[Federal Register Volume 64, Number 171 (Friday, September 3, 1999)]
[Notices]
[Pages 48420-48432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23029]
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DEPARTMENT OF THE INTERIOR
National Park Service
Standard Concession Contract; Revision
ACTION: Proposed revision of the National Park Service Standard
Concession Contract.
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SUMMARY: The National Park Service (NPS) authorizes business entities
to operate concessions in areas of the national park system. The
agreements embodying these authorizations consist primarily of standard
language that incorporate NPS terms and conditions established by law
and prudent contract administration. In 1998, Public Law 105-391 was
enacted which in many significant ways affects the content of
concession contracts to be entered into after its effective date.
Accordingly, NPS proposes to amend its existing standard concession
contract to conform to the requirements of Public Law 105-391 and to
otherwise make improvements to the standard form. NPS, although not
legally required to do so, seeks public comments on the proposed
standard concession contract to assist it in the development of a final
version as a matter of public policy.
DATES: NPS will accept written comments on the proposed standard
contract on or before November 2, 1999.
ADDRESSES: Comments should be addressed to: Concession Program Manager,
National Park Service, 1849 ``C'' Street, NW, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Wendelin Mann, Concession Program,
National Park Service, 1849 ``C'' Street, NW, Washington, DC 20240
(202/565-1219).
Supplementary Information: Public Law 105-391, enacted on November 13,
1998, among other matters, amended the statutory policies and
procedures under which NPS operated its concession program. The new law
requires adoption of new regulations governing the award, content and
management of concession contracts. On June 30, 1999, NPS published for
public comment
[[Page 48421]]
proposed regulations implementing the new law. The proposed standard
concession contract set forth in this notice reflects the requirements
of the new law and the concomitant requirements of the proposed
regulations. It also reflects a variety of improvements NPS wishes to
make to its standard concession contract, including a new
organizational structure for the sake of clarity. NPS is not publishing
for public comment the various exhibits that will be attached to the
standard contract. The exhibits only encompass legally mandated
provisions, ministerial procedures under the terms of the standard
concession contract, or documents that will substantially vary from
contract to contract. These exhibits will be publicly available after
adoption of the standard contract language. NPs plans to adopt both the
new regulations and the new standard concession contract
contemporaneously after due consideration of all public comments
received on both documents.
NPS, after adoption of the new regulations and the new standard
contract, also intends to develop and adopt a ``short-form'' concession
contract that will be used for smaller concession operations that do
not involve the concessioner obtaining a compensable interest in real
property located on park area lands.
United States Department of the Interior
National Park Service
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[Name of Area]
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[Site]
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[Type of Service]
Concession Contract No.------------------------------------------------
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[Name of Concessioner]
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[Address, including email address and phone number]
Doing Business As
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Covering the Period---------------------------------------------------
through----------------------------------------------------------------
Concession Contract
Table of Contents
Identification of the Parties
Purpose and Authorities
Sec. 1 Term of Contract
Sec. 2 Definitions
Sec. 3 Services and Operations
A. Required and Authorized Visitor Services
B. Operation and Quality of Operation
C. Operating Plan
D. Merchandise and Services
E. Rates
F. Impartiality as to Rates and Services
Sec. 4 Concessioner Personnel
A. Employees
B. Employee Housing, Meals, and Recreation
Sec. 5 Legal, Regulatory, Policy Compliance
A. Legal, Regulatory, Policy Compliance
B. Notice
C. How and Where to Send Notice
Sec. 6 Environmental and Cultural Protection
A. Environmental Protection
B. Protection of Cultural and Archeological Resources
Sec. 7 Interpretation of Area Resources
A. Concessioner Obligations
B. Director Review of Content
C. Provision of Interpretation Not Exclusive
Sec. 8 Concession Facilities Used In Operation by Concessioner
A. Assignment of Concession Facilities
B. Concession Facilities Withdrawals
C. Effect of Withdrawal
D. Right of Entry
E. Personal Property
F. Condition of Concession Facilities
G. Utilities Provided by the Director
H. Utilities Not Provided by the Director
Sec. 9 Construction or Installation of Concession Facilities
A. Construction of Real Property Improvements
B. Removal of Concession Facilities
C. Leasehold Surrender Interest
D. Concession Facilities Improvement Program
Sec. 10 Maintenance
A. Maintenance Obligation
B. Maintenance Plan
C. Maintenance Reserve
Sec. 11 Fees
A. Franchise Fee
B. Payments Due
C. Reconsideration of Franchise Fee
Sec. 12 Indemnification and Insurance
A. Indemnification
B. Insurance in General
C. Commercial Public Liability
D. Property Insurance
Sec. 13 Bonds and Liens
A. Bonds
B. Liens
Sec. 14 Accounting Records and Reports
A. Accounting System
B. Annual Financial Report
C. Other Financial Reports
Sec. 15 Other Reporting Requirements
A. Insurance Certification
B. Environmental Reporting
C. Miscellaneous Reports and Data
Sec. 16 Suspension and Termination
A. Suspension
B. Termination
C. Bankruptcy or Insolvency
D. Requirements in the Event of Termination
Sec. 17 Compensation
A. Just Compensation
B. Compensation for Contract expiration or termination
C. Compensation when Contract Terminated for Default
D. Procedures for Establishing the Value of a Leasehold
Surrender Interest
E. Compensation for Personal Property
Sec. 18 Assignment, Sale or Encumbrance of Interests
Sec. 19 General Provisions
Exhibits
Exhibit ``A'': Nondiscrimination
Exhibit ``B'': Assigned Land, Real Property Improvements
Exhibit ``C'': Assigned Government Personal Property
Exhibit ``D'': Leasehold Surrender Interest as of the Effective
Date of This Contract
Exhibit ``E'': Insurance Requirements
Exhibit ``F'': Maintenance Plan
Exhibit ``G'': Operating Plan
Exhibit ``H'': Construction, Installation Approval Procedures
Exhibit ``X'': 36 CFR Part 51
[Corporation]
This Contract is made and entered into by and between the United
States of America, acting in this matter by the Director of the
National Park Service, through the Regional Director of the ________
Region, hereinafter referred to as the ``Director,'' and, a corporation
organized and existing under the laws of the State of ____________
doing business as hereinafter referred to as the ``Concessioner'':
[Partnership]
This Contract is made and entered into by and between the United
States of America, acting in this matter by the Director of the
National Park Service, through the Regional Director of the ________
Region, hereinafter referred to as the ``Director'', and of
____________, ____________, and ____________ of, partners, doing
business as, pursuant to a partnership agreement dated ________, with
the principal place of business at ________, hereinafter referred to as
the ``Concessioner'':
[Sole Proprietorship]
This Contract made and entered into by and between the United
States of America, acting in this matter by the Director of the
National Park Service, through the Regional Director of the ________
Region, hereinafter referred to as the ``Director,'' and, an individual
of, doing business as ____________, hereinafter referred to as the
``Concessioner'':
WITNESSETH
That Whereas, [Name of Park, Recreation Area, etc.] is administered
by the Director as a unit of the national park system to conserve the
scenery and the natural and historic objects and the wild life therein,
and to provide for the public enjoyment of the same in such manner as
will leave such Area unimpaired for the enjoyment of future
generations; and
Whereas, to accomplish these purposes, the Director has determined
that certain visitor services are necessary and appropriate for the
public use and enjoyment of the Area and
[[Page 48422]]
should be provided for the public visiting the Area; and
Whereas, the Director desires the Concessioner to establish and
operate these visitor services at reasonable rates under the
supervision and regulation of the Director;
Now, Therefore, pursuant to the authority contained in the Acts of
August 25, 1916 (16 U.S.C. 1, 2-4), and November 13, 1998 (Pub. L. 105-
391), and other laws that supplement and amend the Acts, the Director
and the Concessioner agree as follows:
Sec. 1 Term of Contract
This Concession Contract No. ________ (``Contract'') shall be
effective as of ____________, and shall be for the term of
[approximately] ________ (____) years from ________, 20______, [if
the Concessioner satisfactorily completes the Concession Facilities
Improvement program described in Section 9(e) of this Contract. If
the Concessioner fails to complete this program to the satisfaction
of the Director within the time specified, then this Contract shall
be for the term of ________ (______) years from ________.]
