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HomeMy WebLinkAboutResolution No. 2024-27"Ox KENAI CITY OF KENAI RESOLUTION NO. 2024-27 Sponsored by: Administration A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN ATM CONCESSION AGREEMENT FOR THE KENAI MUNICIPAL AIRPORT. WHEREAS, on May 8, 2024, the City requested bids to place an ATM in the Airport Terminal for an initial period of one year beginning on July 1, 2024 through June 30, 2025; with an option of four successive one-year terms by mutual written consent of the Owner and Concessionaire; and, WHEREAS, one responsive bid was received on May 30, 2024, and evaluated on percentage of gross sales; and, WHEREAS, Tyler Distributing submitted a responsible bid for an ATM concession at the Kenai Municipal Airport with the highest percentage of gross sales of 15%; and, WHEREAS, City Administration has determined that this proposal meets all requirements; and, WHEREAS, the Airport Commission at its regularly scheduled meeting of June 13, 2024 recommended City Council approval. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA: Section 1. That the City Manager is authorized to enter into an ATM concession agreement with Tyler Distributing for the Kenai Municipal Airport for the period July 1, 2024 through June 30, 2025. Section 2. That this Resolution takes effect immediately upon passage. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, THIS 19T" DAY OF JUNE, 2024. '6 -- " d- Brian Gabriel Sr., Mayor ATTEST: Michelle Sa M , City Clerk New Text Underlined; [DELETED TEXT BRACKETED] A l' A. City of Kenai 210 Fidalgo Ave, Kenai, AK 99611-7794 1907.283.75351 www1enaixity MEMORANDUM TO: Mayor Gabriel and Council Members THROUGH: Terry Eubank, City Manager FROM: Derek Ables, Airport Manager DATE: June 9, 2024 SUBJECT: Resolution No. 2024-27 - Authorizing the City Manager to Enter Into an ATM Concession Agreement for the Kenai Municipal Airport On May 8th ,2024, the airport released an Invitation to Bid for an ATM in the Kenai Municipal Airport Terminal building. The goal of the bid is to provide a service to the traveling public. On May 30th, one responsive bid was received from Tyler Distributing who bid 15% of gross sales. The concession agreement will be effective July 1,2024 through June 30, 2025 with four one-year renewals by mutual agreement between the City and Tyler Distributing. Your support for an ATM Concession with Tyler Distributing is respectfully requested. Attachments- Agreement CITY OF KENAI KENAI MUNICIPAL AIRPORT AUTOMATIC TELLER MACHINE CONCESSION AGREEMENT THIS AGREEMENT is made this of Kenai, (City) whose address is 210 Fidalgo, (Concessionaire) whose address is day of , between the City Kenai, AK 99611, and In consideration of the rights and obligations under this agreement, the parties agree as follows: INTRODUCTION A. The City owns and operates the Kenai Municipal Airport, located in Kenai, Alaska. B. In connection with the Kenai Municipal Airport, the City owns the terminal buildings and adjacent areas. C. The Concessionaire desires to operate an Automatic Teller Machine (ATM) concession business in the terminal. ARTICLE I DEFINITIONS The following definitions apply for this agreement: A. Agreement: This Concession Agreement, together with the exhibits and all future amendments or supplements executed by the parties to this agreement. B. Airport: The real property and facilities of the Kenai Municipal Airport, Kenai, Alaska, as they exist on the execution date of this agreement, together with any future changes. Exhibit "A," sheet 1 of 1, shows the Terminal facility. C. Gross Receipts: The total amount of money or the value of other consideration received from performing the services provided by the Concessionaire. D. Premises: The location approved by the City for the placement of ATM is shown on Exhibit A. ATM Concession -1- 6/14/2024 ARTICLE II TERM A. The term of this Agreement is 1-year, beginning on July 1, 2024, and ending on June 30, 2025. B. Extension. This agreement may be extended for four successive one-year terms by mutual written consent of Concessionaire and City. C. If the Concessionaire holds over and remains in possess of the Premises after this Agreement expires, the holding over will not operate as an extension of the term of this Agreement, but only creates a day-to-day tenancy, regardless of any concession payments accepted by the City. The Concessionaire's obligation for performance under this Agreement will continue during the holdover tenancy. Either party may terminate the holdover at any time by giving the other party at least 24 hours prior written notice. When this Agreement terminates, if the Concessionaire holds over, the Concessionaire will pay the then -current ATM rate. ARTICLE III PREMISES A. The City provides to the Concessionaire and the Concessionaire accepts from the City, the following described