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HomeMy WebLinkAboutAGMT - Pinnacle Petroleum, Inc. 7 PINNACLE KaP C_:'CCCM, September 17`h, 2007 Mr. David N. Carmeny . City Manager City of Seal Beach City Hall 211 5`h Street I Seal Beach, Ca. 90740 lI VIA FAX: 562-4- 9— K)9 l qs c Y Dear Mr. Carmeny. Per the contract originally dated October 1, [998. we are hereby giving,the City of Seal Beach our 30 day notice of cancellation of the contract. Sincerelf izMi<F . y 4400 Presi, eh ' Pin sole Petrole. - 11 ( 1500 E. Pacific Coast Hwy., Suite F, Seal Beach, CA 90740 Tel (562) 795-5622 • Fax (562) 795-5272 AMENDMENT NO. 4 TO AGREEMENT BETWEEN CITY OF SEAL BEACH AND PINNACLE PETROLEUM, INC. THIS AMENDMENT NO. 4 ( "Amendment No. 4 "), dated as of March 26, 2007, is entered into by and between the CITY OF SEAL BEACH, a public body, corporate and politic ( "City ") and PINNACLE PETROLEUM, INC., a California corporation ( "PPP'). RECITALS A. PPI is currently located on a site ( "Site ") in the City of Seal Beach. To induce PPI to conduct its business in the City, the City has provided financial assistance to PPI pursuant to that certain agreement dated October 1, 1998( "Agreement "). B. In 2006, the parties previously extended the term of the Agreement. C. The parties wish to amend the Agreement to further extend the term of the Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, the parties agree to amend the Agreement as follows: Section One. Article 7 of the Agreement, as previously amended, is hereby amended by to read as follows: "ARTICLE 7 EXTENSION • Section 7.1 The Operating Term of this Agreement is hereby extended until December 31, 2007. Section 7.2 Notwithstanding any other provision of this Agreement, or any Amendment thereto, this Agreement may be terminated by either party upon 30 days' prior written notice given in the sole and absolute discretion of the terminating party." Section Two. Section 6.15 is hereby amended to read in its entirety as follows: "Section 6.15 Entire Agreement, Waivers and Amendments. This Agreement, as amended by Amendment No.1, Amendment No.2, Amedment No. 3 and Amedment No. 4, together with all attachments and exhibits and all documents to be executed and delivered pursuant to this Agreement, constitutes the entire understanding and agreement of the Parties. This Agreement, as amended by Amendments No.1, 2, 3 and 4, integrates all of the terms and conditions mentioned S7296100011Pinnacle Extention No. 4 03 -26 -07 - 1 - • 1 herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver, amendment, or modification of any provision of this Agreement must be in writing and signed by both Parties." Section Three. Except as amended herein, the terms and provisions of the Agreement shall remain in full force and effect. TO EFFECTUATE THIS AMENDMENT NO. 4, the parties have caused their duly authorized representatives to execute this agreement on the dates set forth below. City of Seal Beach / i �� B y : /,•44i ' Interim ity Manager inn:cle Petrole , • City of eal Beach Date: 3 — ono —61 Date: ATTEST: /4.■ ity Clerk 57296 \0001 \Pinnacle Extention No. 4 03 -26 -07 - 2 - • • AMENDMENT NO. 3 TO AGREEMENT BETWEEN CITY OF SEAL BEACH AND PINNACLE PETROLEUM, INC. THIS AMENDMENT NO. 3 ( "Amendment No. 3 "), dated as of January 23, 2006, is entered into by and between the CITY OF SEAL BEACH, a municipal corporation ( "City") and PINNACLE PETROLEUM, INC., a California corporation ( "PPI "). RECITALS A. PPI is currently located on a site ( "Site ") in the City of Seal Beach. To induce PPI to conduct its business in the City, the City has provided financial assistance to PPI pursuant to that certain agreement dated October 1, 1998( "Agreement "). B. In 2005, the parties previously extended the term of the Agreement. C. The parties wish to amend the Agreement to further extend the term of the Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, the parties agree to amend the Agreement as follows: Section One. Article 7 of the Agreement, as previously amended, is hereby amended by to read as follows: "ARTICLE 7 EXTENSION Section 7.1 The Operating Term of this Agreement is hereby extended until December 31, 2006. Section 7.2 Notwithstanding any other provision of this Agreement, or any Amendment thereto, this Agreement may be terminated by either party upon 30 days' prior written notice given in the sole and absolute discretion of the terminating party." Section Two. Section 6.15 is hereby amended to read in its entirety as follows: "Section 6.15 Entire Agreement, Waivers and Amendments. This Agreement, as amended by Amendment No.1, Amendment No.2 and Amendment No. 3, together with all attachments and exhibits and all documents