The Contractor must keep the Facility in a clean and sanitary condition and is responsible for janitorial services and operating supplies. During the term of this Agreement, local telephone service will not be provided by the Contractor until August 15, 2019. c. The Contractor maintains adequate staffing during operating hours to provide service to the public. As the first stop made by visitors to find information about the Kenai area, the Contractor must provide information on Kenai community and visitor programs, events, and exhibits in a friendly and enthusiastic manner. The Contractor may not refer visitors to businesses outside the City of Kenai when businesses in the City provide the same or similar services regardless of Kenai Chamber of Commerce and Visitor Center membership. Kenai Visitor and Cultural Center Agreement Page 5 of 15 d. The Contractor provides an agreed upon plan of operations for management of the Kenai Visitor and Cultural Center Facility to include but not be limited to proposed staffing, hours of operations, scheduling and managing use of the Facility with high standards commensurate to a high- visibility structure and to ensure operations run efficiently and maintain the safety, appearance, and the efficient/effective use of the Facility to host community and visitor programs, events, and exhibits without favoritism or discrimination. e. The Contractor manages, creates, and maintains displays of the City of Kenai’s permanent collection of natural history objects, archeological material, native artifacts and contemporary art and encourages use of the Facility for events and exhibits that promote Kenai’s abundant natural resources and diverse community and provides an inventory of all items in the City’s collection. f. The Contractor tracks and provides a monthly report on the number and nature of visitors to the Center, Facility rentals, and participants at events and exhibits. B. Operating Hours; Calendar. Contractor will maintain daily and monthly schedules of services and activities held at the Facility and shall provide public access to this schedule. Contractor shall operate the Facility according to this published schedule. Special events outside of normal operating hours need not be published. C. Fee Schedule. Contractor shall develop and publish fee schedules for all services, events, and activities conducted at the Facility and for all charges made to the public for use of the Facility and its equipment. The fee schedule must be approved in advance by the City Manager and may be subject to change by the Council. D. Revenues. Contractor shall collect all revenues generated at the Facility and shall use generally-accepted accounting principles and appropriate internal controls for its accounting activities. Contractor agrees that Owner shall not be liable or responsible for funding any deficits or delinquencies owed to Contractor other than the payments required under Section 3 of this Agreement. E. Repairs. Contractor bears the responsibility for the cost of repairs of the structure or its internal components and equipment due to any damage or breakage caused by the negligence or intentional act of the Contractor or of a client during operating hours of the Facility. F. Janitorial; Appearance. Contractor shall keep the Facility in a clean and sanitary condition. Contractor shall pay for and provide all janitorial services and supplies required to keep the Facility clean and presentable. Contractor shall not permit any garbage or other refuse to accumulate in the Facility or on the grounds surrounding the Facility. Kenai Visitor and Cultural Center Agreement Page 6 of 15 G. Security. Contractor will take all reasonable precautions to prevent unauthorized entry into the Facility, including the placing of signs or other devices intended to deter or restrict such entry. Contractor shall develop and follow policies and procedures relating to issuing keys, handling cash and deposits, opening and closing, and dealing with difficult patrons. H. City Use. The City may use the Facility for City sponsored events at no cost to the City. All City events shall be coordinated with Contractor so as not interfere with prior scheduled services. 7. Contractor’s Reporting and Planning Requirements. A. Operations Plan. Contractor shall provide Owner with an Operations Plan on a timely basis. Contractor shall work with the City Manager’s office to ensure the Operations Plan meets the requirements and expectations of Owner. B. Facility Operating Budget. The Contractor will submit to Owner its Operating Budget on a timely basis. The budget should include all projected and the prior year’s actual operating and capital costs for the Facility, including a projected income and expense statement and a projected end balance sheet. The budget must also include detailed projections of revenues by category and source; operating expenses by category; numbers served by category; and administrative and general expenses to Contractor in managing the Facility. C. Report. Contractor will submit to Owner a report identifying usage of the Facility by program for the term of the Agreement. The report must include but not be limited to actual staffing, hours of operations, scheduling and use of the Facility, rental fees, number of visitors, an updated inventory of Owner’s equipment and furnishings purchased, and a detailed description, including costs, for equipment needing to be replaced. Contractor must submit the report on or before the end of the term of this Agreement beginning _______________ (date). 8. Owner’s Obligations. Owner shall perform the following functions or provide the following materials related to the Facility: A. Operations and Maintenance Costs. Owner is responsible for maintenance and repair of the Facility required by normal wear and tear. Owner will perform routine maintenance on all incorporated systems in the Facility including fire suppression and alarm systems, electrical systems, mechanical systems, plumbing systems, and HVAC. Contractor must notify the City Manager, or designee about any Facility maintenance or repair requirements in a manner as requested by Owner. This duty of Owner does not extend to maintenance on a system required due to Contractor’s failure to properly supervise and manage the Facility during business hours (for example, vandalism in the Facility during schedule working hours). Kenai Visitor and Cultural Center Agreement Page 7 of 15 B. Utilities. Owner shall pay the following utility costs for the Facility: water, sewer, electrical, natural gas, telephone and internet service (excluding long-distance, conference call, and other extraordinary phone charges). C. Snow Removal. Owner is responsible for snow removal from the parking lot of the Facility as well as snow removal from all sidewalks around the building and leading up to the building. D. Groundskeeping. Owner shall maintain the grounds on the exterior of the Facility, subject to Contractor’s obligation to keep the grounds of the Facility free of garbage and refuse. E. Equipment Replacement. Owner is responsible for the replacement of Owner-owned equipment as necessary due to normal wear and tear of the equipment. F. Insurance. Owner shall provide Broad-Form Property Damage Insurance for the Facility. 