property, (Premises), within the City's Airport Terminal, located at the Kenai Municipal Airport: Approximately 10 square feet of designated space in the Terminal against the wall. B. The Concessionaire accepts the Premises in an as -is condition. The City makes no specific warranties, expressed or implied, concerning the Premises' title, access, condition, or suitability for any use, including those uses authorized by this Agreement. The Concessionaire accepts the Premises subject to any covenant, term, or condition affecting the City's title to the Premises. ARTICLE IV RIGHTS GRANTED Subject to the obligations under this agreement, the City grants the Concessionaire the authority to exercise the following: A. Non -Exclusive Ri hts ATM Concession -2- 5/14/2024 1. The non-exclusive right and obligation to operate ATM machines in the terminal. The ATM machine will be free standing. 2. The non-exclusive right to occupy the premises for the purposes authorized under this agreement. B. General Rights 1. The right to ingress, egress, and occupy the premises by the Concessionaire, its officers, contractors, suppliers, service personnel, guests, patrons, and invitees, subject to the security rules of the airport. C. Reservations and Prohibitions 1. The City reserves the right to require the Concessionaire to add, delete, or relocate any ATM to best serve the interest of the public or the City. 2. The City reserves the right to grant others any right or privilege specifically granted the Concessionaire. The rights and privileges granted the Concessionaire under this agreement is the only rights and privileges granted the Concessionaire. The Concessionaire has no easements, rights, or privileges, express or implied, other than those specifically granted under this agreement. 3. The Concessionaire will not sell any service or product unless described in this agreement without the advance written approval of the City. If a question or dispute arises concerning the sale of any service or product, the Concessionaire may submit a written request to the City asking for a review and decision. The City will deliver a written decision to the Concessionaire and the decision of the City is final. ARTICLE V FEES AND PAYMENTS A. Concession Fee: For the rights and privileges granted under this agreement, the Concessionaire will pay the City the following Concession Fee: Concessionaire agrees to pay 15 % of Gross Receipts to the City on a quarterly basis for the privilege of conducting the business authorized herein, plus any applicable tax. B. Payments to the City: 1. Concessionaire shall provide a Certified Gross Receipts Report for each month of the preceding quarter for audit purposes. Concessionaire will pay the percentage payment within 10 days following each quarter of service. Such payment ATM Concession 6/14/2024 -3- will be made for the previous calendar quarter by October loth, January 101h, April loth, and July loth of each calendar year. The Concessionaire will make payments payable to the City of Kenai, 210 Fidalgo Avenue, Kenai, Alaska, 99611, in United States of America currency either by check, cash, bank draft, or money order. The Concessionaire will submit payments free from any claim, demand, setoff, or counterclaim of any kind against the City. On or before the 10th day, beginning October 2024, the City must receive a Certified Activity Report. The form shall reflect the Concessionaire's total gross receipts and the total fees due the City for the previous calendar month for each ATM machine. If any such certified statements are found to be incorrect statements of gross receipts for the month involved, any additional amount determined to be due the City shall be immediately paid to the City by the Concessionaire and any amount of overpayment by the Concessionaire shall be credited against the next monthly payment due to the City under this agreement. Fees are due on or before the 10th for the preceding quarter and delinquent after the due date. Time is of the essence in meeting these requirements and the City will impose interest at the rate of eight percent (8%) per annum and ten percent (10%) penalties of any amount of money owed under this agreement which is not paid on or before the date it becomes due. B. Fees Vest in the City: On completion of each ATM transaction authorized under this agreement, whether for cash or credit, the fees due the City immediately vest in and become the property of the City. The Concessionaire is responsible for these fees until delivered to the City. D. Unsaid Fees: Any rent, charge, fee, or other consideration due but unpaid at the expiration, voluntary or involuntary termination, or cancellation of this agreement is a charge against the Concessionaire and its real or personal property. The City has any lien rights allowed by law. Either the City or its authorized agent may provide enforcement. ARTICLE