Sec. 2 Definitions
The following terms used in this Contract will have the following
meanings, which apply to both the singular and the plural forms of the
defined terms:
(a) ``Applicable Laws'' means the laws of Congress governing the
Area, including, but not limited to, the rules, regulations,
requirements and policies promulgated under those laws, whether now in
force, or amended, enacted or promulgated in the future, including,
without limitation, federal, state and local laws, rules, regulations,
requirements and policies governing nondiscrimination, protection of
the environment and/or protection of public health and safety.
(b) ``Area'' means the property within the boundaries of [Name of
Park Unit].
(c) ``Capital Improvement'' shall have the meaning set forth in 36
CFR Part 51 as of the effective date of this Contract.
(d) ``Concession Facilities'' shall mean all Area lands assigned to
the Concessioner under this Contract and all real property improvements
assigned to or constructed by the Concessioner under this Contract. The
United States retains title and ownership to all Concession Facilities.
(e) ``Director'' means the Director of the National Park Service
and his duly authorized representatives unless otherwise indicated.
(f) ``Exhibit'' or ``Exhibits'' shall mean the various exhibits,
which are attached to this Contract, each, of which is hereby made a
part of this Contract.
(g) ``Gross Receipts'' means the total amount received or realized
by, or accruing to, the Concessioner from all sales for cash or credit,
of services, accommodations, materials, and other merchandise made
pursuant to the rights granted by this Contract, including gross
receipts of subconcessioners as herein defined, commissions earned on
contracts or agreements with other persons or companies operating in
the Area, and gross receipts earned from electronic media sales, but
excluding:
(i) Intracompany earnings on account of charges to other
departments of the operation (such as laundry);
(ii) Charges for employees' meals, lodgings, and transportation;
(iii) Cash discounts on purchases;
(iv) Cash discounts on sales;
(v) Returned sales and allowances;
(vi) Interest on money loaned or in bank accounts;
(vii) Income from investments;
(viii) Income from subsidiary companies outside of the Area;
(ix) Sale of property other than that purchased in the regular
course of business for the purpose of resale;
(x) Sales and excise taxes that are added as separate charges to
approved sales prices, gasoline taxes, fishing license fees, and
postage stamps, provided that the amount excluded shall not exceed the
amount actually due or paid government agencies;
(xi) Receipts from the sale of handcrafts that have been approved
for sale by the Director as constituting authentic American Indian,
Alaskan Native, Native Samoan, or Native Hawaiian handicrafts.
All monies paid into coin operated devices, except telephones,
whether provided by; the Concessioner or by others, shall be included
in gross receipts. However, only revenues actually received by the
Concessioner from coin-operated telephones shall be included in gross
receipts. All revenues received from charges for in-room telephone or
computer access shall be included in gross receipts.
(h) ``Gross receipts of subconcessioners'' means the total amount
received or realized by, or accruing to, subconcessioners from all
sources, as a result of the exercise of the rights conferred by
subconcession contracts hereunder without allowances, exclusions or
deductions of any kind or nature whatsoever.
(i) ``Leasehold Surrender Interest'' shall have the meaning set
forth in 36 CFR Part 51 as of the effective date of this Contract.
(j) ``Leasehold Surrender Interest Value'' or the ``value'' of a
Leasehold Surrender Interest shall have the meaning set forth in 36 CFR
Part 51 as of the effective date of this Contract.
(k) ``Major Rehabilitation'' shall have the meaning set forth in 36
CFR Part 51 as of the effective date of this Contract.
(l) ``Possessory Interest'' shall have the meaning set forth in 36
CFR Part 51.
(m) ``Real Property Improvements'' means real property other than
land, including, but not limited to, capital improvements.
(n) ``Superintendent'' means the manager of the Area.
(o) ``Visitor services'' means the accommodations, facilities and
services that the Concessioner is required and authorized to provide by
section 3(a) of this Contract.
Sec. 3 Services and Operations
(a) Required and Authorized Visitor Services
During the term of this Contract, the Director requires and
authorizes the Concessioner to provide the following visitor services
for the public within the Area:
(1) Required Visitor Services. The Concessioner is required to
provide the following visitor services during the term of this
Contract:
[Provide detailed description of required services. Broad
generalizations such as ``any and all facilities and services
customary in such operations'' or ``such additional facilities and
services as may be required'' are not to be used. A provision
stating ``The Concessioner may provide services incidental to the
operations authorized hereunder at the request and written approval
of the Director'' is acceptable.]
(2) Authorized Visitor Services. The Concessioner is authorized but
not required to provide the following visitor services during the term
of this Contract:
[Provide detailed description of authorized services.]
(b) Operation and Quality of Operation
The Concessioner shall provide, operate and maintain the required
and authorized visitor services and any related support facilities and
services in accordance with this Contract to such an extent and in a
manner considered satisfactory by the Director. The Concessioner shall
provide the plant, personnel, equipment, goods, and commodities
necessary for providing, operating and maintaining the required and
authorized visitor services in accordance with this Contract. The
Concessioner's authority to provide visitor services under the terms of
this Contract is non-exclusive.
[[Page 48423]]
(c) Operating Plan
The Director, acting through the Superintendent, shall establish
and revise, as necessary, specific requirements for the operations of
the Concessioner under this Contract in the form of an Operating Plan
(including, without limitation, a risk management program, that must be
adhered to by the Concessioner). The initial Operating Plan is attached
to this Contract as Exhibit ``G.'' The Director in his discretion,
after consultation with the Concessioner, may make modifications to the
initial Operating Plan provided that these modifications shall not be
inconsistent with the terms and conditions of the main body of this
Contract.
(d) Merchandise and Services
(1) The Director reserves the right to determine and control the
nature, type and quality of the visitor services described in this
Contract, including, but not limited to, the nature, type, and quality
of merchandise, if any, to be sold or provided by the Concessioner
within the Area.
(2) All material, regardless of media format (i.e., printed,
electronic, broadcast media), provided to the public by the
Concessioner, including promotional material, must be approved in
writing by the Director prior to use. All such material will identify
the Concessioner as an authorized Concessioner of the National Park
Service, Department of the Interior.
(3) The Concessioner, where applicable, will develop and implement
a plan satisfactory to the Director that will assure that all gift
merchandise, if any, to be sold or provided reflects the purpose and
significance of the Area, including, but not limited to, merchandise
that reflects the conservation of the Area's resources or the Area's
geology, wildlife, plant life, archeology, local Native American
culture, local ethnic culture, and historic significance.
(e) Rates
All rates and charges to the public by the Concessioner for visitor
services shall be reasonable and appropriate for the type and quality
of facilities and/or services required and/or authorized under this
Contract. The Concessioner's rates and charges to the public must be
approved by the Director in accordance with rate approval procedures
and guidelines promulgated by the Director from time to time.
(f) Impartiality as to Rates and Services
(1) In providing visitor services, the Concessioner must require
its employees to observe a strict impartiality as to rates and services
in all circumstances. The Concessioner shall comply with all Applicable
Laws relating to nondiscrimination in providing visitor services to the
public including, without limitation, those set forth in Exhibit ``A.''
(2) The Concessioner may grant complimentary or reduced rates under
such circumstances as are customary in businesses of the character
conducted under this Contract. However, the Director reserves the right
to review and modify Concessioner's complimentary or reduced rate
policies and practices.
(3) The Concessioner will provide Federal employees conducting
official business reduced rates for lodging, essential transportation
and other specified services necessary for conducting official business
in accordance with guidelines established by the Director.
Complimentary or reduced rates and charges shall otherwise not be
provided to Federal employees by the Concessioner except to the extent
that they are equally available to the general public.
Sec. 4 Concessioner Personnel
(a) Employees
(1) The Concessioner shall provide all personnel necessary to
provide the visitor services required and authorized by this Contract.
(2) The Concessioner shall comply with all Applicable Laws relating
to employment and employment conditions, including, without limitation,
those identified in Exhibit ``A.''