9. Ownership of Equipment and Furnishings. A. Owner recognizes that Contractor will from time-to-time purchase equipment and furnishings to accomplish the work and provide the management services required and the concessions allowed under this Agreement. Equipment and furnishings purchased with Contractor funds shall be the sole property of Contractor. Equipment and furnishings donated to Contractor shall be the sole property of Contractor. Contractor shall provide Owner an updated list of Contractor property at the inception of this Agreement and at such time asequipment or furnishings are acquired. B. Equipment and furnishings purchased with Owner funds or with any funds provided by grants from Owner shall be the sole property of Owner. Contractor will mark and inventory this Owner property and provide Owner with a copy of the inventory with reports required by this Agreement. C. Prior to occupying the Facility, Contractor and Owner will conduct a walkthrough to investigate conditions of the Facility and equipment inside the Facility. 10. Alterations and Renovations. Contractor may not make any alterations or renovations to the Facility without the prior written consent of Owner. Contractor shall provide Owner with an actual cost report within ten days of completion of any alteration or renovation project. 11. Signs. Contractor may not place or erect poles, lights or devices on the exterior of the Facility or the curtilage or on adjacent property without the prior written consent of Owner. Kenai Visitor and Cultural Center Agreement Page 8 of 15 12. Fundraising. Fundraising using the name of, or on behalf of, the City of Kenai or the Kenai Visitor and Cultural Center must be approved in advance in writing by the City Manager. 13. Insurance. A. Contractor shall, at Contractor’s own expense, secure and maintain the following insurance: i. Comprehensive general liability insurance, including premises, all operations, property damage, personal injury and death, broad-form contractual coverage with a per occurrence limit of not less than $1,000,000 combined single limit; ii. Worker's compensation insurance with coverage for all employees engaged in work under this Agreement as required by AS 23.30.045 (Contractor is responsible for worker's compensation insurance for any subcontractor who directly or indirectly provides services under the Agreement); and, iii. Comprehensive automobile liability insurance covering all owned, hired, and non-owned vehicles with coverage limits not less than $1,000,000 combined single limit per occurrence. Where specific limits are stated, the limits are the minimum acceptable limits. If Contractor’s insurance policy contains higher limits, Owner is entitled to coverage to the extent of the higher limits. B. All insurance required by this Section 13 shall meet the following additional requirements: i. For comprehensive general liability and automobile liability insurance, name the City of Kenai as an additional insured; ii. For worker’s compensation insurance, general liability, and automobile liability insurance, where possible, include a waiver of subrogation so that the insurer waives all rights of subrogation against the City of Kenai for payments made under the policy; iii. Provide Owner with at least thirty (30) days’ written notice before any termination, cancellation, or material change in insurance coverage is effective; and, iv. Be issued by a company/corporation currently rated “A-” or better by A.M. Best. Kenai Visitor and Cultural Center Agreement Page 9 of 15 C. Contractor shall submit to Owner proof of insurance coverage in the form of insurance policies, certificates, endorsements, or a combination thereof, and signed by a person authorized by the insurer to bind coverage on its behalf. The effective date of the insurance will be no later than the first day of the term of this Agreement. D. The indemnification and insurance coverage requirements stated in this Section 13 and in Section 14 below do not relieve Contractor of any other obligation under this Agreement. E. Owner may increase the amount or revise the type of required insurance upon written demand without requiring amendments to this Agreement. Owner will base any increase or revision upon reasonable and justifiable grounds. Within two weeks of the written demand, Contractor shall submit to Owner evidence of insurance coverage that meets the requirements of Owner. 14. Indemnity, Defend, and Hold Harmless Agreement. Contractor shall indemnify, defend, and hold harmless Owner and its agents, employees, and/or insurers from claim, loss, damage, liability, including injury and death or expense in any way related to any act or omission of Contractor or Contractor’s employees, agents, or invitees arising out of Contractor’s performance of services under this Agreement, except to the extent any negligence of Owner or its employees or agents is a proximate cause of any injury or damage. If a third party asserts a claim against Contractor and Owner, Contractor and Owner shall seek in good faith to achieve Agreement to an apportionment of fault as between them without an independent of litigation. This provision shall survive expiration or termination of this Agreement. 15. Notice of Accident, Injury, or Claims. A. Each party shall give to the other prompt and timely written notice of any claim made or suit instituted within its knowledge that in any way, directly or indirectly, contingently or otherwise, affects or might affect the other party. B. Contractor shall report all incidents of accident or injury promptly in writing to the City Manager of Kenai. 16. Termination. A. For Cause. If either party fails to perform any of the terms, conditions, covenants, or obligations under this Agreement, the other party may terminate this Agreement. As a condition of the exercise of the right of termination, the terminating party must notify the other party in writing of its intent to terminate, stating with reasonable specificity the reasons for termination for cause. Upon receiving this written notice, the other party will have 30 calendar days to cure the default(s). If the other party fails to cure Kenai Visitor and Cultural Center Agreement Page 10 of 15 all defaults to the satisfaction of the other party within thirty (30) days, the party may declare the Agreement terminated. B. Termination for Convenience of the City. Owner may terminate this Agreement at any time by giving written notice to Contractor of its intent to terminate. Owner shall provide contractor with at least sixty (60) days’ advance notice of its election to terminate for its convenience. All finished or unfinished documents, surveys, reports, and/or other material prepared by Contractor under this Agreement are the property of Owner and Contractor hereby agrees to peaceably return all such items to Owner by or upon the effective date of termination and as may be further instructed by Owner. Contractor shall be entitled to receive compensation for services rendered up to and through the date of termination. 17. Duties Upon Termination. A. Upon termination of this Agreement under Section 16(A), Owner may take immediate possession of the Facility. B. Upon termination of this Agreement under Section 16(B), including termination due to non-appropriation of funds by the Council, there shall be a transition period of not greater than sixty (60) days with regard to the removal of Contractor’s property from the Facility. If Contractor fails to vacate upon expiration of the transition period, the City may remove and store the property at Contractor’s expense or store the equipment at the Facility and charge Contractor a reasonable storage fee. C. Contractor shall deliver to the Manager all documents, records, work products, materials and equipment of Owner requested by the Manager. D. If Contractor’s services are terminated for any reason, Contractor’s claim for compensation shall be limited to payments due based on a proportional number of days it operated the Facility without prior compensation. Contributions in kind are not eligible for reimbursement unless this contribution is directed toward approved, appraisable improvement to the Facility. Upon termination, any alteration or renovation to the Facility approved by Owner in writing, will be reimbursed at fair market value or actual cost as reported to Owner (whichever is less) unless the parties have previously otherwise agreed. If necessary, fair market value of such improvements will be determined by a professional appraiser. The appraiser will be selected jointly by the parties and the appraisal fee will be split equally. 