to be executed and delivered pursuant to this Agreement, constitutes the entire understanding and agreement ofthe Parties. This Agreement, as amended by Amendments No.1, 2 and 3, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver, amendment, or modification of any , • • • . provision of this Agreement must be in writing and signed by both Parties." Section Three. Except as amended herein, the terms and provisions of the Agreement shall remain in full force and effect. TO EFFECTUATE THIS AMENDMENT NO. 3, the parties have caused their duly authorized representatives to execute this agreement on the dates set forth below. City of Seal : - . ch i By: OP 6,6--, � L sue, .1, Date: //e-4/76 / ))l/ _ . ATTEST: 'AA /.i L,1h' •ity Clerk PINNACLE EXTENSION NO 2 - 2 - • AMENDMENT NO. 2 TO AGREEMENT BETWEEN CITY OF SEAL BEACH AND PINNACLE PETROLEUM, INC. THIS AMENDMENT NO. 2 ( "Amendment No. 2 "), dated as of April 25, 2005, is entered into by and between the CITY OF SEAL BEACH, a public body, corporate and politic ( "City ") and PINNACLE PETROLEUM, INC., a California corporation ( "PPI "). RECITALS A. PPI is currently located on a site ( "Site ") in the City of Seal Beach. To induce PPI to conduct its business in the City, the City has provided financial assistance to PPI pursuant to that certain agreement dated October 1, 1998( "Agreement "). B. In 2003, the parties previously extended the term of the Agreement. C. The parties wish to amend the Agreement to further extend the term of the Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, the parties agree to amend the Agreement as follows: Section One. Article 7 of the Agreement, as previously amended, is hereby amended by to read as follows: "ARTICLE 7 EXTENSION Section 7.1 The Operating Term of this Agreement is hereby extended until December 31, 2005. Section 7.2 Notwithstanding any other provision of this Agreement, or any Amendment thereto, this Agreement may be terminated by either party upon 30 days' prior written notice given in the sole and absolute discretion of the terminating party." Section Two. Section 6.15 is hereby amended to read in its entirety as follows: "Section 6.15 Entire Agreement, Waivers and Amendments. This Agreement, as amended by Amendment No.1 and Amendment No.2, together with all attachments and exhibits and all documents to be executed and delivered pursuant to this Agreement, constitutes the entire understanding and agreement of the Parties. This Agreement, as amended by Amendments No.1 and 2, integrates all of the terms S7296 \0001 \PINNACLE EXTENSION NO 2 - 1 - • and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver, amendment, or modification of any provision of this Agreement must be in writing and signed by both Parties." Section Three. Except as amended herein, the terms and provisions of the Agreement shall remain in full force and effect. TO EFFECTUATE THIS AMENDMENT NO. 2, the parties have caused their duly authorized representatives to execute this agreement on the dates set forth below. City of Seal Beach ‘4 I I I I ■ 'A i Ali Date: cii2los ��►. �� OJ ATTEST: 1J i ity Clerk S7296 \0001 \PINNACLE EXTENSION NO 2 - 2 - • PzdL lir AMENDMENT NO. 1 TO AGREEMENT BETWEEN CITY OF SEAL BEACH AND PINNACLE PETROLEUM, INC • THIS AMENDMENT NO. 1( "'snendr:ent ") .2 ?. g , 2003, is ,uatedasof entered into by and between the CITY OF SEAL BEACH, a public body, corporate and politic ( "City") and PINNACLE PETROLEUM, INC., a California corporation ( "PPI "). RECITALS A. PPI is currently located on a site ( "Site ") in the City of Seal Beach. To induce PPI to conduct its business in the City, the City has provided financial assistance to PPl pursuant to that certain agreement dated October 1, 1998( "Agreement "). B. The parties wish to amend the Agreement to extend the term of the Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, the parties agree to amend the Agreement as follows:` Section One. The Agreement is hereby amended by adding a new Article 7 to read as follows: • "ARTICLE 7 EXTENSION Section 7.1 The Operating Term of this Agreement is hereby extended until December 31, 2004. Section 7.2 Notwithstanding any other provision of this Agreement, or any Amendment thereto, this Agreement may be terminated by either party upon 30 days' prior written notice given in the sole and absolute discretion of the terminating party." Section Two. . Section 6.15 is hereby arnended to read in its entirety as follows: "Section 6.15 Entire Agreement, Waivers and Amendments. This Agreement, as arnended by Amendment No.1, together with all attachments and exhibits and all documents to be executed and delivered pursuant to this Agreement, constitutes the entire understanding and agreement of the Parties. This Agreement, as amended by Amendment No.1, integrates . all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver, amendment, or modification of any provision of this Agreement must be in writing and signed by both Parties." S7296 \0001\pinnacle amendment no 1.00C - 1 • • 1 Section Three. Except as atnended herein, the terms and provisions of the Agreement s remain in full force and effect. b'r shall TO EFFECTUATE THIS a NO. 1, the parties have caused their duly authorized representatives to execute this agreement on the dates set forth below. City of Seal Beach By ` t t I, Date: — ?