(3) The Concessioner shall ensure that its employees are hospitable
and exercise courtesy and consideration in their relations with the
public. The Concessioner shall have its employees who come in direct
contact with the public, so far as practicable, wear a uniform or badge
by which they may be identified as the employees of the Concessioner.
(4) The Concessioner shall establish pre-employment screening,
hiring, training, employment, termination and other policies and
procedures for the purpose of providing visitor services through its
employees in an efficient and effective manner and for the purpose of
maintaining a healthful, law abiding, and safe working environment for
its employees. The Concessioner shall conduct appropriate background
reviews of applicants for employment to assure that they conform to the
hiring policies established by the Concessioner.
(5) The Concessioner shall hire, to the greatest extent possible,
people who are both interested in serving the public in a national park
environment and interested in being positive contributors to the park's
purpose.
(6) The Concessioner shall ensure that its employees are provided
the training needed to provide quality visitor services and to maintain
up-to-date job skills.
(7) The Concessioner shall review the conduct of any of its
employees whose action or activities are considered by the Concessioner
or the Director to be inconsistent with the proper administration of
the Area and enjoyment and protection of visitors and shall take such
actions as are necessary to fully correct the situation.
(8) The Concessioner shall maintain, to the greatest extent
possible, a drug free environment, both in the workplace and in any
employee housing within the Area.
(9) The Concessioner shall publish a statement notifying employees
that the unlawful manufacture, distribution, dispensing, possession, or
use of a controlled substance is prohibited in the workplace and in the
Area, and specifying the actions that will be taken against employees
for violating this prohibition. In addition, the Concessioner shall
establish a drug-free awareness program to inform employees about the
danger of drug abuse in the workplace and the Area, the availability of
drug counseling, rehabilitation and employee assistance programs, and
the Concessioner's policy of maintaining a drug-free environment both
in the workplace and in the Area.
(10) The Concessioner shall take appropriate personnel action, up
to and including termination or requiring satisfactory participation in
a drug abuse or rehabilitation program which is approved by a Federal,
State, or local health, law enforcement or other appropriate agency,
for any employee that violates the prohibition on the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance.
(b) Employee Housing, Meals and Recreation
(1) If the Concessioner is required to provide employee housing
under this Contract, the housing must be in good condition and must
meet employee needs. The Concessioner's charges to its employees for
this housing must be reasonable.
(2) If the visitor services required and/or authorized under this
Contract are located in a remote or isolated area, the Concessioner
shall provide adequate
[[Page 48424]]
employee recreational facilities and services.
Sec. 5 Legal, Regulatory, Policy Compliance
(a) Legal, Regulatory and Policy Compliance
This Contract, operations thereunder by the Concessioner and the
administration of it by the Director shall be subject to all Applicable
Laws. The Concessioner must comply with all Applicable Laws in
fulfilling its obligations under this Contract at the Concessioner's
sole cost and expense. Certain Applicable Laws governing protection of
the environment are further described in this Contract. Certain
Applicable Laws relating to nondiscrimination in employment and
providing accessible facilities and services to the public are further
described in this Contract.
(b) Notice
The Concessioner shall give the Director immediate written notice
of any violation of Applicable Laws and, at its sole cost and expense,
must promptly rectify any such violation.
(c) How and Where To Send Notice
All notices required by this Contract, shall be in writing and
shall be served on the parties at the following addresses. The mailing
of a notice by registered or certified mail, return receipt requested,
shall be sufficient service. Notices sent to the Director shall be sent
to the following address:
Superintendent
Park name
Address
Attention:
Notices sent to the Concessioner shall be sent to the following
address:
Concessioner
Address
Attention:
Sec. 6 Environmental and Cultural Protection
(a) Environmental Protection
(1) In addition to complying with all Applicable Laws pertaining to
the protection of natural resources within the area, the Concessioner
will conduct its operation, construction, maintenance, acquisition, and
provision of visitor services in a manner that prevents or reduces
environmental degradation and that promotes the use of environmentally
beneficial products. The Concessioner will develop, pursuant to
guidelines provided by the Director, and carry out, to the satisfaction
of the Director, a documented environmental monitoring program or
programs to ensure that park resources affected by concessioner
activities under this Contract are not unduly impaired. The
Concessioner shall be financially responsible for environmental audits
that may be required by the Director for each three-year period of this
Contract.
(2) The Concessioner shall obtain the Director's approval prior to
using any chemicals, pesticides, any hazardous or toxic substance,
material, or waste of any kind, including building materials such as
asbestos, or any contaminant, pollutant, petroleum, petroleum product
or petroleum by-product.
(3) The Concessioner shall monitor, test, maintain, repair,
upgrade, replace, remove, or mitigate, in accordance with Applicable
Laws and in accordance with the requirements of the Director:
(i) Any discharge, release or threatened release (whether solid,
liquid or gaseous in nature) of any hazardous or toxic substance,
material, or waste of any kind, including building materials such as
asbestos, or any contaminant, pollutant, petroleum, petroleum product
or petroleum by-product on or to the Area, including soil, surface
water or groundwater;
(ii) Any materials, equipment, and facilities associated with such
discharge, release or threatened release; or
(iii) Any materials, equipment and facilities used in the handling,
storage, disposal, transport or other use of any such hazardous or
toxic substance, material, or waste of any kind, including building
materials such as asbestos, or any contaminant, pollutant, petroleum,
petroleum product or petroleum by-product.
(4) The Concessioner shall timely contact, notify and/or otherwise
confer with appropriate federal, state and/or local agencies with
respect to any reporting obligation arising out of Concessioner's
operations under this Contract and the Concessioner shall
simultaneously provide notice of such contact to the Director and allow
the Director the opportunity to participate in any such proceedings.
(5) The Concessioner shall give the Director immediate notice of
any discharge, release or threatened release (whether solid, liquid or
gaseous in nature) of any hazardous or toxic substance, material, or
waste of any kind, including building materials such as asbestos, or
any contaminant, pollutant, petroleum, petroleum product or petroleum
by-product.
(6) The Concessioner shall give the Director immediate written
notice of any threatened or actual notice of violation of any federal,
state or local law, rule, regulation, requirement or policy relating to
or governing the use, handling, storage, disposal, transport, presence,
acceptable concentration, or remediation of any hazardous or toxic
substance, material, or waste of any kind, including building materials
such as asbestos, or any contaminant, pollutant, petroleum, petroleum
product or petroleum by-product received by Concessioner.
(7) The Concessioner, at its sole cost and expense, shall promptly
rectify any discharge or release as set forth in this section or any
threatened or actual violation as set forth in this section, including,
but not limited to, payment of any fines or penalties imposed thereon.
(8) The Concessioner shall indemnify the United States in
accordance with section 12 of the Contract from losses, damages or
judgements (including, without limitation, fines and penalties) and
expenses (including, without limitation, attorneys fees and experts
fees) arising out of the activities of the Concessioner pursuant to
this section. Such indemnification shall survive termination of this
Contract.
(9) If the Concessioner does not promptly rectify the discharge or
release (whether solid, liquid or gaseous in nature) of any hazardous
or toxic substance, material, or waste of any kind, including building
materials such as asbestos, or any contaminant, pollutant, petroleum,
petroleum product or petroleum by-product, the Director may, in its
sole discretion and after notice to Concessioner, take any such action
the Director deems necessary to minimize, remediate, or otherwise clean
up such release or discharge, and recover any costs associated with
such action from the Concessioner upon demand.
(10) Even if not specifically required by Applicable Laws, the
Concessioner shall comply with directives of the Director to clean up
or remove any materials, product or by-product used, handled, stored,
disposed, transported onto or into the Area by the Concessioner to
ensure that the Area remains in good condition.
(11) The Concessioner shall be responsible for managing weeds,
harmful insects, rats, mice and other pests on all lands and
improvements assigned to the Concessioner under this Contract. All such
weed and pest management activities shall be in accordance with
guidelines established by the Director.
