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FY2022-07 One Year Contract With Matson Navigation Company Of Alaska, Inc. For Metals Processing And HaulingContract # FY2022-07 Matson Navigation Company of Alaska, LLC. SERVICE CONTRACT NO. A0081-5 This Contract (hereafter referred to as "Contract") is by and between Matson Navigation Company of Alaska, LLC, a water carver, (hereafter referred to as "Carrier") and Kodiak Island Borough (hereafter referred to as "Shipper"). THIS CONTRACT HAS BEEN EXECUTED BELOW BY THE DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY (Signature) (Date) 10/8/2021 Name: Daniel R. Downes Title: Vice President, Pricing Matson Navigation Company of Alaska, LLC 555 121' Street Oakland, CA 94607 Fax. No. (510) 628-7365 "LLIA 7-- -z-1 (Signature) (Date) Name: David Conrad, 164e,vIm %04 1\ Title: Manager -Acting Offical Kodiak Island Borough Manager's Office 710 Mill Bay Road Kodiak, AK 99615 Tel. No. 907-486-9343 Affiliates of Shipper Covered by this Contract: (Name and location) Jeffrey Johnson, Landfill Supervisor, 907-486-9345 Patricia Valerio, EF Secretary, pvalerio@kodiakak.us 907-486-9343 In consideration of the mutual covenants set forth herein, Carrier and Shipper (hereafter may be referred to individually as a "Party" or collectively as "Parties") hereby agree as follows: I. ENTIRE CONTRACT This Contract, including all attachments hereto, constitutes the full understanding of the Parties and complete and exclusive statement of the terms of the Contract. The Contract shall replace and supersede any oral or written agreements between the Parties that deal with the same subject matter as is referenced herein. II. TERM The term of this Contract is set forth in Appendix A. III. CARGO, PAYMENT, AND SERVICE COMMITMENTS A. This Contract covers the transportation of certain cargo moving in Carrier -provided containers in the U.S. noncontiguous domestic trade with Alaska, as more specifically designated below. The cargo shall be transported pursuant to the rates, terms, and conditions set forth herein and in Appendix A and Attachment 1 hereto, and subsequent revisions thereto, which are incorporated herein by reference and made a part of this Contract. B. During the ter<in of this Contract, Shipper shall tender to Carrier for transportation a minimum volume of Contract cargo as provided for in Appendix A ("Minimum Volume Commitment"). For the purpose of calculating volume of cargo tendered under this Contract, the shipment shall be regarded as having been tendered according to the date entered by Carrier on the bill of lading. For each container of Contract cargo tendered to Carver by Shipper for transportation under this Contract, the rates set forth in Appendix A shall apply based on the nature of the cargo, equipment type, transportation service provided (e.g., Carrier's marine terminal to Carrier's marine terminal), and origin and destination. Shipper or shipper's agent is responsible for indicating this Contract number on its shipping instructions submitted to the Carrier for each shipment applicable to this Contract. However, the Carrier shall reserve the right to permit cargoes not so noted to count toward the Minimum Volume Commitment upon proof of inadvertent omission. C. Except as otherwise expressly set forth herein, all cargo transported pursuant to this Contract shall be subject to all charges, surcharges, arbitraries, assessorials, and rules, including the terms of Carrier's bill of lading , set forth in Carrier's tariff applicable to the geographic scope of this Contract and published at www.matson.com, which tariff, including its charges, surcharges, arbitraries, assessorials, rules and Carrier's bill of lading terms, is incorporated herein by reference, made a part of this Contract, and may be amended by Carrier from time to time (hereafter referred to as "Governing Tariff(s)"). Matson Navigation Company of Alaska, LLC. Kodiak Island Borough Service Contract A0081-5 D. The terns of Carrier's bill of lading, covering individual shipments under this Contract shall apply to shipments hereunder. In the event of a conflict among or between the terms of this Contract, Governing Tariff(s), and/or Carrier's bill of lading, the terms of Carrier's bill of lading shall prevail over the terms of this Contract and/or Governing Tariff(s), and the terms of this Contract shall prevail over the terms of the Governing Tariff(s) other than Carrier's bill of lading terms. E. Shipper shall book Contract cargo with Carrier a reasonable amount of time in advance of tender of cargo, and, if Shipper needs to cancel a booking, Shipper shall do so on a timely basis. Shipper shall space cargo bookings as evenly as possible with Carrier during the term of this Contract to enable Carrier to allocate sufficient space and equipment to satisfy Shipper's requirements. Shipper shall safely and securely load Contract cargo in and unload cargo from Carrier -provided containers at the expense of Shipper. F. Shipper shall be named as the "Shipper" and/or "Consignee" on all Carrier bills of lading covering transportation under this Contract. All cargo moving under this Contract shall move on a non-negotiable bill of lading. G. Carrier shall be compensated for the transportation of Contract cargo under this Contract pursuant to the rates, charges, terms and conditions set forth in this Contract. Provided Shipper has a current Credit Agreement executed with Carrier, Shipper shall pay Carrier all rates and charges due for each shipment under this Contract within 30 calendar days from the date of actual sailing of vessel for each such shipment, and within 30 calendar days of the actual sailing of vessel date for each such shipment in the case of demurrage and detention charges in connection with such