—i L� ATTEST: City Clerk 5729610001 \pinnacle amendment no 1.DOC - 2 - 0 • Section Three. Except as amended herein, the terms and provisions of the Agreement shall remain in full force and effect. TO EFFECTUATE THIS AMENDMENT NO. 1, the parties have caused their duly authorized representatives to execute this agreement on the dates set forth below. City of Seal Beach El a By: John B. Bahorski ' ► Manager lir i Date: / Q 20 ATTEST: ,.d j __ _ : I, G `City Clerk S7296 \0001 \pinnacle amendment no 1 - 2 - AGREEMENT • THIS AGREEMENT ( "Agreement "), dated as of October 1, 1998, is entered into by and between the CITY OF SEAL BEACH, a public body, corporate and politic (the "City ") and PINNACLE PETROLEUM, INC., a California corporation ( "PPI "). RECITALS A. PPI is in the business of selling petroleum products. PPI is currently contemplating the relocation of its business to a location (the "Site ") in the City of Seal Beach. B. The City recognizes that relocation of PPI's business to the Site will contribute to the economic vitality of the City, provide additional jobs, expand the City's tax base and otherwise improve economic and physical conditions in the City. C. In order to induce PPI to relocate its business to the Site, the City is willing to provide financial assistance to PPI as described in this Agreement:. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. DEFINITIONS. The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: • 1.1 Operating Term means a period of five (5) years, commencing on the date that PPI commences operating its business at the Site but in no event later than December 31, 1998. 1.2 Party means anyparty to this Agreement. The "Parties" shall be all parties to this Agreement. 1.3 Penalty Assessments means penalties, assessments, collection costs and other costs, fees or charges resulting from late or delinquent payment of Sales and Use Taxes. 1.4 Sales and Use Taxes means the taxes derived from PPI's business conducted on the Site and allocated to and received by the City pursuant to the Uniform Local Sales and Use Tax Law, commencing with California Revenue and Taxation Code Section 7200 et seq., as amended. Sales and Use Taxes shall not include Penalty Assessments, taxes levied by, collected for or allocated to the State of California, the County of Orange, any district or other entity, or any funds paid, granted • • • • or allocated to the City by the State of California, the County of Orange, any district or other entity, notwithstanding that such funds received by the City are derived or measured by such other entity based upon taxable sales. Sales and Use Taxes shall not exceed one percent (1 %) of taxable sales from PPI's business on the Site. ARTICLE 2. OBLIGATIONS OF PPI 2.1 Relocation to the Site. On or before December 31, 1998, PPI shall relocate its business to the Site. PPI may from time to time thereafter move its business to another location in the City of Seal Beach; from the date of each such move the new location in the City of Seal Beach shall be deemed to constitute the "Site" for purposes of this Agreement. 2.2 Operation of Business. At all times during -the Operating Term, PPI shall operate its business at the Site. PPI shall use the Site to operate its business substantially in accordance with the methods and practices currently used, in a manner reasonably likely to maximize the amount of Sales and Use Taxes generated from the Site. PPI shall use PPI's best efforts to cause the Site to be the point of sale for all of the business's sales. 2.3 Local, State and Federal Laws. PPI shall carry out the operation of its business in conformity with all applicable local, state and federal laws. 2.4 Anti - discrimination. PPI shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin. 2.5 Reports. Within ten (10) days after filing each report with the State Board of Equalization, PPI shall provide to the City true and correct copies of all reports filed by PPI with the State Board of Equalization in order to allow the City to preliminarily determine the amount of Sales and Use Taxes paid by PPI on account of sales from the Site; provided, however, that the City shall not be deemed to have received any Sales and Use Taxes until the City's actual receipt thereof ARTICLE 3. FINANCIAL ASSISTANCE 3.1 Payments by the City. Within fifteen (15) days after the City confirms its receipt of Sales and Use Taxes paid by PPI on account of sales from the Site during the Operating Term, the City shall pay to PPI on a quarterly basis financial assistance in an amount equal to thirty percent (30 %) of such Sales and Use Taxes. 