[[Page 48425]]
(c) Protection of Cultural and Archeological Resources
The Concessioner shall ensure that any protected sites and
archeological resources within the Area are not disturbed or damaged by
the Concessioner, including the Concessioner's employees,
subcontractors or agents, except in accordance with Applicable Laws,
and only with the prior approval of the Director. Discoveries of any
archeological resources by Concessioner shall be promptly reported to
the Director. The Concessioner shall cease work or other disturbance
which may impact any protected site or archeological resource until the
Director grants approval, upon such terms and conditions as the
Director deems necessary, to continue such work or other disturbance.
Sec. 7 Interpretation of Area Resources
(a) Concessioner Obligations
(1) The Concessioner shall provide all visitor services in a manner
that is consistent with and supportive of the interpretive themes,
goals and objectives of the Area.
(2) The Concessioner may assist in Area interpretation at the
request of the Director to enhance visitor enjoyment of the Area. Any
additional visitor services that may result from this assistance must
be recognized in writing through written amendment of Section 3 of this
Contract.
(b) Director Review of Content
The Concessioner must submit the proposed content of any
interpretive programs, exhibits, materials or displays to the Director
for review and approval prior to offering such programs, exhibits or
displays to Area visitors.
(c) Provision of Interpretation Not Exclusive
Notwithstanding any provision of this Contract to the contrary, the
Director retains the right to provide Area interpretation, including
without limitation, the conduct of interpretive programs and the sale
of interpretive materials, directly or through cooperative or other
agreements with third parties, as the Director determines to be
necessary or appropriate.
Sec. 8 Concession Facilities Used in Operations by Concessioner
(a) Assignment of Concession Facilities
(1) The Director hereby assigns the following Concession Facilities
to the Concessioner for the purposes of this Contract:
(i) Certain parcels of Area land as described in Exhibit B upon
which, among other matters, the Concessioner may be authorized to
construct real property improvements; and
(ii) Certain real property improvements described in Exhibit B in
existence as of the effective date of this Contract, as may be modified
from time to time to include additional real property improvements
completed in accordance with the terms and conditions of this Contract.
(2) The Director shall from time to time amend Exhibit B to reflect
changes in Concession Facilities assigned to Concessioner, including,
without limitation, real property improvements completed in accordance
with the terms and conditions of this Contract.
(b) Concession Facilities Withdrawals
The Director may withdraw all or portions of these Concession
Facilities assignments at any time during the term of this Contract if:
(1) The withdrawal is for the purpose of enhancing or protecting
Area resources or visitor enjoyment or safety;
(2) The operations utilizing the assigned Concession Facilities
have been terminated or suspended by the Director; or
(3) Land or real property improvements assigned to the Concessioner
are no longer necessary for the concession operation.
(c) Effect of Withdrawal
Any permanent withdrawal of assigned Concession Facilities which
the Director considers as essential for the Concessioner to provide the
visitor services required by this Contract will be treated by the
Director as a termination of this Contract pursuant to Section 16. The
Concessioner will be compensated pursuant to Section 17 for the value
of any Leasehold Surrender Interest it may have, if any, in permanently
withdrawn Concession Facilities. No other compensation is due the
Concessioner in these circumstances.
(d) Right of Entry
The Director shall have the right at any time to enter upon or into
the Concession Facilities assigned to the Concessioner under this
Contract for any purpose he may deem necessary for the administration
of the Area.
(e) Personal Property
(1) Personal Property Provided by the Concessioner. The
Concessioner shall provide all personal property, including removable
equipment, furniture and goods, necessary for its operations under this
Contract.
(2) Personal Property Provided by the Government. The Director may
provide certain items of government personal property and equipment for
the Concessioner's use in the performance of this Contract. The
Director hereby assigns government personal property and equipment
listed in Exhibit C to the Concessioner as of the effective date of
this Contract. This Exhibit C will be modified from time to time by the
Director as items may be withdrawn or additional items added. The
Concessioner shall be accountable to the Director for the government
personal property and equipment assigned to it and shall be responsible
for maintaining the property and equipment as necessary to keep it in
good and operable condition. If the property ceases to be serviceable,
it shall be returned to the Director for disposition.
(f) Condition of Concession Facilities
Concessioner has inspected the Concession Facilities and any
assigned government personal property, is thoroughly acquainted with
their condition, and accepts the Concession Facilities, and any
assigned government personal property, ``as is.''
(g) Utilities Provided by the Director
The Director may provide utilities to the Concessioner for use in
connection with the operations required and/or authorized under this
Contract when available at rates to be fixed by the Director under
applicable guidelines.
(h) Utilities Not Provided by the Director
If the Director does not provide these utilities, the Concessioner
shall, with the written approval of the Director and under any
requirements that the Director shall prescribe, secure necessary
utilities at its own expense from sources outside the Area or shall
install the utilities within the Area with the written permission of
the Director, subject to the following conditions:
(1) Any water rights deemed necessary by the Concessioner for use
of water on Area or other federal lands must be acquired at the
Concessioner's expense in accordance with applicable State procedures
and law. Upon expiration or termination of this Contract for any
reason, the Concessioner must assign these water rights to the United
States without compensation, and these water rights will become the
property of the United States;
(2) If requested by the Director, the Concessioner must provide to
the
[[Page 48426]]
Director any utility service provided by the Concessioner under this
section to such extent as will not unreasonably restrict anticipated
use by the Concessioner. Unless otherwise agreed by the Concessioner
and the Director, the rate per unit charged the Director for such
service shall be approximately the average cost per unit of providing
such service; and
(3) All appliances and machinery to be used in connection with the
privileges granted in this Section, as well as the plans for location
and installation of such appliances and machinery, shall first be
approved by the Director.
Sec. 9 Construction or Installation of Real Property Improvements
(a) Construction of Real Property Improvements
The Concessioner may construct or install upon lands assigned to
the Concessioner under this Contract only those real property
improvements that are determined by the Director to be necessary and
appropriate for the conduct by the Concessioner of the visitor services
required and/or authorized under this Contract. Construction or
installation of real property improvements may occur only after the
written approval by the Director of their location, plans, and
specifications. The form and content of the application and the
procedures for such approvals, as may be modified by the Director from
time to time, are set forth in Exhibit H. All real property
improvements constructed or installed by Concessioner will immediately
become the property of the United States and be considered Concession
Facilities.
(b) Removal of Real Property Improvements
(1) The Concessioner may not remove, dismantle, or demolish real
property improvements without the prior approval of the Director.
(2) Any salvage resulting from the authorized removal, severance or
demolition of a Capital Improvement shall be the property of the
Concessioner. Any salvage resulting from the authorized removal,
severance or demolition of real property improvements other than a
Capital Improvement shall be the property of the United States.
(3) In the event that an assigned real property improvement is
removed, abandoned, demolished, or substantially destroyed and no other
improvement is constructed on the site, the Concessioner, at its
expense, shall promptly, upon the request of the Director, restore the
site as nearly as practicable to its original condition.
(c) Leasehold Surrender Interest
(1) This Contract hereby provides the Concessioner, subject to all
applicable definitions, requirements and limitations of 36 CFR Part 51
as it existed as of the effective date of this Contract, a Leasehold
Surrender Interest in Capital Improvements constructed by the
Concessioner under the terms of this Contract, including, but not
limited to, those Capitol Improvements constructed as part of the
Concession Facilities Improvement Program and those Capitol
Improvements which result from the major rehabilitation, as defined by
36 CFR Part 51, of an existing real property improvement. Upon
completion of a major rehabilitation by the Concessioner, an existing
real property improvement assigned to the Concessioner in which the
Concessioner had no Leasehold Surrender Interest prior to the major
rehabilitation shall be considered as a Capital Improvement for all
purposes of this Contract.
(2) This Contract also provides the Concessioner a Leasehold
Surrender Interest in real property improvements resulting from
possessory interest obtained under the terms of a possessory interest
concession contract where required by 36 CFR Part 51 as it existed as
of the effective date of this Contract. Exhibit D to this Contract
describes the real property improvements in which the Concessioner has
such a Leasehold Surrender Interest and states the value of this
Leasehold Surrender Interest as of the effective date of this Contract.