18. Records and Right to Audit. A. Contractor agrees to keep reliable accounting records and to prepare financial statements in accordance with generally accepted accounting principles. B. Contractor shall make available to Owner for audit, examination, and Kenai Visitor and Cultural Center Agreement Page 11 of 15 copying, all of Contractor’s records with respect to all matters covered by this Agreement continuing for a period ending six (6) years after the date of expiration or termination. These records include, but are not limited to financial statements, ledgers, invoices, inventories, reports, employment Agreements and other contracts related to Contractor’s provision of services under this Agreement. Contractor shall make available for examination all such records, and in such form as the City may reasonably require, at any time during Owner’s normal business hours. Contractor shall make such records available to Owner upon ten business days’ notice, except in the case of emergency where Contractor shall make such records available immediately. C. In performing audits and investigations, Owner shall not unduly interfere with the ability of Contractor to perform its duties under this Agreement. 19. Right of Entry. Owner, its officers, employees, agents, and representatives may enter the Facility during operating hours to make inspection of the Facility and/or to perform maintenance activities. Owner will make reasonable attempts to notify Contractor if it requires emergency entry after operating hours. 20. No Discrimination. Contractor shall not discriminate on the grounds of race, color, religion, national origin, ancestry, age, or sex against any patron, employee, applicant for employment, or other person or group of persons in any manner prohibited by federal or State law. Contractor recognizes the right of Owner to take any action necessary to enforce this requirement. 21. Administration of this Agreement. A. The Kenai City Manager is the representative of the City in administering this Agreement. B. Contractor is responsible for the direct supervision of Contractor’s personnel through Contractor’s designated representative, and such representative shall in turn be available at all reasonable times to confer with the Owner’s representative with respect to the services. The designated representative for Contractor is ____________________________. In the event that Contractor’s representative is unable to continue to serve as Contractor’s representative, Contractor shall appoint a successor subject to a written approval of the Owner. 22. Notices. Any notice or communication required or permitted under this Agreement shall be in writing, addressed to the appropriate party at the address given below for the type of delivery, and given personally, by certified mail (return receipt requested), or by electronic mail. Notice by facsimile will NOT be accepted. All notices shall be effective upon the date of receipt, except if the notice or communication is received after 5:00 p.m. on a business day, or on a day that is not a business day of the receiving party, and then the notice or communication is deemed received at 8:00 a.m. on the next business day. Kenai Visitor and Cultural Center Agreement Page 12 of 15 Owner: City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 Attn: City Manager Email: postrander@kenai.city Contractor: Kenai Chamber of Commerce and Visitor Center, Inc. 11471 Kenai Spur Highway Kenai, AK 99611 ATTN: Email: Either party may change its address for notice by giving notice as provided herein to the other party. 23. Miscellaneous Provisions. A. No Lease. This Agreement does not lease, rent, or otherwise convey any land or interest in real property or in the Facility or personal property of Owner’s and in the Facility to Contractor. B. Compliance with Laws. In performing its obligations, Contractor will comply with all laws, ordinances, and regulations of duly-constituted public authorities now or later enacted. C. Assignment and Subcontract. Contractor shall not assign, subcontract, and/or transfer any right, obligation, or part of the services or work to be performed under this Agreement without prior written approval of the Owner. Any such assignment or transfer or subcontracting of services without the consent of Owner shall constitute a default of Contractor. D. Assumption of Risk. Contractor shall provide all proper safeguards and assume all risks incurred in performing the services. E. No Waiver. If Owner does not insist in any one or more instances on the strict performance by Contractor of any requirement under this Agreement, it is not a waiver or relinquishment for the future, but the requirement will continue in full force. An Owner waiver of any provision or requirement in this Agreement cannot be enforced nor relied on unless the waiver is in writing and signed on behalf of Owner. F. 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 Kenai Visitor and Cultural Center Agreement Page 13 of 15 this Agreement or the performance of either party, are merged and integrated into this Agreement. This Agreement may not be modified except in writing signed by both parties. G. Applicable Law/Venue. In any dispute between the parties, the laws of the State of Alaska shall govern. If any such dispute results in a lawsuit, the parties will bring the lawsuit before the courts of the State of Alaska in the Third Judicial District at Kenai. H. Attorney’s Fees and Costs. In the event that either party is in default in the performance of any of its obligations under this Agreement and any legal proceeding including arbitration is brought, the defaulting party shall pay to the other all actual costs and all expenses incurred in the action, including actual, reasonable attorney's fees. I. Remedies. No right or remedy here conferred upon or reserved to either party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given, or now or later existing at law or in equity or by statute. J. Rules of Interpretation. Headings of Sections are solely for convenience of reference and shall not affect meaning, construction, or effect of this Agreement. 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. K. Computation of Time. If any due date for a report or notice required under this Agreement falls on a weekend or on a City of Kenai holiday, the report or notice will be timely if filed with Owner on the next regular business day. L. Validity of Parts. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. M. Authority. Contractor represents that Contractor has read this Agreement and Contractor agrees to be bound by its terms and conditions and that the person signing this Agreement is duly authorized to bind Contractor. N. Effective Date. This Agreement is effective upon the latter signature of all parties and approval by the Kenai City Council. The parties have caused this Agreement to be executed in their respective names or by their duly authorized representatives. CITY OF KENAI CONTRACTOR By: By: Paul Ostrander Date ______________________ Date Kenai Visitor and Cultural Center Agreement Page 14 of 15 Its: City Manager Its: ___________________ ACKNOWLEDGMENTS STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this ___ day of ______, 2019, by Paul Ostrander, City Manager of the City of Kenai, an Alaska municipal corporation, on behalf of the City. NOTARY PUBLIC for State of Alaska My Commission Expires: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2019, by _____________________________, __________________________ (Title) of Kenai Chamber of Commerce and Visitor Center, Inc. an Alaska corporation, on behalf of the corporation. NOTARY PUBLIC for State of Alaska My Commission Expires: ATTEST: __________________________ City Clerk SEAL: Kenai Visitor and Cultural Center Agreement Page 15 of 15 APPROVED AS TO FORM: __________________________ Scott Bloom, City Attorney MEMORANDUM TO: Mayor Brian Gabriel and Kenai City Council FROM: Paul Ostrander, City Manager DATE: June 25, 2019 SUBJECT: Resolution No. 2019 – 45 – Facility Management Agreement for the Kenai Visitor and Cultural Center ____________________________________________________________________________ The purpose of this memorandum is to recommend to Council the approval of a Facility Management Agreement with the Kenai Chamber of Commerce and Visitor Center, Inc. (KCCVC) for the operation and management of the Kenai Visitor and Cultural Center facility. Competitive proposals were previously solicited for management services and/or Kenai tourism and marketing services on March 1, 2019; the City received one responsible proposal for tourism and marketing and no proposals for management services. The City solicited for management services again on April 26, 2019, and the KCCVC submitted the only proposal. The current contract extension expires June 30, 2019. The KCCVC has managed the Kenai Visitor and Cultural Center since 2012 and has expressed an interest in continuing to provide Facility Management services at the facility. The City entered into negotiations on the cost component of the management services with the KCCVC on June 3, 2019. Negotiations continue and several options are being considered. The first option would be continued management of the Facility by the KCCVC for fiscal year 2020 under a new agreement. The second option would shift management of the Facility to the City utilizing a stepped approach where the KCCVC would continue to manage the Facility for an agreed-upon number of months to ensure a smooth transition as they relocate to their former location at the Moose Meat John Cabin. This resolution was submitted in blank form to allow for continued negotiations on both the amount of the contract and the term (to provide for a one-year or multiple-month agreement). Administration will provide additional information on the amount and the term as a result of continued negotiations as a laydown at the July 3, 2019, City Council Meeting. Thank you for your consideration. MEMORANDUM TO: Mayor Brian Gabriel and Kenai City Council FROM: Paul Ostrander, City Manager DATE: July 3, 2019 SUBJECT: Resolution No. 2019 – 45 – Facility Management Agreement for the Kenai Visitor and Cultural Center – Amendment memo ____________________________________________________________________________ There are several blanks in Resolution No. 2019-45 that need to be completed prior to adoption. The following amendments are offered: 1) The second whereas should be amended to read “WHEREAS, the award of the Agreement is in the amount of $95,000 beginning July 4, 2019 or as soon as possible thereafter, and ending June 30, 2020; and,” 2) Section 2 should be amended to read “That the compensation for the Facility Management Services shall not exceed $95,000. Sufficient funds have been budgeted.” Thank you for your consideration. Page 2 of 23 Kenai Visitor and Cultural Center Agreement Page 1 of 15 AGREEMENT FOR FACILITY MANAGEMENT SERVICES AT THE KENAI VISITOR AND CULTURAL CENTER FACILITY THIS AGREEMENT is made this ____ day of _______________ 2019, by and between the CITY OF KENAI (Owner), whose address is 210 Fidalgo Avenue, Kenai, AK 99611-7794, and Kenai Chamber of Commerce and Visitor Center, Inc. (Contractor), whose address is 11471 Kenai Spur Highway, Kenai AK, 99611. RECITALS: Owner desires to retain the professional services of Contractor to manage the Kenai Visitor and Cultural Center located at 11471 Kenai Spur Highway in the City of Kenai. Contractor is a professional in this area and specifically in the provision of visitor services to the public and has the experience, skill, knowledge, and competence to perform these services. Owner wants to contract for the provision of these services by Contractor in order to obtain best financial arrangements for the City and provide affordable and quality experiences for its residents and Facility users. Contractor agrees to perform its services under this Agreement with due diligence and due care and in a good and professional manner. Owner and Contractor therefore agree as follows: 1. Definitions. For this Agreement, the following definitions apply: A. “Manager” means the Kenai City Manager or their designee as agent for and on behalf of Kenai. B. “Concession” means all sales or rentals of goods or services in the Facility, including retail sales, the parts of the Facility where those sales or rentals are made, and equipment or facilities in the Facility used for those sales or rentals. C. “Contractor” shall mean Kenai Chamber of Commerce and Visitor Center, Inc. D. “Council” means the Kenai City Council. E. “Facility” means the Kenai Visitor and Cultural Center located at 11471 Kenai Spur Highway in Kenai, Alaska. F. “Management” or “management services” means performing all work to operate and provide the services and reports required by this Agreement and all work Page 3 of 23 Kenai Visitor and Cultural Center Agreement Page 2 of 15 necessary to support the Facility’s provision of service to the public, including but not limited to, supervision of staff, supervision and control of participants using the Facility and accessing any programs at the Facility, keeping the Facility in a clean and sanitary condition, managing and maintaining displays of the permanent collection at the Facility, scheduling use of the Facility, encouraging activities and programs at the Facility, and charging City-approved fees and rent for portions of the Facility upon written consent, as well as selling merchandise at the Facility. G. “Owner” or “City” means the City of Kenai. 2. Term. The term of this Agreement shall begin on ______________ (date), and end on ______________ (date). Neither party has any obligation to agree to extend the initial term of this Agreement. 