VI OPERATION OF CONCESSION SERVICES The Concessionaire's operation under this agreement is a service to the general public, airline passengers, and other users of the airport. The Concessionaire acknowledges that the ability of the City to effectively operate the airport and promote tourism to the State of Alaska depends, in part, on the Concessionaire's equipment and service. Accordingly, the Concessionaire will conduct its operation in a first-class, businesslike, efficient, courteous, accommodating manner, and will comply with the following: ATM Concession 6/14/2024 -4- A. Business Development: The Concessionaire will take all reasonable measures to maintain, develop, and increase its business in the terminals. B. Orderly Operation: The Concessionaire will conduct all business in an orderly and peaceful manner without interfering with other tenants, users, or occupants of the airport. C. Equipment and Service Requirements: The City desires to provide the general public, airline passengers, and other users of the terminal with ATM machines of the highest quality. D. Reasonable Pricing: The Concessionaire will furnish the service authorized under this agreement to its customers on a fair and nondiscriminatory basis and at fair, reasonable, and nondiscriminatory prices. Any transaction fees charged to ATM customers shall be no higher than the highest fee charged for similar services at any other ATMs within the City of Kenai. E. Hours of Operation: The Concessionaire will provide ATM machines on a continuous basis to serve the needs of the general public, airline passengers, and other users of the airport. This section will not apply to any period when the Concessionaire is unable to operate its business because of an act or directive of the City or other higher authority, or as a direct result of a natural disaster that affects the tenantability of the terminal or the premises, or as a result of a closure of the airport to all commercial passenger aircraft. Except in an emergency, the Concessionaire will obtain written approval from the City before closing the business for repair, maintenance, construction, or other reason. F. Closure Damages: With 24 hour notice the City may require the Concessionaire to promptly remove (within 48 hours) any ATM machine which is determined by the City to not be operational for three consecutive days. The City may then offer the location to another ATM provider. G. Foreign Currency: Currency offered to the public through the ATMs authorized in this agreement shall be U.S. currency. H. Maintenance: The Concessionaire will keep the ATM machines in good repair, appearance, and in a safe condition at all times at its own expense. The Concessionaire will repair or replace ATM machines as their conditions may require. The Concessionaire will not delay any action the City determines necessary for safety or to maintain the ATMs in good repair and appearance. The Concessionaire will pay for any extraordinary power or cleaning services caused by the Concessionaire which, in the City's determination, is beyond the scope of normal services provided by the City. The Concessionaire is responsible for the cost and ATM Concession -5- 6/14/2024 installation of any electrical conduit or wiring beyond that is available on the premises as of July 1, 2024. If the Concessionaire causes damage to the City or an airport tenant due to inadequate maintenance by the Concessionaire of any of its equipment, fixtures, or systems, the Concessionaire will repair the damage at its own expense. If the Concessionaire does not repair the damage, the City will repair the damage and bill the Concessionaire for the City's costs. The Concessionaire will pay the City within 30 days of the billing date. I. Signs: The Concessionaire will not install any sign, emblem, or advertising on the airport, in the terminals, on the ATM machines, without the prior written approval of the City. J. Smokier: Neither the Concessionaire nor its employees may smoke in the terminal except in designated smoking areas, if any. K. Business Solicitation: The Concessionaire will only solicit and conduct business on the premises authorized under this agreement. L. Securit Pro ram: The Concessionaire will comply with all applicable responsibilities of the airport security program, the airport certification manual, and the airport emergency program required by the Code of Federal Regulations (CFR) Part 139. ARTICLE VII AUDITS, REPORTS BOOKS AND RECORDS A. Maintenance of Books and Records: To provide a satisfactory basis for confirming the accuracy of the Concessionaire's certified activity reports, the Concessionaire will establish and maintain books and records concerning the business authorized under this agreement in accordance with generally accepted accounting principles. The Concessionaire's books and records must, in the determination of the