(3) The Concessioner shall not obtain Leasehold Surrender Interest
under this Contract except as may be provided in 36 CFR Part 51 as it
exists as of the effective date of this Contract. Among other matters,
no Leasehold Surrender Interest shall be obtained as a result of
expenditures from the Maintenance Reserve described in this Contract
and this Contract does not provide a Leasehold Surrender Interest as a
result of expenditures for repair and maintenance of Concession
Facilities of any nature.
(d) Concession Facilities Improvement Program
(1) The Concessioner shall undertake and complete an improvement
program (hereinafter ``Concession Facilities Improvement Program'')
costing not less than $________ as adjusted for each project to reflect
par value in the year of actual construction in accordance with the
appropriate indexes of the Department of Commerce's ``Construction
Review.''
(2) The Concession Facilities Improvement Program shall include:
[Provide detailed description of the Concession Facilities
Improvement Program.]
(3) The Concessioner shall commence construction under the
Concession Facilities Improvement Program on or before ________ in a
manner that demonstrates to the satisfaction of the Director that the
Concessioner is in good faith carrying the Concession Facilities
Improvement Program forward reasonably under the circumstances. No
construction may begin until the Concessioner receives written approval
from the Director of plans and specifications in accordance with
Exhibit H. During the period of construction, the Concessioner shall
provide the Director with such evidence or documentation, as may be
satisfactory to the Director, to demonstrate that the Concession
Facilities Improvement Program duly is being carried forward. The
Concessioner shall complete and have the improvements and buildings
available for public use on or before ______.
Sec. 10 Maintenance
(a) Maintenance Obligation
The Concessioner shall be solely responsible for maintenance,
repairs, housekeeping, and groundskeeping for all Concession Facilities
to the satisfaction of the Director.
(b) Maintenance Plan
For these purposes, the Director, acting through the
Superintendent, shall undertake appropriate inspections, and shall
establish and revise, as necessary, a Maintenance Plan consisting of
specific maintenance requirements which shall be adhered to by the
Concessioner. The initial Maintenance Plan is set forth in Exhibit F.
The Director in his discretion may modify the Maintenance Plan from
time to time after consultation with the Concessioner. Such
modifications shall not be inconsistent with the terms and conditions
of the main body of this Contract.
(c) Maintenance Reserve
[No Maintenance Reserve is included in this Contract.] or
(1) The Concessioner shall establish and manage a Maintenance
Reserve. The funds in this Reserve shall be used to carry out, on a
project basis, repair and maintenance of Concession Facilities that are
non-recurring within a seven year time frame. Such projects may include
repair or replacement of
[[Page 48427]]
foundations, building frames, window frames, sheathing, subfloors,
drainage, rehabilitation of building systems such as electrical,
plumbing, built-in heating and air conditioning, roof replacement and
similar projects. Projects will be carried out by the Concessioner as
the Director shall direct in writing in advance of any expenditure
being made and in accordance with project proposals approved by the
Director. No projects may be commenced until the Concessioner receives
written approval from the Director.
(2) Projects paid for with funds from the Maintenance Reserve will
not include routine, operational maintenance of facilities or
housekeeping and groundskeeping activities. Nothing in this section
shall lessen the responsibility of the Concessioner to carry out the
maintenance and repair of Concession Facilities as required by this
Contract from Concessioner funds exclusive of the funds contained in
the Maintenance Reserve.
(3) The Concessioner shall establish within its accounting system a
Maintenance Reserve. The Concessioner shall debit to this Reserve,
within fifteen (15) days after the last day of each month that the
Concessioner operates a sum equal to: ______ percent (____%) of the
Concessioner's Gross Receipts for the previous month. If the
Concessioner fails to make timely debits to the Maintenance Reserve,
the Director may terminate this Contract for default or require the
Concessioner to post a bond in an amount equal to the estimated annual
Maintenance Reserve allocation, based on the preceding year's Gross
Receipts.
(4) The balance in the Maintenance Reserve shall be available for
projects in accordance with the Reserve's purpose. For all expenditures
made for each project from the Maintenance Reserve, the Concessioner
shall maintain auditable records including invoices, billings, canceled
checks, and other documentation satisfactory to the Director.
(5) Maintenance Reserve funds shall not be used for a major
rehabilitation as defined in this Contract. The Concessioner shall
obtain no ownership, Leasehold Surrender Interest, or other compensable
interest as a consequence of the expenditure of Maintenance Reserve
funds.
(6) Any Maintenance Reserve funds not duly expended by the
Concessioner as of the termination or expiration of this Contract shall
be immediately remitted by the Concessioner to the Director as an
additional franchise fee under section 11 of this Contract.
Sec. 11 Fees
(a) Franchise Fee
(1) For the term of this Contract, the Concessioner shall pay to
the Director for the privileges granted under this Contract a franchise
fee equal to ________ percent (____%) of the Concessioner`s Gross
Receipts for the preceding year or portion of a year.
(2) Neither the Concessioner nor the Director shall have a right to
an adjustment of the fees except as provided below. The Concessioner
has no right to waiver of the fees under any circumstances.
(b) Payments Due
(1) The franchise fee shall be due on a monthly basis at the end of
each month and shall be paid by the Concessioner in such a manner that
the Director shall receive payment within fifteen (15) days after the
last day of each month that the Concessioner operates. This monthly
payment shall include the franchise fee equal to the specified
percentage of gross receipts for the preceding month.
(2) The Concessioner shall pay any additional fee amounts due at
the end of the operating year as a result of adjustments at the time of
submission of the Concessioner's Annual Financial Report. Overpayments
shall be offset against the following year's fees.
(3) All franchise fee payments consisting of $10,000 or more, shall
be deposited electronically by the Concessioner using the Treasury
Financial Communications System.
(c) Interest
An interest charge will be assessed on overdue amounts for each
thirty (30) day period, or portion thereof, that payment is delayed
beyond the fifteen (15)-day period provided for above. The percent of
interest charged will be based on the current value of funds to the
United States Treasury as published quarterly in the Treasury Fiscal
Requirements Manual. The Director may also impose penalties for late
payment to the extent authorized by Applicable Law.
(d) Reconsideration of Franchise Fee
(1) The Concessioner may request, in the event the Concessioner
considers that extraordinary, unanticipated changes have occurred after
the effective date of this Contract, a reconsideration and possible
subsequent adjustment of the franchise fee established in this section.
For the purposes of this section, the phrase ``extraordinary,
unanticipated changes'' shall mean extraordinary, unanticipated changes
from the conditions existing or reasonably anticipated before the
effective date of this Contract which have or will significantly affect
the probable value of the privileges granted to the Concessioner by
this Contract. For the purposes of this section, the phrase ``probable
value'' means a reasonable opportunity for net profit in relation to
capital invested and the obligations of this Contract.
(2) The Concessioner must make a request for a reconsideration by
mailing, within thirty (30) days from the date that the Concessioner
becomes aware, or should have become aware, of the possible
extraordinary, unanticipated changes, a written notice to the Director
that includes a description of the possible extraordinary,
unanticipated changes and why Concessioner believes they will
significantly effect the probable value of the privileges granted by
this Contract. A government official subordinate to the Director may
also initiate such a reconsideration by so notifying the Concessioner
in accordance with this section.
(3) If a franchise fee reconsideration is timely initiated in this
manner, the Director shall make a written determination as to whether
extraordinary, unanticipated changes exist. If a subordinate official
to the Director initiated the reconsideration, an official appointed by
the Director other than the subordinate initiating official shall make
the determination. If the Director determines that extraordinary,
unanticipated changes have not occurred, the reconsideration process
shall terminate without an adjustment to the franchise fee. If the
Director determines that extraordinary, unanticipated changes did
occur, the Concessioner and the Director will undertake a good faith
negotiation as to an appropriate adjustment of the franchise fee.
(4) The negotiation will last for a period of sixty (60) days from
the date the Director makes his or her determination that extraordinary
unanticipated changes occurred. If the negotiation results in agreement
as to an adjustment (up or down) of the franchise fee within this
period, the franchise fee will be adjusted accordingly, retroactive to
the date for which the notice of reconsideration was given.