3. Compensation. A. Owner shall pay Contractor a fee of $______________ per month for management of the Facility for the term of this Agreement. Owner will pay the fee in equal monthly installments, payable within fourteen (14) days after billing by Contractor. Any compensation due for portions of a month for which services are provided by Contractor will be pro-rated to a daily rate. B. Except as may otherwise be stated in this Agreement, Owner will not provide any additional compensation, payment, service, or other thing of value to Contractor in connection with performance of its obligations under this Agreement. Contractor’s overhead and other indirect or direct costs Contractor may incur in performing its obligations under this Agreement have already been included in computation of Contractor's fee and may not be separately charged to the Owner. C. Subject to Appropriation. Contractor recognizes that compensation for its management services require the Council to annually appropriate funds for payment of the management services. The obligation of Owner to provide funding under this Agreement is subject to the availability of funds lawfully appropriated for that purpose by the Council. The termination of this Agreement due to fiscal necessity and/or non- appropriation of funds by Owner shall not constitute a breach or default of Owner. In the event of a non-appropriation of funds, Owner may terminate this Agreement under Section 16(B), below, however termination shall not be subject to sixty (60) days’ notice. Instead, Owner shall give reasonable advance notice of non-appropriation as soon as practicable but in no case shall notice be less than ten days in advance of the effective termination date. 4. Independent Contractor; No Agency. Contractor’s relationship with Owner shall be that of an independent contractor with the authority to control and direct the performance of the details of the management services that are the subject of this Agreement. Nothing contained in this Agreement shall be construed to create an agency, Page 4 of 23 Kenai Visitor and Cultural Center Agreement Page 3 of 15 partnership, joint venture, or employee-employer relationship between Owner and Contractor. Contractor is not the agent of Owner and Contractor is not authorized to make any representation, contract, or commitment on behalf of Owner. 5. Scope of Services—General Obligations of Contractor. A. Operations. Contractor shall perform the management work and all services on an as needed/scheduled basis as determined by Contractor (except where specifically identified below). B. Services. Contractor agrees to make the Facility available to community user groups and/or organizations in order to serve the varied interests and needs of the community. C. Concessions. Contractor may provide, at its own expense, business, educational, cultural, or other services to the general public that are not inconsistent with this Agreement. Contractor shall have the exclusive right to operate concessions, including retail sales, in the Facility. Contractor is responsible for defining said services and coordinating all aspects of service offerings, whether required under this Agreement or offered as an additional concession of Contractor. D. Fees. Contractor may charge a fee approved by the City for use of the Facility and/or for participation in any programs and/or services it provides unless otherwise specified in this Agreement. Any fees charged by Contractor for any purpose must not discourage public use of the Facility and should be consistent with fees charged for similar services at other facilities. E. Public Facility. The programs provided in the Facility must be generally available to the public. Contractor may not restrict appropriate public participation at the Facility and may not restrict public access for appropriate use of the Facility. F. Employees. It is Contractor’s duty to train Contractor’s employees in order to provide the management services. The management services shall be performed by qualified, careful, and efficient employees in strict conformity with the best practices and highest applicable standards. The manner in which these services are performed shall be determined by Contractor. Contractor shall pay all salaries and expenses of, and pay all federal social security taxes, federal and state unemployment taxes, and any similar payroll taxes relating to, Contractor’s employees. G. Permits, Licenses, and Certificates. Contractor shall obtain and maintain all necessary licenses and permits (including but not limited to permits/ licenses required for possession and display of artifacts and taxidermy specimens); comply with the requirements of all permits; pay all taxes lawfully imposed on Contractor’s business; and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. Said licensing includes, but is not limited to, obtaining state and borough Page 5 of 23 Kenai Visitor and Cultural Center Agreement Page 4 of 15 business licenses and tax certificates, and, where applicable to Contractor, paying all taxes and filing all documents necessary to maintain Contractor’s status as a corporate entity in good standing in the State of Alaska. H. Taxes and Assessments. Contractor shall pay all taxes lawfully imposed on its business, and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. Contractor shall collect and pay any and all gross receipts, compensation, transaction, sales, use, payroll, or other taxes and assessments of whatever nature and kind levied or assessed as a consequence of the work performed or on the compensation paid to Contractor or to Contractor’s employees or contractors under or arising out of this Agreement. 6. Scope of Services—Specific Performance Requirements. A. Specific Activities Required. Unless Owner (as approved by the Council) requests termination of a service, Contractor shall provide the following services at the Facility on a regularly-scheduled basis: Visitor Center Management: a. The City provides non-exclusive access to the City-owned Kenai Visitor and Cultural Center. Located at 11471 Kenai Spur Highway, the Facility was constructed in 1992 and is approximately 9,340 square feet, including a 1,980-square-foot Cultural Exhibition Area, which houses the City’s permanent collection of natural history objects, archeological material, native artifacts and contemporary art. The Facility also includes a conference room, reception, boardroom, two offices, loading area, copy room, kitchen, storage, bathrooms and basement. The Contractor may charge City-approved fees and rent for portions of the center upon written consent, as well as sell merchandise at the Facility to defray costs associated with Facility management. All fees and rents must be the same for all users unless differentiated in the approved fee schedule or approved by the Owner. The Owner shall not negotiate rental agreements directly with tenants. b. The City provides maintenance, groundskeeping, snow removal, security monitoring, and utilities (water, sewer, electrical, natural gas, and local telephone services excluding long distance telephone charges, and internet services) at no cost to the Contractor. The Contractor must keep the Facility in a clean and sanitary condition and is responsible for janitorial services and operating supplies. During the term of this Agreement, local telephone service will not be provided by the Contractor Owner until August 15, 2019. c. The Contractor maintains adequate staffing during operating hours to provide service to the public. As the first stop made by visitors to find information about the Kenai area, the Contractor must provide information on Kenai community and visitor programs, events, and exhibits in a friendly and enthusiastic manner. The Contractor will refer visitors to all businesses and service providers in the City of Kenai.may not refer visitors to Page 6 of 23 Kenai Visitor and Cultural Center Agreement Page 5 of 15 businesses outside the City of Kenai when businesses in the City provide the same or similar services regardless of Kenai Chamber of Commerce and Visitor Center membership. d. The Contractor provides an agreed upon plan of operations for management of the Kenai Visitor and Cultural Center Facility to include but not be limited to proposed staffing, hours of operations, scheduling and managing use of the Facility with high standards commensurate to a high- visibility structure and to ensure operations run efficiently and maintain the safety, appearance, and the