3.2 Annual Adjustment; Disputes. As promptly after each fiscal year of the City which includes a portion of the Operating Term, the City shall determine with respect to that fiscal year the aggregate amount of Sales and Use Taxes received by the City and the aggregate amount of financial assistance payments made to PPI pursuant to Section 3.1. If for any reason (including but not limited to reporting errors or other adjustments) the aggregate amount of payments by the City with respect to that fiscal year is less than the aggregate amount payable with respect to that fiscal year, the City shall pay to PPI an adjustment payment equal to the amount of the deficiency; if for • any reason (including but not limited to reporting errors or other adjustments) the aggregate amount of payments by the City with respect to that fiscal year is less than the aggregate amount payable with respect to that fiscal year, then the amount of the excess shall be applied against the next payments due under Section 3.1, except that if any unapplied excess remains after the Operating Term, PPI shall pay the amount of the unapplied excess to the City upon demand. In the event of any dispute regarding the amounts payable under this Section 3.2, the Parties shall promptly meet and confer in good faith to attempt to resolve the. dispute. ARTICLE 4. TERMINATION; CANCELLATION 4.1 Breach and Remedies. If either Party breaches any material obligation under this Agreement and fails to cure the breach within thirty (30) days after receiving notice of the breach from the other party (unless the breach cannot be cured within thirty days, in which event the cure period shall be extended so long as the Party commences the cure within the thirty -day period and thereafter diligently pursues the cure to completion), the non - defaulting Party may terminate this Agreement, in addition to all other remedies available at law or in equity. 4.2 Cancellation Option. At any time after the second (2nd) anniversary of the commencement of the Operating Term, PPI may at its option cancel this Agreement so long as PPI terminates all of PPI's operations within twenty -five (25) miles of the City of Seal Beach. If PPI or any affiliate thereafter desires to re- establish its operations within twenty -five (25) miles of the City of Seal Beach at any time prior to the fifth (5th) anniversary of the commencement of the Operating Term, PPI shall offer to enter into a new Agreement with the City on substantially the same terms as this Agreement for a term not shorter than two (2) years. The provisions of this Section 4.2 shall survive the cancellation of this Agreement. ARTICLE 5. INDEMNIFICATION 5.1 Indemnity. The City shall indemnify and defend PPI and its directors, officers, agents and representatives to the fullest extent permitted by law against all damages, claims, losses, settlements, judgments and liabilities (including but not limited to the costs of all dispute resolution proceedings) arising from or relating to any acts or omissions of the City, any breach by the City of this Agreement or any challenges to this Agreement by any third party, subject to PPI promptly notifying the City of the filing of any such action and tendering its defense to the City within ten (10) days after receipt of service of process. ARTICLE 6. GENERAL PROVISIONS Section 6.1 Construction. The Parties acknowledge that each Party has been advised to have this Agreement reviewed by counsel, and agree that each Party and its counsel (and /or such other business and financial advisers as each Party desires) have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits hereto. • • . • Section 6.2 Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "party" include corporation, partnership, firm, trust, or association where the context so requires. Section 6.3 Time of the Essence. Time is of the essence of this Agreement and all Parties' obligations hereunder. Section 6.4 Notices, Demands and Communications Between the Parties. Notices, demands and communications between the City and PPI shall be deemed sufficiently given if (i) delivered personally, (ii) dispatched by registered or certified