(5) If the negotiation does not result in agreement as to the
adjustment of the franchise fee within this sixty (60) day period, then
either the Concessioner or the Director may request binding arbitration
to determine the adjustment to franchise fee in accordance with this
section. Such a request for arbitration
[[Page 48428]]
must be made by mailing notice to the other party within fifteen (15)
days of the expiration of the sixty (60) day period.
(6) Within thirty (30) days of receipt of such a notice, the
Concessioner and the Director shall each select an arbiter. These two
arbiters, within thirty (30) days of selection, must agree to the
selection of a third arbiter to complete the arbitration panel. The
third arbiter shall be the chairperson of the panel. The Director and
the Concessioner shall share equally the expenses of the third arbiter
and other common expenses associated with the arbitration. Within
thirty (30) days of the selection of the third arbiter, the arbitration
panel must hold an informal meeting with the Concessioner and the
Director. At such meeting, the Concessioner and the Director shall be
permitted to present their written and oral views and any accompanying
documentation as to their position on an adjustment to the franchise
fee and the members of the panel may pose questions to the Concessioner
and the Director. Non-adjudicative procedures only shall be used in the
arbitration proceedings. The arbitration panel shall not have the power
to compel the production of documents or witnesses and shall not
receive or take into account information or documents developed by the
Concessioner or the Director for pre-negotiation or negotiation
purposes. All actions related to the arbitration are subject to the
applicable requirements of 36 CFR Part 51 as it may be amended from
time to time.
(7) The arbitration panel shall consider the written submissions
and any oral presentations made by the Concessioner and the Director
and provide its decision on an adjusted franchise fee (up, down or
unchanged) that is consistent with the probable value of the privileges
granted by this Contract within sixty (60) days of the informal
meeting.
(8) Any adjustment to the franchise fee resulting from this Section
shall be effective retroactive to the date for which the notice of
reconsideration was given and for the remaining term of this Contract,
subject to the results of any further reconsideration.
(9) If an adjustment to the franchise fee results in higher fees,
the Concessioner will pay all back franchise fees due (with accrued
interest) at the time of the next regular franchise fee payment. If an
adjustment results in lower franchise fees, the Concessioner may
withhold the difference from future franchise fee payments until such
time as the Concessioner has recouped the overpayment. Any payments
made in arrears by the Concessioner shall include interest at a percent
based on the current value of funds to the United States Treasury as
published quarterly in the Treasury Fiscal Requirements Manual.
(10) Any adjustment to the franchise fee will be embodied in an
amendment to this Contract.
(11) During the pendency of the process described in this Section,
the Concessioner shall continue to make the established franchise fee
payments required by this Contract.
Sec. 12 Indemnification and Insurance
(a) Indemnification
The Concessioner agrees to assume liability for and does hereby
agree to save, hold harmless, protect, defend and indemnify the United
States of America, its agents and employees from and against any and
all liabilities, obligations, losses, damages or judgments (including
without limitation penalties and fines), claims, actions, suits, costs
and expenses (including without limitation attorneys fees and experts
fees) of any kind and nature whatsoever on account of fire or other
peril, bodily injury, death or property damage, or claims for bodily
injury, death or property damage of any nature whatsoever, and by
whomsoever made, in any way relating to or arising out of the
activities of the Concessioner, his employees, subcontractors or agents
under this Contract. This indemnification shall survive the termination
or expiration of this Contract.
(b) Insurance in General
(1) The Concessioner shall obtain and maintain during the entire
term of this Contract at its sole cost and expense, the types and
amounts of insurance coverage necessary to fulfill the obligations of
this Contract. The Director shall approve the types and amounts of
insurance coverage purchased by the Concessioner.
(2) The Director will not be responsible for any omissions or
inadequacies of insurance coverages and amounts in the event the
insurance purchased by the Concessioner proves to be inadequate or
otherwise insufficient for any reason whatsoever.
(3) At the request of the Director, the Concessioner shall at the
time insurance is first purchased and annually, thereafter, provide the
Director with a Certificate of Insurance that accurately details the
conditions of the policy as evidence of compliance with this section.
The Concessioner shall provide the Director thirty (30) days advance
written notice of any material change in the Concessioner's insurance
program hereunder.
(c) Commercial Public Liability
(1) The Concessioner shall provide commercial general liability
insurance against claims arising out of or resulting from the acts or
omissions of the Concessioner or its employees in carrying out the
activities and operations required and/or authorized under this
Contract.
(2) This insurance shall be in the amount commensurate with the
degree of risk and the scope and size of the activities required and/or
authorized under this Contract, as more specifically set forth in
Exhibit E. Furthermore, the commercial general liability package shall
provide the coverages and limits described in Exhibit E.
(3) All liability policies shall specify that the insurance company
shall have no right of subrogation against the United States of America
and shall provide that the United States of America is named an
additional insured.
(4) From time to time, as conditions in the insurance industry
warrant, the Director may modify Exhibit E to revise the minimum
required limits or to require additional types of insurance.
(d) Property Insurance
(1) In the event of damage or destruction, the Concessioner will
repair or replace those Concession Facilities and personal property
utilized by the Concessioner in the performance of the Concessioner's
obligations under this Contract.
(2) For this purpose, the Concessioner shall provide fire and
extended insurance coverage on Concession Facilities in amounts that
the Director may require during the term of the Contract. The values
currently in effect are set forth in Exhibit E. This Exhibit will be
revised at least every three (3) years, or earlier if there is a
substantial change in value of Concession Facilities.
(3) Commercial property insurance shall provide for the
Concessioner and the United States of America to be named insured as
their interests may appear.
(4) In the event of loss, the Concessioner shall use all proceeds
of such insurance to repair, rebuild, restore or replace Concession
Facilities and or personal property utilized in the Concessioner's
operations under this Contract, as directed by the Director. Policies
may not contain provisions limiting insurance proceeds to in situ
replacement. The lien provision of
[[Page 48429]]
Section 13 shall apply to such insurance proceeds.
(5) Insurance policies that cover Concession Facilities shall
contain a loss payable clause approved by the Director which requires
insurance proceeds to be paid directly to the Concessioner without
requiring endorsement by the United States. The use of insurance
proceeds for repair or replacement of Concession Facilities will not
alter their character as properties of the United States and,
notwithstanding any provision of this Contract to the contrary, the
Concessioner shall gain no ownership, Leasehold Surrender Interest or
other compensable interest as a result of the use of these insurance
proceeds.
(6) The commercial property package shall include the coverages and
amounts described in Exhibit E.
Sec. 13 Bonds and Liens
(a) Bonds
The Director may require the Concessioner to furnish appropriate
forms of bonds acceptable to the Director conditioned upon faithful
performance of its obligations under this Contract, in such form and in
such amount as the Director may deem adequate.
(b) Lien
As additional security for the faithful performance by the
Concessioner of its obligations under this Contract, and the payment to
the Government of all damages or claims that may result from the
Concessioner's failure to observe any such obligations, the Government
shall have at all times the first lien on all assets of the
Concessioner within the Area, including, but not limited to, all
personal property of the Concessioner used in performance of the
Contract hereunder and any Leasehold Surrender Interest of the
Concessioner.
Sec. 14 Accounting Records and Reports
(a) Accounting System
(1) The Concessioner shall maintain an accounting system under
which its accounts can be readily identified with its system of
accounts classification. Such accounting system shall be capable of
providing the information required by this Contract, including but not
limited to the Concessioner's repair and maintenance obligations. The
Concessioner's system of accounts classification shall be directly
related to the Concessioner Annual Financial Report Form issued by the
Director.
(2) If the Concessioner's annual gross receipts are $250,000 or
more, the Concessioner must use the accrual accounting method.
(3) In computing net profits for any purposes of this Contract, the
Concessioner shall keep its account in such manner that there can be no
diversion or concealment of profits or expenses in the operations
authorized hereunder by means of arrangements for the procurement of
equipment, merchandise, supplies or services from sources controlled by
or under common ownership with the Concessioner or by any other device.