efficient/effective use of the Facility to host community and visitor programs, events, and exhibits without favoritism or discrimination. e. The Contractor manages, creates, and maintains displays of the City of Kenai’s permanent collection of natural history objects, archeological material, native artifacts and contemporary art and encourages use of the Facility for events and exhibits that promote Kenai’s abundant natural resources and diverse community and provides an inventory of all items in the City’s collection. f. The Contractor tracks and provides a monthly report on the number and estimated nature of visitors to the Center, Facility rentals, and participants at events and exhibits. B. Operating Hours; Calendar. Contractor will maintain daily and monthly schedules of services and activities held at the Facility and shall provide public access to this schedule. Contractor shall operate the Facility according to this published schedule. Special events outside of normal operating hours need not be published. C. Fee Schedule. Contractor shall develop and publish fee schedules for all services, events, and activities conducted at the Facility and for all charges made to the public for use of the Facility and its equipment. The fee schedule must be approved in advance by the City Manager and may be subject to change by the Council. D. Revenues. Contractor shall collect all revenues generated at the Facility and shall use generally-accepted accounting principles and appropriate internal controls for its accounting activities. Contractor agrees that Owner shall not be liable or responsible for funding any deficits or delinquencies owed to Contractor other than the payments required under Section 3 of this Agreement. E. Repairs. Contractor bears the responsibility for the cost of repairs of the structure or its internal components and equipment due to any damage or breakage caused by the negligence or intentional act of the Contractor or of a client during operating hours of the Facility due to or allowed through negligence by the Contractor. F. Janitorial; Appearance. Contractor shall keep the Facility in a clean and sanitary condition. Contractor shall pay for and provide all janitorial services and supplies required to keep the Facility clean and presentable. Contractor shall not permit any Page 7 of 23 Kenai Visitor and Cultural Center Agreement Page 6 of 15 garbage or other refuse to accumulate in the Facility or on the grounds surrounding the Facility. G. Security. Contractor will take all reasonable precautions to prevent unauthorized entry into the Facility, including the placing of signs or other devices intended to deter or restrict such entry. Contractor shall develop and follow policies and procedures relating to issuing keys, handling cash and deposits, opening and closing, and dealing with difficult patrons. H. City Use. The City may use the Facility for City sponsored events at no cost to the City. All City events shall be coordinated with Contractor so as not interfere with prior scheduled services. 7. Contractor’s Reporting and Planning Requirements. A. Operations Plan. Contractor shall provide Owner with an Operations Plan on a timely basis. Contractor shall work with the City Manager’s office to ensure the Operations Plan meets the requirements and expectations of Owner. B. Facility Operating Budget. The Contractor will submit to Owner its Operating Budget on a timely basis. The budget should include all projected and the prior year’s actual operating and capital costs for the Facility, including a projected income and expense statement and a projected end balance sheet. The budget must also include detailed projections of revenues by category and source; operating expenses by category; numbers served by category; and administrative and general expenses to Contractor in managing the Facility. C. Report. Contractor will submit to Owner a report identifying usage of the Facility by program for the term of the Agreement. The report must include but not be limited to actual staffing, hours of operations, scheduling and use of the Facility, rental fees, number of visitors, an updated inventory of Owner’s equipment and furnishings purchased, and a detailed description, including costs, for equipment needing to be replaced. Contractor must submit the report on or before the end of the term of this Agreement beginning _______________ (date). 8. Owner’s Obligations. Owner shall perform the following functions or provide the following materials related to the Facility: A. Operations and Maintenance Costs. Owner is responsible for maintenance and repair of the Facility required by normal wear and tear. Owner will perform routine maintenance on all incorporated systems in the Facility including fire suppression and alarm systems, electrical systems, mechanical systems, plumbing systems, and HVAC. Contractor must notify the City Manager, or designee about any Facility maintenance or repair requirements in a manner as requested by Owner. This duty of Owner does not extend to maintenance on a system required due to Contractor’s failure to properly Page 8 of 23 Kenai Visitor and Cultural Center Agreement Page 7 of 15 supervise and manage the Facility during business hours (for example, vandalism in the Facility during schedule working hours). B. Utilities. Owner shall pay the following utility costs for the Facility: water, sewer, electrical, natural gas, telephone and internet service (excluding long-distance, conference call, and other extraordinary phone charges). C. Snow Removal. Owner is responsible for snow removal from the parking lot of the Facility as well as snow removal from all sidewalks around the building and leading up to the building. D. Groundskeeping. Owner shall maintain the grounds on the exterior of the Facility, subject to Contractor’s obligation to keep the grounds of the Facility free of garbage and refuse. E. Equipment Replacement. Owner is responsible for the replacement of Owner-owned equipment as necessary due to normal wear and tear of the equipment. F. Insurance. Owner shall provide Broad-Form Property Damage Insurance for the Facility. 9. Ownership of Equipment and Furnishings. A. Owner recognizes that Contractor will from time-to-time purchase equipment and furnishings to accomplish the work and provide the management services required and the concessions allowed under this Agreement. Equipment and furnishings purchased with Contractor funds shall be the sole property of Contractor. Equipment and furnishings donated to Contractor shall be the sole property of Contractor. Contractor shall provide Owner an updated list of Contractor property at the inception and conclusion of this Agreement and at such time asequipment or furnishings are acquired. B. Equipment and furnishings purchased with Owner funds or with any funds provided by grants from Owner shall be the sole property of Owner. Contractor will mark and inventory this Owner property and provide Owner with a copy of the inventory with reports required by this Agreement. C. Prior to occupying the Facility, Contractor and Owner will conduct a walkthrough to investigate conditions of the Facility and equipment inside the Facility. 10. Alterations and Renovations. Contractor may not make any alterations or renovations to the Facility without the prior written consent of Owner. Contractor shall provide Owner with an actual cost report within ten days of completion of any alteration or renovation project. Page 9 of 23 Kenai Visitor and Cultural Center Agreement Page 8 of 15 11. Signs. Contractor may not place or erect poles, lights or devices on the exterior of the Facility or the curtilage or on adjacent property without the prior written consent of Owner. 