shipments. Whenever Shipper fails to make timely payment, at Carrier's option Shipper shall prepay Carrier on a cash basis for the transportation of all future cargo moving under this Contract until Shipper brings its payments under this Contract within the payment period hereunder. Further, if payment is not made, Carrier shall have a lien which includes the right to retain custody of any and all cargo and/or equipment owned or tendered to Carrier by Shipper until all past due charges are paid in full. H. Carrier shall transport the Minimum Volume Commitment set forth in Article III.B. under this Contract on terms and conditions set forth in this Contract, as timely booked by Shipper against available space. At Carrier's option, and subject to availability of space, Carrier shall transport Contract cargo tendered by Shipper in excess of the Minimum Volume Commitment during the term of this Contract pursuant to the terms and conditions of this Contract. The Service Commitment under this Contract is subject to the schedules and service patterns of Carrier. IV. FORCE MAJEURE Notwithstanding any other provision of this Contract, to the extent that either Party may fail to satisfy any obligation imposed under this Contract (except for a payment or confidentiality obligation) as a result of "Force Majeure", performance of this Contract shall, to that extent, be deemed to have been frustrated and no cause of action for breach or liability shall arise as a consequence thereof. For the purposes of this Article, "Force Majeure" means strikes, work stoppages, lockouts or exceptional circumstances arising from the threat thereof, Acts of God, State or the Public Enemy, including but not limited to war, acts of nations, acts of governments, acts of independent states, riots, civil disorder or insurrection, embargo, participation in the US Defense Department Emergency Preparedness Program, or other disruption of or interference with trade, marine disaster, fire or other casualty. The Party suffering the Force Majeure shall diligently attempt to remove such cause or causes and shall promptly notify the other Party of its extent and probable duration. If the Party suffering the Force Majeure is unable to remove the cause or causes within 30 days, the other Party shall have the right at its option, to terminate, without imposition of penalty or obligation to pay damages, this entire Contract or any portion thereof caused by the Force Majeure event. In case of Force Majeure, the Minimum Volume Commitment and Carrier's service commitments will be reduced on a pro rata basis for the period or periods (including Saturdays, Sundays and legal holidays) during which shipments cannot be made. V. LIQUIDATED DAMAGES If, for any cause other than a cause covered by Article IV or XII of this Contract, the Minimum Volume Commitment set forth in Article III.B. of this Contract is not satisfied during the term of this Contract, Shipper shall pay Carrier liquidated damages in lieu of all other damages which would be difficult if not impossible to ascertain with reasonable certainty. Liquidated damages are determined by multiplying the difference between the number of container loads actually tendered to Carrier and the Minimum Volume Commitment, by the amount set forth in Appendix A and designated as "liquidated damages". Shipper shall pay such liquidated damages to Carrier within 30 calendar days following written notification by Carrier. VI. CONFIDENTIALITY Except to the extent required by law, by request of a government or agency thereof, or request of a contractor pursuant to contractual obligation with the Carrier, the Parties shall at all times keep confidential the fact of this Contract, the terms and conditions of this Contract, and all documents and information provided to a Party under the terms of this Contract, and shall not disclose any such information to any third party (not including a parent, subsidiary, or affiliated company), except with the prior written consent of the other Party. Notwithstanding the foregoing, the obligations under this Article shall not apply to: (i) information that, at the time of disclosure, is, or after disclosure becomes part of, the public domain other than as a consequence of a breach of this Contract; (ii) information that was known or otherwise available to a Party prior to its disclosure to the other Party; or (iii) information that is independently developed by either Party. Upon breach of any obligation under this Article, the non -disclosing Party shall have the right to terminate this Contract effective immediately; this shall be the sole remedy for such breach. Matson Navigation Company of Alaska, LLC. Kodiak Island Borough Service Contract A0081-5 VII. WAIVER OF RIGHTS AND REMEDIES UNDER ICC TERMINATION ACT Shipper and Carrier, pursuant to section 14101(b) of the ICC Termination Act of 1995, hereby waive all rights and remedies under the Act for the transportation of cargo under this Contract; provided, however, that Shipper and Carrier do not waive the provisions governing registration, insurance, or safety fitness. VIII. TERMINATION In addition to termination provided for in Articles II, IV and VI, this Contract may be terminated by the mutual agreement of the Parties, or upon notice by the terminating Party to the other Party, which notice shall specify the reason for the termination and the effective date of such termination, upon or after the occurrence of the following events: (i) by either Party due to a breach by the other Party of any of the terms or conditions of this Contract which is not corrected within 30 days after receipt of written notification thereof, (ii) by either Party if any petition filed or action respecting the other Party directly in a reorganization, arrangement, creditors