(b) Annual Financial Report
(1) The Concessioner shall submit annually as soon as possible but
not later than ninety (90) days after the last day of its fiscal year a
financial statement for the preceding fiscal year or portion of a year
as prescribed by the Director (``Concessioner Annual Financial
Report'').
(2) If the annual gross receipts of the Concessioner are in excess
of $1,000,000, the financial statements shall be audited by an
independent Certified Public Accountant in accordance with the
Generally Accepted Auditing Standards (GAAS) and procedures promulgated
by the American Institute of Certified Public Accountants.
(3) If annual gross receipts are between $250,000, and $1,000,000,
the financial statements shall be reviewed by an independent Certified
Public Accountant in accordance with the Generally Accepted Auditing
Standards (GAAS) and procedures promulgated by the American Institute
of Certified Public Accountants.
(4) If annual gross receipts are less than $250,000, the financial
statements may be prepared without involvement by an independent
Certified Public Accountant, unless otherwise directed by the Director.
(c) Other Financial Reports
(1) Balance Sheet. Within ninety (90) days of the execution of this
Contract or its effective date, whichever is later, the Concessioner
shall submit to the Director a balance sheet as of the beginning date
of the term of this Contract. The balance sheet shall be audited or
reviewed, as determined by the gross receipts, by an independent
Certified Public Accountant. The balance sheet shall be accompanied by
a schedule that identifies and provides details for all capital
improvements in which the Concessioner claims a Leasehold Surrender
Interest. The schedule must describe these capital improvements in
detail showing for each such capital improvement the date acquired,
useful life, cost and book value.
(2) Statements of Reserve Activity The Concessioner shall submit
annually, not later than ________ (____) days after the end of the
Concessioner's accounting year, a statement reflecting total activity
in the Maintenance Reserve for the preceding accounting year. The
statement must reflect monthly inflows and outflows on a project by
project basis.
Sec. 15 Other Reporting Requirements
The following describes certain other reports required under this
Contract:
(a) Insurance Certification
As specified in Section 12, at the time insurance is first
purchased, and annually thereafter, the Concessioner shall provide the
Director with a Certificate of Insurance for all insurance coverages
related to its operations under this Contract. The Concessioner shall
give the Director thirty (30) days advance written notice of any
material change in its insurance program.
(b) Environmental Reporting
The Concessioner shall submit a quarterly report on any matters
related to the Concessioner's environmental compliance requirements
under this Contract.
(c) Miscellaneous Reports and Data
The Director from time to time may require the Concessioner to
submit other reports and data regarding its performance under the
Contract or otherwise, including, but not limited to, operational
information.
Sec. 16 Suspension and Termination
(a) Suspension
The Director may temporarily suspend operations under this Contract
in whole or in part when necessary for administrative purposes or to
enhance or protect Area resources, visitor enjoyment or safety. No
compensation of any nature shall be due the Concessioner in the event
of a suspension of operations, including, but not limited to,
compensation for losses based on lost income, profit, or the necessity
to make expenditures as a result of the suspension.
(b) Termination
(1) The Director may terminate this Contract in whole or part at
any time when necessary for the purpose of enhancing or protecting Area
resources or visitor enjoyment or safety.
(2) The Director may terminate this Contract in whole or part for
default if the Director determines that the
[[Page 48430]]
Concessioner has breached any requirement of this Contract, including,
but not limited to, the requirement to maintain and operate visitor
services to the satisfaction of the Director, the requirement to
provide only visitor services required or authorized by the Director,
the requirement to pay the established franchise fee, and the
requirement to comply with Applicable Laws.
(3) In the event of a breach of the Contract, the Director will
provide the Concessioner an opportunity to cure by providing written
notice to the Concessioner of the breach. In the event of a monetary
breach, the Director will give the Concessioner a fifteen (15) day
period to cure the breach. If the breach is not cured within that
period, then the Director may terminate the Contract for default. In
the event of a nonmonetary breach, if the Director considers that the
nature of the breach so permits, the Director will give the
Concessioner thirty (30) days to cure the breach, or to provide a plan,
to the satisfaction of the Director in his sole discretion, to cure the
breach over a specified period of time. If the breach is not cured
within this specified period of time, the Director may terminate the
Contract for default. Notwithstanding this provision, repeated breaches
of the same nature shall be grounds for termination for default without
a cure period. In the event of a breach of any nature, the Director may
suspend the Concessioner's operations as appropriate in accordance with
Section 16(a).
(4) The Director may terminate this Contract upon the filing or the
execution of a petition in bankruptcy by or against the Concessioner, a
petition seeking relief of the same or different kind under any
provision of the Bankruptcy Act or its successor, an assignment by the
Concessioner for the benefit of creditors, a petition or other
proceeding against the Concessioner for the appointment of a trustee,
receiver, or liquidator, or, the taking by any person or entity of the
rights granted by this Contract or any part thereof upon execution,
attachment or other process of law or equity. The Director may
terminate this Contract if the Director determines that the
Concessioner is unable to perform the terms of Contract due to
bankruptcy or insolvency.
(5) Termination of this Contract for any reason shall be by written
notice to the Concessioner.
(c) Notice of Bankruptcy or Insolvency
The Concessioner must give the Director notice fifteen (15) days
prior to filing any petition in bankruptcy, filing any petition seeking
relief of the same or different kind under any provision of the
Bankruptcy Act or its successor, or making any assignment for the
benefit of creditors. The Concessioner must also give the Director
immediate notice of any petition or other proceeding against the
Concessioner for the appointment of a trustee, receiver, or liquidator,
or, the taking by any person or entity of the rights granted by this
Contract or any part thereof upon execution, attachment or other
process of law or equity. For purposes of the bankruptcy statutes, this
Contract is not a lease, but is an executory contract exempt from
inclusion in assets of Concessioner pursuant to 11 U.S.C. 1135.
(d) Requirements in the Event of Termination
(1) In the event of termination of this Contract by the Director
for any reason, the total compensation due the Concessioner for such
termination shall be as described in section 17 of this Contract. No
other compensation of any nature shall be due the Concessioner in the
event of a termination of this Contract, including, but not limited to,
compensation for losses based on lost income, profit, or the necessity
to make expenditures as a result of the termination.
(2) Upon termination of this Contract for any reason, and except as
otherwise provided in this section, the Concessioner shall, at
Concessioner's expense, promptly vacate the Area, remove all of
Concessioner's personal property, repair any injury occasioned by
installation of removal of such property, and ensure that Concession
Facilities are in as good condition as they were at the beginning of
the term of this Contract, reasonable wear and tear excepted.
(3) To avoid interruption of services to the public upon the
termination of this Contract for any reason, the Concessioner, upon the
request of the Director, shall continue to conduct all operations
hereunder under the terms and conditions of this Contract for a
reasonable period of time as determined by the Director, not to exceed
the time limitations contained in 36 CFR Part 51 as it existed as of
the effective date of this Contract applicable to payment of leasehold
surrender interest value.
(4) To avoid interruption of services to the public upon expiration
of this Contract or upon its termination for any reason, the
Concessioner, upon the request of the Director, shall consent to the
use by another operator of the Concessioner's personal property,
excluding inventories if any, not including current or intangible
assets, for a period of time not to exceed one year from the date of
such termination or expiration. The other operator shall pay the
Concessioner an annual fee for use of such property, prorated for the
period of use, in the amount of the annual depreciation of such
property, plus a return on the book value of such property equal to the
prime lending rate, effective on the date the operator assumes
managerial and operational responsibilities, as published by the
Federal Reserve System Board of Governors. In such circumstances, the
method of depreciation applied shall be either straight line
depreciation or depreciation as shown on the Concessioner's Federal
income tax return, whichever is less. To avoid interruption of services
to the public upon expiration of this Contract or termination of this
Contract for any reason, the Concessioner shall, upon the request of
the Director, sell its existing inventory to another operator at the
purchase price as shown on applicable invoices.
Sec. 17 Compensation
(a) Just Compensation
The compensation provided by this Section shall constitute full and
just compensation to the Concessioner for all losses and claims
occasioned by the circumstances described below.