12. Fundraising. Fundraising using the name of, or on behalf of, the City of Kenai or the Kenai Visitor and Cultural Center must be approved in advance in writing by the City Manager. 13. Insurance. A. Contractor shall, at Contractor’s own expense, secure and maintain the following insurance: i. Comprehensive general liability insurance, including premises, all operations, property damage, personal injury and death, broad-form contractual coverage with a per occurrence limit of not less than $1,000,000 combined single limit; ii. Worker's compensation insurance with coverage for all employees engaged in work under this Agreement as required by AS 23.30.045 (Contractor is responsible for worker's compensation insurance for any subcontractor who directly or indirectly provides services under the Agreement); and, iii. Comprehensive automobile liability insurance covering all owned, hired, and non-owned vehicles with coverage limits not less than $1,000,000 combined single limit per occurrence. Where specific limits are stated, the limits are the minimum acceptable limits. If Contractor’s insurance policy contains higher limits, Owner is entitled to coverage to the extent of the higher limits. B. All insurance required by this Section 13 shall meet the following additional requirements: i. For comprehensive general liability and automobile liability insurance, name the City of Kenai as an additional insured; ii. For worker’s compensation insurance, general liability, and automobile liability insurance, where possible, include a waiver of subrogation so that the insurer waives all rights of subrogation against the City of Kenai for payments made under the policy; Page 10 of 23 Kenai Visitor and Cultural Center Agreement Page 9 of 15 iii. Provide Owner with at least thirty (30) days’ written notice before any termination, cancellation, or material change in insurance coverage is effective; and, iv. Be issued by a company/corporation currently rated “A-” or better by A.M. Best. C. Contractor shall submit to Owner proof of insurance coverage in the form of insurance policies, certificates, endorsements, or a combination thereof, and signed by a person authorized by the insurer to bind coverage on its behalf. The effective date of the insurance will be no later than the first day of the term of this Agreement. D. The indemnification and insurance coverage requirements stated in this Section 13 and in Section 14 below do not relieve Contractor of any other obligation under this Agreement. E. Owner may increase the amount or revise the type of required insurance upon written demand without requiring amendments to this Agreement. Owner will base any increase or revision upon reasonable and justifiable grounds. Within two weeks of the written demand, Contractor shall submit to Owner evidence of insurance coverage that meets the requirements of Owner. 14. Indemnity, Defend, and Hold Harmless Agreement. Contractor shall indemnify, defend, and hold harmless Owner and its agents, employees, and/or insurers from claim, loss, damage, liability, including injury and death or expense in any way related to any act or omission of Contractor or Contractor’s employees, agents, or invitees arising out of Contractor’s performance of services under this Agreement, except to the extent any negligence of Owner or its employees or agents is a proximate cause of any injury or damage. If a third party asserts a claim against Contractor and Owner, Contractor and Owner shall seek in good faith to achieve Agreement to an apportionment of fault as between them without an independent of litigation. This provision shall survive expiration or termination of this Agreement. 15. Notice of Accident, Injury, or Claims. A. Each party shall give to the other prompt and timely written notice of any claim made or suit instituted within its knowledge that in any way, directly or indirectly, contingently or otherwise, affects or might affect the other party. B. Contractor shall report all incidents of accident or injury promptly in writing to the City Manager of Kenai. 16. Termination. Page 11 of 23 Kenai Visitor and Cultural Center Agreement Page 10 of 15 A. For Cause. If either party fails to perform any of the terms, conditions, covenants, or obligations under this Agreement, the other party may terminate this Agreement. As a condition of the exercise of the right of termination, the terminating party must notify the other party in writing of its intent to terminate, stating with reasonable specificity the reasons for termination for cause. Upon receiving this written notice, the other party will have 30 calendar days to cure the default(s). If the other party fails to cure all defaults to the satisfaction of the other party within thirty (30) days, the party may declare the Agreement terminated. B. Termination for Convenience of the City. Owner may terminate this Agreement at any time by giving written notice to Contractor of its intent to terminate. Owner shall provide contractor with at least sixty (60) days’ advance notice of its election to terminate for its convenience. All finished or unfinished documents, surveys, reports, and/or other material prepared by Contractor under this Agreement are the property of Owner and Contractor hereby agrees to peaceably return all such items to Owner by or upon the effective date of termination and as may be further instructed by Owner. Contractor shall be entitled to receive compensation for services rendered up to and through the date of termination. 17. Duties Upon Termination. A. Upon termination of this Agreement under Section 16(A), Owner may take immediate possession of the Facility. B. Upon termination of this Agreement under Section 16(B), including termination due to non-appropriation of funds by the Council, there shall be a transition period of not greater than sixty (60) days with regard to the removal of Contractor’s property from the Facility. If Contractor fails to vacate upon expiration of the transition period, the City may remove and store the property at Contractor’s expense or store the equipment at the Facility and charge Contractor a reasonable storage fee. C. Contractor shall deliver to the Manager all documents, records, work products, materials and equipment of Owner requested by the Manager. D. If Contractor’s services are terminated for any reason, Contractor’s claim for compensation shall be limited to payments due based on a proportional number of days it operated the Facility without prior compensation. Contributions in kind are not eligible for reimbursement unless this contribution is directed toward approved, appraisable improvement to the Facility. Upon termination, any alteration or renovation to the Facility approved by Owner in writing, will be reimbursed at fair market value or actual cost as reported to Owner (whichever is less) unless the parties have previously otherwise agreed. If necessary, fair market value of such improvements will be determined by a professional appraiser. The appraiser will be selected jointly by the parties and the appraisal fee will be split equally. Page 12 of 23 Kenai Visitor and Cultural Center Agreement Page 11 of 15 18. Records and Right to Audit. A. Contractor agrees to keep reliable accounting records and to prepare financial statements in accordance with generally accepted accounting principles. B. Contractor shall make available to Owner for audit, examination, and copying, all of Contractor’s records with respect to all matters covered by this Agreement continuing for a period ending six (6) years after the date of expiration or termination. These records include, but are not limited to financial statements, ledgers, invoices, inventories, reports, employment Agreements and other contracts related to Contractor’s provision of services under this Agreement. Contractor shall make available for examination all such records, and in such form as the City may reasonably require, at any time during Owner’s normal business hours. Contractor shall make such records available to Owner upon ten business days’ notice, except in the case of emergency where Contractor shall make such records available immediately. C. In performing audits and investigations, Owner shall not unduly interfere with the ability of Contractor to perform its duties under this Agreement. 