mail, postage prepaid, return receipt requested, or (iii) sent by nationally- recognized reputable overnight delivery service to the principal offices of the City and PPI as set forth below (or to such other address as a Party may from time to time designate by notice in accordance with this Section), and shall be deemed received upon delivery or refusal of delivery, if delivered personally, within three (3) business days after deposit of same in the United States mail, if mailed, or one (1) business day after deposit of same with a nationally recognized reputable overnight delivery service if sent by such a delivery service. To PPI: Pinnacle Petroleum, Inc. 5901 Warner Avenue Huntington Beach, CA 92649 Attn: Elizabeth McKinley, President and with copies to: To the City: City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attn: City Manager with a copy to: Richards, Watson & Gershon 333 South Hope Street 38th Floor Los Angeles, California 90071 Attn: Quinn M. Barrow Section 6.5 PPI's Representations and Warranties. PPI makes the following representations and warranties as of the date of this Agreement and agrees that such representations and warranties shall survive and continue thereafter but shall not be remade after the date of this Agreement. 6.5.1 Status. PPI is duly organized, validly existing, and is qualified to do business and is in good standing in the State of California with full power and authority to perform the obligations contemplated hereby. • 6.5.2 No Litigation. There is no litigation, action, suit, or other proceeding pending or threatened against PPI or the Site which may substantially adversely affect the validity or enforceability of this Agreement or the operation of PPI's business at the Site. 6.5.3 Authority. PPI has complied with all governmental requirements concerning its organization, existence and transaction of business with respect to the Site. PPI has the right and power to own and operate its business as contemplated in this Agreement. • 6.5.4 Enforceability. PPI has full right, power and authority to execute and deliver this Agreement and all instruments executed pursuant hereto, and to perform the undertakings of PPI contained in this Agreement and all agreements executed pursuant hereto. This Agreement and all agreements executed pursuant hereto constitute valid and binding obligations of PPI which are legally enforceable in accordance with their terms, subject to the application and effect of all governmental requirements including, without limitation, the laws of bankruptcy, creditor's rights exceptions, and equity. 6.5.5 No Breach. None of the undertakings of PPI contained in this Agreement and all agreements executed pursuant hereto violates any applicable governmental requirements, or conflicts with, or constitutes a breach or default under, any agreement by which PPI or the Site is bound or regulated. 6.5.6 Financial Information. All financial information prepared by PPI and delivered to the City by PPI, including, without limit, information relating to PPI or the Site, fairly and accurately represents such financial condition in all material respects as of the date such financial information was prepared. No material adverse change in such financial condition has occurred as of the date of this Agreement from that disclosed in such financial information. 6.5.7 Proceedings. To the best of PPI's knowledge, PPI is not in violation of any statute, law, regulation or ordinance, or of any order of any court or governmental entity the effect of which would prohibit PPI from performing its obligations hereunder. 6.5.8 Accuracy. To the best of PPI's knowledge, all documents, reports, instruments, papers, data, information and forms of evidence delivered to the City by PPI with respect to this Agreement and all agreements executed by PPI pursuant hereto are accurate and correct in all material respects, are materially complete insofar as completeness may be necessary to give the City true and accurate knowledge of the subject matter thereof, and do not contain any material misrepresentation or omission by PPI. The City may rely on such reports, documents, instruments, papers, data, information and forms of evidence without any investigation or inquiry. 