City, enable the Concessionaire to accurately report, and the City to easily check, payments due the City under this agreement. B. Audit: The Concessionaire will permit the City to inspect, copy, and audit the Concessionaire's books, records, and supporting data at the City's request during regular business hours. The City may either transport the necessary books and records to a location on the airport for inspection, copying, or audit, or perform the audit at the location where the Concessionaire maintains the records. C. Concession Underpayments: If any City inspection or audit of the Concessionaire's books and records discloses a Concessionaire underpayment, the Concessionaire will pay the difference within 30 days of the billing date plus interest from the original due date. ATM Concession In 6/1412024 C. Public Information: All books, figures, records, reports, statements, or similar items the Concessionaire submits to the City are public records and available for public inspection. ARTICLE VIII CONSTRUCTION A. General Construction Requirements: The Concessionaire will obtain the written approval of the City in the form of a City Building Permit that includes all applicable attachments and detailed drawings of the proposed construction before beginning any alteration, construction, or improvement of the premises. ARTICLE IX ADDITION, REDUCTION, OR RELOCATION OF CONCESSION SPACE A. ATM Locations: The Concessionaire will submit a written request to the City to add, delete, or relocate any ATM. The City will approve or disapprove in writing. The City will base any approval or disapproval on reasonable and justifiable grounds. The City will not change the monthly concession fee if the Concessionaire adds, deletes, or relocates any ATM during the term of this agreement. ARTICLE X CITY DIRECTED RELOCATION The Concessionaire acknowledges that the City may require the relocation of the premises, in whole or in part, if the City determines that relocation is necessary to meet the needs of the traveling public or the City. Any relocation under this article will be solely at the Concessionaire's expense. The City is not responsible for any financial loss the Concessionaire may incur because of relocation under this article. ARTICLE XI CITY'S RIGHTS OF ACCESS AND INSPECTION A. Inspection: The City may at all reasonable times enter and inspect the premises or observe the Concessionaire's performance of its obligations under this agreement, or take any action that the City is obligated to take under this agreement, or otherwise. ATM Concession 6/14/2024 -7- The Concessionaire will neither claim nor the City allow any abatement of fees if the City exercises this right. Except for an emergency, the City will take all reasonable steps to minimize interference with the Concessionaire's activity on the premises. B. The City reserves the right to enter the premises 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 terminal without liability to the Concessionaire for any damage to the premises. As a result of any entry under this section, the City is only liable for its own negligence and for returning the premises to their 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 its lease space and improvements. ARTICLE XII CITY SERVICES A. City Services: The City will perform the following: 1. Maintain the structure of the terminals, the roof, and exterior walls. 2. Provide standard terminal lighting and replacement bulbs only for those fixtures; space heating and cooling; electricity; and air ventilation. 3. Wash all exterior terminal windows as well as clean and maintain the public areas in the terminals. 4. Maintain the terminals' electrical, public address, plumbing, and heating systems in good condition and repair. However, the City may refuse to maintain any system installed by the Concessionaire and may charge the Concessionaire for any repair resulting from the Concessionaire's negligence. The Concessionaire will pay the City within 30 days of the billing date for any such repair charge. B. Hold Harmless: The Concessionaire will waive any claim and hold the City harmless for damages arising out of or resulting from any failure or interruption of utility services furnished by the City including, but not limited to, stoppage in electrical energy, space heating, or the failure or interruption of any public or passenger convenience. ARTICLE XIII LAWS AND TAXES This agreement is subject to all regulations, including those relating to leasing facilities and granting privileges at the Kenai Municipal Airport. ATM Concession 6/14/2024 19 A. Laws: At no expense to the City, the Concessionaire will comply with all federal, State of Alaska, and local laws, ordinances, regulations, and airport rules, that are either now, or in the future, in force that may apply to the business authorized under this agreement, or to the use, care, operation, maintenance, and