composition, readjustment, liquidation, dissolution, bankruptcy or similar relief under any other present or future United States, or other statute, law or regulation, whether or not resulting in the appointment of a receiver, liquidator, assignee, trustee, custodian, or other similar official, and the continuation of any such decree or order is unstayed and in effect for a period of 30 consecutive days; or (iii) by either Party upon the making by the other Party of an assignment for the benefit of creditors, or the admission by such Party in writing of its inability to pay its debts generally as they become due, or the taking of action by such Party in furtherance of any such action. Termination of this Contract shall not terminate or otherwise affect any accrued obligations of one Party to the other Party under this Contract which have arisen prior to such termination. IX. NOTICES All notices required to be given under this Contract shall be in writing and deemed given when hand -delivered or by documented overnight delivery service, or sent by telecopy, telefax, or other electronic transmission service, provided a confirmation copy is also sent no later than the next business day by first class mail, return receipt requested, to the Party to whom the same is directed at its address as set forth below or to such other address as such Party shall designate by notice under this Article: If to Carrier: Matson Navigation Company of Alaska, LLC 555 121 Street Oakland, CA 94607 Attention: Vice President, Pricing If to Shipper: Name and address listed on Signatory 11 page unless a difference listing below X. ASSIGNABILITY Any assignment of this Contract without the prior written consent of the other Party shall be void, except that Carrier may assign this Contract to a successor or affiliated company without prior consent. Notice of such assignment shall be provided by Carrier to Shipper within five business days of the assignment. This Contract shall be binding on the Parties hereto and their respective, permitted successors and assigns. XI. MODIFICATIONS Except as otherwise provided, no modification of any of the terms or conditions of this Contract shall be effective unless in writing, signed by an authorized representative of each Party, and specifically stating that it is such modification. Modifications may be made via electronic mail, subject to mutual consent by an authorized representative of each Party. XII. WAIVER -DEFAULT The failure or delay of either Party to insist in any instance upon strict performance of any of the provisions of this Contract, or to take advantage of any of such Party's rights hereunder, shall not be construed as a waiver of such provisions or the relinquishment of such rights, but the same shall continue in full force and effect. Should either Party be in default with respect to any of the terms or conditions of this Contract, the non -defaulting Party may, without prejudice to any other legal remedy, defer further performance hereunder until such default is remedied. If the non -defaulting Party defers further performance hereunder, the non -defaulting Party's commitment shall be reduced for the period or periods (Saturdays, Sundays and holidays included) of such deferral of performance. XIII. COUNTERPARTS This Contract may be executed simultaneously in one or more counterparts, including by means of telefaxed signature pages, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. XIV. RECORD KEEPING In order to substantiate that the Shipper has met the minimum volume requirement as stated in Item IILB., Carrier may request copies of the bills of lading of each shipment. Upon request, bills of lading must be submitted to Carrier in a timely fashion. Matson Navigation Company of Alaska, LLC. Kodiak Island Borough Service Contract A0081-5 APPENDIX A MINIMUM VOLUME COMMITMENT: 15 loads LIQUIDATED DAMAGES: $400 per Container DURATION: Effective Date: October 3, 2021 Expiration Date: October 1, 2022 RATES: (SOUTHBOUND) Fro 1) Scrap Metal, to include crushed cars n: Kodiak, AK Door Destination SVC Rate per CWT Minimum Weight EQ Notes Tacoma, WA Door-CY $ 3.08 44,000 lbs. 40FR Tacoma, WA Door-CY $ 3.80 44,000 lbs. 400T SURCHARGES: A. FUEL SURCHARGES: Rates contained in this Appendix and addenda thereto are subject to fuel surcharges per Rules 137, 138 and 139 as filed in the Governing Tariffs. B. TERMINAL HANDLING CHARGES: Rates contained in this Appendix and Addenda thereto are subject to Rule 960 of the Governing Tariff unless otherwise specified. C. HAZARDOUS MATERIALS SURCHARGE: Rates contained in this Schedule and Addenda thereto are subject to Rule 540 as filed in the Governing Tariff. OTHER: D. GENERAL RATE INCREASES: Except as otherwise provided herein, base freight rates, arbitraries and other special charges provided in this Schedule A and Addenda thereto shall not be subject to General Rate Increases as filed in the Governing Tariff. E. ELECTRONIC SIGNATURES: The Parties may execute or sign this Contract and any subsequent amendments and Contract -related communications by electronic signature where such signatures are considered valid under applicable law. For this purpose, "electronic signature" means an electronic symbol or text attached to or logically associated with the Contract and executed or adopted by a person with the intent and authority to sign this Contract, amendments or related communications. Such electronic signatures may be transmitted by fax, web interface or email, and must contain textual or other indication that the Party is signing the Contract, amendment or related communication. Execution of this Contract or any subsequent amendment by electronic or any other form of legal signature constitutes agreement to be bound by the terms of this Contract or amendment.