6.5.9 Taxes. To the best of PPI's knowledge, PPI has filed all federal, state, county and municipal tax returns required to have been filed by PPI, and has paid all taxes which have become due pursuant to such returns. • • • Section 6.6 Warranty Against Payment of Consideration for Agreement. PPI warrants that it has not paid or given and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. Section 6.7 Release of City Officials. No member, official, agent, employee, or attorney of the City shall be personally liable to PPI, or any successor in interest of PPI, in the event of any default or breach by the City or for any amount which may become due to PPI or its successors, or on any obligations under the terms of this Agreement. PPI hereby waives and releases any claim it may have personally against the members, officials, agents, employees, consultants, or attorneys of the City with respect to any default or breach by the City or for any amount which may become due to PPI or its successors, or on any obligations under the terms of this Agreement. PPI makes such release with full knowledge of Civil Code Section 1542, and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable. California Civil Code Section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Section 6.8 Attorneys' Fees. If any Party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing Party in any such action shall be entitled to its reasonable attorneys' fees to be paid by the losing Party as fixed by the court. If the City, without fault, is made a party to any litigation instituted by or against PPI, then PPI shall defend the City and the City against and save the City and the City harmless from all costs and expenses including attorney's fees incurred in connection with such litigation. Section 6.9 Venue. In the event of any litigation hereunder, all such actions shall be instituted in the Superior Court of the County of Orange, State of California, or in an appropriate municipal court in the County of Orange, State of California or an appropriate Federal District Court in the Southern District of California. Section 6.10 Applicable Law. The laws of the State of California shall govern the • interpretation and enforcement of this Agreement. Section 6.11 Successors and Assigns. The provisions hereof shall be binding upon, and inure to the benefit of, the City and PPI and their successors and assigns, as the case or context may require; provided, however, that PPI may not assign its rights or obligations under this Agreement without the prior written consent of the City. The City will not unreasonably withhold its consent to an assignment if (i) the assignment results in merely a change in the form of ownership of PPI, or (ii) . the assignment is made in conjunction with a sale of substantially all of the business of PPI and the buyer maintains its principal executive office at the Site. Section 6.12 No Joint Venture. Nothing contained herein shall be construed to render the City in any way or for any purpose a partner, joint venturer, or associated in any relationship with PPI, nor shall this Agreement be construed to authorize either Party to act as agent for the other. Section 6.13 Records. The City or any representative or designee thereof may at any time during normal business hours, upon reasonable prior notice, examine the books and records of PPI, or any officer, employee, agent, contractor, affiliate, related person, assignee or franchisee, to the extent that such books and records relate, directly or indirectly, to the determination of Sales and Use Taxes generated from the Site. PPI shall keep the originals or true and correct copies, at PPI's choice, of all such records at the Site or at another location in Orange County, 'California, reasonably approved by City. Section 6.14 Waiver. The waiver by City or PPI of any breach by the other Party of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant, or condition herein contained. Either Party's acceptance of any performance by the other Party after the due date of such performance shall not be deemed to be a waiver by either Party of any preceding breach by the other Party of any term, covenant, or condition of this Agreement, regardless of such Party's knowledge of such preceding breach at the time of acceptance of such performance. Section 6.15 Entire Agreement, Waivers and Amendments. This Agreement, together with all attachments and exhibits hereto and all documents to be executed and delivered pursuant to this Agreement, 'constitutes the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver, amendment, or modification of any provision of this Agreement must be in writing and signed by both Parties. Section 6.16 Execution in Counterparts. This Agreement, may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Section 6.17 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and year first above written. CITY OF SEAL BEACH, a public body, corporate and politic ( "City ") By: 1 Kei Till, City Manager ATTEST: OdcccO Jo M. Yeo, City Clerk PINNACLE PETROLEUM, INC., a California corporation ( "PPI ") • By: 1 . a_ • .J' ,a_ LREP7 Elizabeth cKinley, President