protection of the airport, including matters of health, safety, sanitation, and pollution. The City is neither liable to the Concessionaire for any diminution or deprivation of the Concessionaire's rights due to the exercise of any authority, nor is the Concessionaire entitled to terminate the whole or any portion of this agreement by reason of the City's exercise of any authority. B. Taxes: The Concessionaire will obtain all necessary licenses and permits, pay all taxes lawfully imposed on its business, and pay any other fee or charge assessed under any applicable public statute, regulation, or ordinance. C. Disputes: In any dispute between the parties, the laws of the State of Alaska will govern. If any such dispute results in a lawsuit, the parties will bring the lawsuit before the courts of the State of Alaska. D. Claims: The Concessionaire will notify the 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, the Concessionaire will cooperate and assist in the investigation and litigation of any claim, demand, or lawsuit that affects the rights granted the Concessionaire under this agreement. ARTICLE XIV INSURANCE AND INDEMNIFICATION The following is the City's indemnification and insurance requirements: (a) All concession agreements shall include a provision requiring the concessionaire to indemnify the City from claims related to the concession and the concessionaire. (b) Except as provided in (c) of this section, all concession agreements shall require the concessionaire to provide insurance coverage of the following types and minimum coverage limits. If a concessionaire's policy contains higher limits, the City will be entitled to coverage to the extent of the higher limits. (1) Commercial General Liability, including premises, all operations, property damage, personal injury and death, broad -form contractual, with a per - occurrence limit of not less than $1,000,000 combined single limit. The policy must name the City as an additional insured. (2) Commercial Automobile Coverage with not less than $1,000,000 combined single limit per occurrence. This insurance must cover all owned, hired, and non - owned motor vehicles the concessionaire uses on the Airport. ATM Concession 0 11-MU` I)OV, (3) Workers Compensation Insurance. For all the concessionaire's employees, coverage as required under AS 23.30.045, and, where applicable, any other statutory obligations. The policy must waive subrogation against the City. (c) The City Manager may, with the counsel of the City Attorney, waive or reduce the insurance requirements under (b) of this section for a concession granted for strictly non-commercial, individual use purposes. (d) The concessionaire will provide the City with proof of insurance coverage in the form of an insurance policy or a certificate of insurance, together with proof that the premiums have been paid, showing the types and monetary limits of coverage secured. All insurance required by this section must provide that the City be notified at least 30 days prior to any termination, cancellation, or material change in the insurance coverage. (e) A concession shall include a provision allowing the City, at intervals of not less than five (5) years from the beginning date of the term of the concession and upon written notice to lessee, revise the insurance requirements required under the concession agreement. The determination to revise the insurance requirements will be made by the City Manager with the counsel of the City Attorney and shall be based on the risks relative to the lessee's operations, any insurance guidelines adopted by the City, and any change in applicable law. (g) All policies will be by a company/corporation currently rated "A -"or better by A.M. Best. ARTICLE XV CANCELLATION BY CITY A. Breach of Agreement The City may cancel this agreement and recover possession of the premises by giving the Concessionaire 30 days advance written notice if any of the following events occur, unless the breach is cured within the 30 days: The Concessionaire does not pay any rent, fee, penalty, or other charge when due under this agreement. 2. A check for any payment is returned for insufficient funds. 3. The Concessionaire uses the premises for purposes not authorized under this agreement. 4. A petition in bankruptcy is filed by or against the Concessionaire. ATM Concession -10- 6/14/2024 5. A court enters a judgment of insolvency against the Concessionaire. 6. A trustee or receiver is appointed for the Concessionaire's assets in a proceeding brought by or against the Concessionaire. 7. A lien is filed against the premises because of any act or omission of the Concessionaire and the lien is not removed, enjoined, or a bond of satisfaction of the lien is not posted within 60 days. 8. The Concessionaire does not operate the business authorized under this agreement on a continuous basis without the City's advance written approval. 