19. Right of Entry. Owner, its officers, employees, agents, and representatives may enter the Facility during operating hours to make inspection of the Facility and/or to perform maintenance activities. Owner will make reasonable attempts to notify Contractor if it requires emergency entry after operating hours. 20. No Discrimination. Contractor shall not discriminate on the grounds of race, color, religion, national origin, ancestry, age, or sex against any patron, employee, applicant for employment, or other person or group of persons in any manner prohibited by federal or State law. Contractor recognizes the right of Owner to take any action necessary to enforce this requirement. 21. Administration of this Agreement. A. The Kenai City Manager is the representative of the City in administering this Agreement. B. Contractor is responsible for the direct supervision of Contractor’s personnel through Contractor’s designated representative, and such representative shall in turn be available at all reasonable times to confer with the Owner’s representative with respect to the services. The designated representative for Contractor is ____________________________. In the event that Contractor’s representative is unable to continue to serve as Contractor’s representative, Contractor shall appoint a successor subject to a written approval of the Owner. 22. Notices. Any notice or communication required or permitted under this Agreement shall be in writing, addressed to the appropriate party at the address given Page 13 of 23 Kenai Visitor and Cultural Center Agreement Page 12 of 15 below for the type of delivery, and given personally, by certified mail (return receipt requested), or by electronic mail. Notice by facsimile will NOT be accepted. All notices shall be effective upon the date of receipt, except if the notice or communication is received after 5:00 p.m. on a business day, or on a day that is not a business day of the receiving party, and then the notice or communication is deemed received at 8:00 a.m. on the next business day. Owner: City of Kenai 210 Fidalgo Avenue Kenai, AK 99611 Attn: City Manager Email: postrander@kenai.city Contractor: Kenai Chamber of Commerce and Visitor Center, Inc. 11471 Kenai Spur Highway Kenai, AK 99611 ATTN: Email: Either party may change its address for notice by giving notice as provided herein to the other party. 23. Miscellaneous Provisions. A. No Lease. This Agreement does not lease, rent, or otherwise convey any land or interest in real property or in the Facility or personal property of Owner’s and in the Facility to Contractor. B. Compliance with Laws. In performing its obligations, Contractor will comply with all laws, ordinances, and regulations of duly-constituted public authorities now or later enacted. C. Assignment and Subcontract. Contractor shall not assign, subcontract, and/or transfer any right, obligation, or part of the services or work to be performed under this Agreement without prior written approval of the Owner. Any such assignment or transfer or subcontracting of services without the consent of Owner shall constitute a default of Contractor. D. Assumption of Risk. Contractor shall provide all proper safeguards and assume all risks incurred in performing the services. E. No Waiver. If Owner does not insist in any one or more instances on the strict performance by Contractor of any requirement under this Agreement, it is not a waiver or relinquishment for the future, but the requirement will continue in full force. An Page 14 of 23 Kenai Visitor and Cultural Center Agreement Page 13 of 15 Owner waiver of any provision or requirement in this Agreement cannot be enforced nor relied on unless the waiver is in writing and signed on behalf of Owner. F. 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, are merged and integrated into this Agreement. This Agreement may not be modified except in writing signed by both parties. G. Applicable Law/Venue. In any dispute between the parties, the laws of the State of Alaska shall govern. If any such dispute results in a lawsuit, the parties will bring the lawsuit before the courts of the State of Alaska in the Third Judicial District at Kenai. H. Attorney’s Fees and Costs. In the event that either party is in default in the performance of any of its obligations under this Agreement and any legal proceeding including arbitration is brought, the defaulting party shall pay to the other all actual costs and all expenses incurred in the action, including actual, reasonable attorney's fees. I. Remedies. No right or remedy here conferred upon or reserved to either party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given, or now or later existing at law or in equity or by statute. J. Rules of Interpretation. Headings of Sections are solely for convenience of reference and shall not affect meaning, construction, or effect of this Agreement. 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. K. Computation of Time. If any due date for a report or notice required under this Agreement falls on a weekend or on a City of Kenai holiday, the report or notice will be timely if filed with Owner on the next regular business day. L. Validity of Parts. If any term, condition, or provision of this Agreement is declared void or unenforceable, or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. M. Authority. Contractor represents that Contractor has read this Agreement and Contractor agrees to be bound by its terms and conditions and that the person signing this Agreement is duly authorized to bind Contractor. N. Effective Date. This Agreement is effective upon the latter signature of all parties and approval by the Kenai City Council. Page 15 of 23 Kenai Visitor and Cultural Center Agreement Page 14 of 15 The parties have caused this Agreement to be executed in their respective names or by their duly authorized representatives. CITY OF KENAI CONTRACTOR By: By: Paul Ostrander Date ______________________ Date Its: City Manager Its: ___________________ ACKNOWLEDGMENTS STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this ___ day of ______, 2019, by Paul Ostrander, City Manager of the City of Kenai, an Alaska municipal corporation, on behalf of the City. NOTARY PUBLIC for State of Alaska My Commission Expires: STATE OF ALASKA ) )ss THIRD JUDICIAL DISTRICT ) The foregoing instrument was acknowledged before me this ____ day of ____________, 2019, by _____________________________, __________________________ (Title) of Kenai Chamber of Commerce and Visitor Center, Inc. an Alaska corporation, on behalf of the corporation. NOTARY PUBLIC for State of Alaska My Commission Expires: ATTEST: Page 16 of 23 Kenai Visitor and Cultural Center Agreement Page 15 of 15 __________________________ City Clerk SEAL: APPROVED AS TO FORM: __________________________ Scott Bloom, City Attorney Page 17 of 23