9. The cessation or deterioration of any service that, in the City's determination, materially and adversely affects the service the Concessionaire is required to perform under this agreement. 10. The Concessionaire does not perform any provision or covenant under this agreement. A cancellation notice issued by the City under this article is stayed if, within the 30-day notice period, the Concessionaire begins and continues expeditious action to cure the breach in the case of a breach, which is not reasonably curable within 30 days. The determination of "expeditious action" and "not reasonably curable" is in the City's sole discretion. The Concessionaire will not construe any waiver by the City of any default on the part of the Concessionaire in the performance of any provision, covenant, or condition to be performed, kept, or observed by the Concessionaire as a waiver by the City at any time thereafter of any other default or subsequent default in performance of any provision, covenant, or condition of this agreement. After a City waiver of default in one or more instances, the City is not required to provide notice to the Concessionaire to restore or revive that time is of the essence under this agreement. The waiver of any right or obligation under this agreement is not effective nor binding on the Concessionaire unless it is in writing and signed on behalf of the City. B. Additional Rights of the City: On termination or cancellation of this agreement or on reentry, the City may regain or resume possession of the premises, may occupy the premises, and may permit any person, firm, or corporation to enter on and use the premises. The City may also repair or make any structural or other change in the premises that are necessary, in the City's sole determination, to maintain the suitability of the premises for uses similar to those granted under this agreement without affecting, altering, or diminishing the obligations of the Concessionaire under this agreement. The City will charge the Concessionaire the cost of these repairs and the Concessionaire will pay these charges within 30 days of the billing date. ATM Concession 6/14/2024 -11- C. Ownership of Equipment and Imrovements: If the City cancels this agreement due to a Concessionaire default, all of the Concessionaire's title and interest in furnishings, fixtures, equipment, and improvements installed in or adjacent to the terminal under this agreement vest in the City. The City may dispose of these items as it sees fit. The Concessionaire will reimburse the City within 60 days of the billing date for any cost the City incurs in removing and disposing of these items. D. Survival of Concessionaire's Obligations: If the City cancels or terminates this agreement, all of the Concessionaire's obligations under this agreement will survive in full force for the entire period of this agreement. Subject to the City's obligation to mitigate damages, the fees and charges become due and payable to the City to the same extent, at the same time, and in the same manner as if no termination or cancellation had occurred. The City may maintain separate actions to recover any monies then due, or at its option and at any time, may sue to recover the full deficiency. E. Surrender of Possession: The Concessionaire will yield possession of the premises to the City on the date of the termination, cancellation, or normal expiration of this agreement promptly, peaceably, quietly, and in as good order and condition as the same now or later improved by the Concessionaire or the City, reasonable use and wear -and -tear accepted. The City will allow the Concessionaire a maximum of five calendar days after the effective date of the expiration of this agreement to remove all of its personal property, equipment, furniture, and fixtures from the premises. The Concessionaire acknowledges that as part of the consideration for this agreement, all property remaining on the premises after these five calendar days becomes the sole property of the City. The City may remove, modify, sell, or destroy the property as it sees fit. The Concessionaire will pay the City within 30 days of the billing date for any cost the City incurs in property removal and disposal. ARTICLE XVI CANCELLATION BY CONCESSIONAIRE The Concessionaire may cancel this agreement by giving the City 30 days advance written notice if any of the following events occur: A. Abandonment: The permanent abandonment of the airport by all passenger airlines or the removal of all passenger airline service from the airport for a period of at least 90 consecutive days. B. Assam: The lawful assumption by the United States government or its authorized agent, of the operation, control, or use of the airport, or any substantial part of the airport, that restricts the Concessionaire from operating its business under this agreement for a period of at least 90 consecutive days. ATM Concession 6/14/2024 -12- C. Iniunction: A court of competent jurisdiction issues an injunction that prevents or restrains the use of the airport by all airlines provided the injunction remains in force for at least 90 consecutive days. ARTICLE XVII SUBSEQUENT CONTRACT A. Subsequent Contract Award: The Concessionaire acknowledges that on the expiration, cancellation, or termination of this agreement, the City may aw3ard any subsequent ATM contract by any legal means then available to the City. B. Transition Schedule at Normal Expiration: The Concessionaire understands that it is neither practical nor possible for the City to predict the exact transition schedule and procedure to best serve the needs of the traveling public and the City at the normal expiration of this agreement. The City will provide the Concessionaire a written notice of the transition plan determined by the City to best serve the needs of the traveling public and the City at least 30 days before turning the business over to a succeeding Concessionaire. The Concessionaire will diligently execute the transition plan determined by the City, abide by its time schedule, and cooperate with the City and the succeeding concessionaire in carrying out the transition plan. In any dispute between the Concessionaire and the succeeding concessionaire during the transition period, the Concessionaire will abide by the decision of the City. At the normal expiration of this agreement, the Concessionaire will either remove its furniture, fixtures, equipment, and improvements or sell them to the succeeding Concessionaire. If the Concessionaire neither sells nor removes these items within five calendar days after expiration, the City may remove, sell, modify, or destroy these items as it sees fit. The Concessionaire will reimburse the City for any cost the City incurs in removal and disposal within 30 days after the billing date. ARTICLE XVIII ASSIGNMENT OR SUBCONTRACT A. Prohibition: The Concessionaire will not mortgage, hypothecate, nor otherwise encumber or assign the concession rights created under this agreement, in whole or in part, without the advance written consent of the City. Any attempted assignment, mortgage, hypothecation, or encumbrance of the concession rights, or other violation of this article is void and will confer no right, title, or interest neither in nor to this agreement, on any assignee, mortgagee, encumbrancer, pledgee, lienholder, subtenant, successor, or purchaser. ATM Concession 6/14/2024 -13- B. Approval by City: The Concessionaire will submit three copies of any proposed assignment or subcontract to the City for advance written approval. Each copy must bear the original notarized signature of all parties. All covenants and provisions of this agreement extend to and bind the legal representatives, successors, and assignees of the parties. C. Me r er, Consolidation. or Reorganization: The City will not unreasonably withhold its consent to an assignment of this agreement by the Concessionaire to a corporation that results from a merger, consolidation, or reorganization of the Concessionaire to a corporation that purchases all or substantially all of the assets of the Concessionaire or to any corporation that controls or is controlled by or is under common control with the Concessionaire. For purposes of this section, "control" of any corporation is deemed vested in the person or persons owning more than 50 percent of the voting power for the election of the board of directors of the corporation. ARTICLE XIX GENERAL COVENANTS A. Execution by City: This agreement is not effective until signed by the City Manager of City of Kenai, or a designated representative. B. Approval by City: The City will not unreasonably withhold any approval required under this agreement. C. Notices: Any notice required under this agreement must be hand delivered, sent by registered or certified mail, or delivered by a reliable overnight delivery service to the appropriate party at the address set forth on page one of this agreement or to any other address that the parties subsequently designate in writing. All notice periods begin on the date the notice is mailed. D. Modification: The Concessionaire acknowledges that the City may modify this agreement to meet the revised requirements of federal or State grants, to operate the airport, or to conform to the requirements of any revenue bond covenant to which the City of Kenai, and may do so without formal amendment. However, a modification may neither reduce the rights or privileges granted the Concessionaire under this agreement nor cause the Concessionaire financial loss. E. Interrelationship of Provisions: All provisions of this agreement and the associated bid documents are essential parts of this agreement and are intended to be cooperative, to provide for the use of the premises, and to describe the respective rights and obligations of the parties to this agreement. ATM Concession 6/14/2024 -14- F. Validity of Parts: The remaining parts continue in full force if a court of competent jurisdiction declares any part of this agreement invalid. G. Radio Interference: At the City's request, the Concessionaire will discontinue the use of any machine or device that interferes with any government -operated transmitter, receiver, or navigation aid until the cause of the interference is eliminated. H. Discrimination: The Concessionaire will 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. The Concessionaire recognizes the right of the City to take any action necessary to enforce this covenant, including actions required by any federal or State law. I. Affirmative Action: The Concessionaire will undertake any affirmative action program required by 14 CFR, Part 23, Subpart F, to insure that the Concessionaire will not exclude any person from participating in any employment activity on the grounds of race, creed, color, national origin, or sex. The Concessionaire will not exclude any person on these grounds from participating in or receiving the services or benefits of any program or activity covered by the subpart. The Concessionaire further understands that it will require its covered sub organizations to provide assurances to the City that they will also undertake affirmative action programs and require assurances from their sub organizations. J. National Emergency: If the federal government declares a national emergency, the Concessionaire will not hold the City liable for the inability to perform any part of this agreement resulting from the national emergency. K. No Waiver: If the City does not insist in any one or more instances on the strict performance by the Concessionaire of any provision or article under this agreement, it is not a waiver or relinquishment for the future, but the provision or article will continue in full force. A City waiver of any provision or article in this agreement cannot be enforced nor relied on unless the waiver is in writing and signed on behalf of the City. L. Disasters: If in the determination of the City, fire, flood, earthquake or other casualty damages the airport so extensively as to render it untenantable, either party may elect to terminate this agreement on 30 days written notice to the other party. If this agreement is terminated because of a disaster, the City will prorate the fees payable under this agreement up to the time the airport becomes untenantable. M. Condemnation: If any proper authority condemns the airport, this agreement ends on the date the Concessionaire is required to leave the premises. The City is entitled to all condemnation proceeds. However, the City will pay the Concessionaire the portion of proceeds attributable to the fair market value of any improvements placed on the premises by the Concessionaire. ATM Concession 6/14/2024 -15- N. Quiet Enjoyment: The City covenants that it has full, unencumbered title to the airport; that it has the right and lawful authority to execute this agreement; and that the Concessionaire will have, hold, and enjoy peaceful and uninterrupted use of the premises. O. Bid Documents: The Invitation for Bids, the Instructions to Bidders, the Bid Questionnaire, the Bidder's Affidavit, the Bid Submittal form, any addenda, and the required bid deposit are part of this agreement, and each party will fully perform all provisions of these documents. P. Entire Agreement: This agreement, including any amendment, constitutes the entire agreement between the parties. No modification or amendment of this agreement is effective unless in writing and signed by both parties, except as stipulated in section D. of this article. Q. Time: Time is of the essence in the performance of all rights and obligations of the parties to this agreement. R. Laws: The Concessionaire shall ensure that all requirements of the City, State and Federal laws and regulations adopted by the City, State, Federal or any governmental legal authority and the rules and regulations promulgated by the City as same may be amended from time to time, are fully complied with at all times. ATM Concession 6/14/2024 -16- WITNESS WHEREOF, the parties have set their hands and day and year as stated in the acknowledgments below: CITY OF KENAI: A Terry Eubank — City Manager CONCESSIONAIRE: By: Concessionaire — Title STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of , 2024, Terry Eubank, 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 the City. Notary Public for Alaska My Commission Expires: STATE OF ALASKA ) ) ss THIRD JUDICIAL DISTRICT ) THIS IS TO CERTIFY that on this day of , 2024, Concessionaire, of the ATM, 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. ATM Concession Notary Public in and for Alaska My Commission Expires: -17- 6/14/2024