(b) Compensation for Contract Expiration or Termination
If, for any reason, including Contract expiration or termination,
the Concessioner shall cease to be authorized by the Director to
conduct operations under this Contract, the Concessioner shall convey
to a person designated by the Director (including the Director if
appropriate) any Leasehold Surrender Interest it has under the terms of
this Contract and the Director shall assure, subject to subsection (c)
below, that the Concessioner is paid the Leasehold Surrender Interest
Value in accordance with the requirements of 36 CFR Part 51 as they
existed as of the effective date of this Contract. The Concessioner
shall not be required to convey such Leasehold Surrender Interest until
the Concessioner is paid in accordance with 36 CFR Part 51 as it
existed as of the effective date of this Contract.
(c) Compensation When Contract Terminated for Default
Notwithstanding any other provision of this Contract to the
contrary, in the event of termination of this Contract for default, the
Concessioner shall be entitled to the payment of any
[[Page 48431]]
Leasehold Surrender Interest Value it may have under the terms of this
Contract, but such payment may be offset by the Director by any damages
due the Director from the Concessioner as a result of the breach of
Contract which resulted in the termination for default or by other
funds due the Director under the terms of this Contract.
(d) Procedures for Establishing the Value of a Leasehold Surrender
Interest
(1) In the event that agreement as to the value of a Leasehold
Surrender Interest cannot be reached by the Concessioner and the
Director such value shall be determined by binding arbitration, subject
to applicable limitations of 36 CFR Part 51 as it existed as of the
effective date of this Contract. In these circumstances, the
Concessioner and the Director shall each select an arbiter. These two
arbiters, within thirty (30) days of selection, must agree to the
selection of a third arbiter to complete the arbitration panel. The
third arbiter shall be the chairperson of the panel. The Director and
the Concessioner shall share equally the expenses of the third arbiter
and other common expenses associated with the arbitration. Within
thirty (30) days of the selection of the third arbiter, the arbitration
panel must hold an informal meeting with the Concessioner and the
Director. At such meeting, the Concessioner and the Director shall be
permitted to present their written and oral views and any accompanying
documentation as to their position on the value of the Leasehold
Surrender Interest and the members of the panel may pose questions to
the Concessioner and the Director. Non-adjudicative procedures only
shall be used in the arbitration proceedings. The arbitration panel
shall not have the power to compel the production of documents or
witnesses and shall not receive or take into account information or
documents developed by the Concessioner or the Director for pre-
negotiation or negotiation purposes. All aspects of the arbitration are
subject to the applicable requirements of 36 CFR Part 51 as it existed
as of the effective date of this Contract.
(2) The arbitration panel shall consider the written submissions
and any oral presentations made by the Concessioner and the Director
and provide its decision on the value of the Leasehold Surrender
Interest consistent with the terms of this Contract and 36 CFR Part 51
as it existed as of the effective date of this Contract.
(3) The Concessioner shall, at any time requested by the Director,
enter into negotiations with the Director as to the value of the
Concessioner's Leasehold Surrender Interest under this Contract. In the
event that such negotiations fail to determine an agreed upon value,
the Director may initiate arbitration proceedings to determine such
value upon written request to the Concessioner. Such arbitration
proceedings shall be conducted in accordance with the arbitration
procedures set forth in this section. The arbitration panel shall
determine the value of the Concessioner's Leasehold Surrender Interest
consistent with the terms of this Contract and 36 CFR Part 51 as it
existed as of the effective date of this Contract. The arbitration
panel shall also provide a means to calculate the change in the value
of such Leasehold Surrender Interest as may occur for up to two years
from the date of the initial determination. The determination of the
arbitration panel shall be binding on the Director and the
Concessioner.
(d) Compensation for Personal Property
Except as otherwise provided in this Contract, upon expiration or
termination of this Contract for any reason, the Concessioner shall
remove its personal property from the Area unless it is sold to the
Director or a successor concessioner. No compensation is due the
Concessioner from the Director or a successor concessioner for such
personal property. The Director or a successor concessioner may
purchase such personal property from the Concessioner subject to
mutually agreed upon terms. Personal property not removed from the Area
by the Concessioner as of the date of expiration or termination of this
Contract, unless the Director in writing extends such date of removal,
shall be considered abandoned property subject to disposition by the
Director, at full cost and expense of the Concessioner, in accordance
with Applicable Laws. Any cost or expense incurred by the Director as a
result of such disposition may be offset from any amounts owed to
Concessioner by the Director.
Sec. 18 Assignment, Sale or Encumbrance of Interests
(a) This Contract is subject to the requirements of 36 CFR Part 51
as it may be amended from time to time with respect to proposed
conveyances and encumbrances as those terms are defined in 36 CFR Part
51, including, but not limited to, proposed management and
subconcession agreements. Failure by the Concessioner to comply with 36
CFR Part 51 is a material breach of this Contract for which the
Director may terminate this Contract for default. The Director shall
not be obliged to recognize any right of any person or entity to an
interest in this Contract of any nature, including, but not limited to,
Leasehold Surrender Interest or operating rights under this Contract,
if obtained in violation of 36 CFR Part 51.
(b) The Concessioner shall advise any person(s) or entity proposing
to enter into a transaction which may be subject to 36 CFR Part 51 of
the requirements of that regulation.
Sec. 19 General Provisions
(a) The Director and Comptroller General of the United States, or
any of their duly authorized representatives, shall have access to the
records of the Concessioner as provided by 36 CFR Part 51 as it may now
exist or be amended from time to time.
(b) All information required to be submitted to the Director by the
Concessioner pursuant to this Contract is subject to public release by
the Director to the extent required or authorized by Applicable Laws.
(c) Subconcession or other third party agreements, including
management agreements, for the provision of principal services required
and/or authorized under this Contract are not permitted. However,
subconcession or other third party agreements may be allowed for
incidental or specialized services which are incidental to the
principal services required and/or authorized under this Contract. Any
proposal to provide incidental or specialized services through
subconcession or other third party agreements must be submitted to the
Director in writing, along with a copy of the proposed subconcession or
third party agreement, and shall be effective only if approved in
writing by the Director. If the Director approves a subconcession or
other third party agreement, the Concessioner and the Director will
amend the Contract to reflect such approval. Agreements with others to
provide vending or other coin-operated machines shall not be considered
subconcession agreements.
(d) The Concessioner is not entitled to be awarded or to have
negotiating rights to any Federal procurement or service contract by
virtue of any provision of this Contract.
(e) Any and all taxes or assessments of any nature that may be
lawfully imposed by any State or its political subdivisions upon the
property or business of the Concessioner shall be paid promptly by the
Concessioner.
[[Page 48432]]
(f) No member of, or delegate to, Congress or Resident Commissioner
shall be admitted to any share or part of this Contract or to any
benefit that may arise from this Contract but this restriction shall
not be construed to extend to this Contract if made with a corporation
or company for its general benefit.
(g) This Contract is subject to the provisions of 43 CFR, Subtitle
A, Subpart D, concerning nonprocurement debarment and suspension. The
Director may recommend that the Concessioner be debarred or suspended
in accordance with the requirements and procedures described in those
regulations, as they are effective now or may be revised in the future.
(h) This Contract contains the sole and entire agreement of the
parties. No oral representations of any nature form the basis of or may
amend this Contract. This Contract may be extended, renewed or amended
only when agreed to in writing by the Director and the Concessioner.
(i) The Concessioner is not granted by this Contract any rights to
renewal of this Contract or to award of a new contract of any nature.
(j) This Contract does not grant rights or benefits of any nature
to any third party.
(k) The invalidity of a specific provision of this Contract shall
not affect the validity of the remaining provisions of this Contract.
In Witness Whereof, the duly authorized representatives of the
parties have executed this Contract as of the ______ day of ______,
______.
Concessioner
By---------------------------------------------------------------------
(Title)
(Company Name)
United States of America
By---------------------------------------------------------------------
Director
National Park Service
[corporations]
Attest:
By---------------------------------------------------------------------
Title
[Sole Proprietorship]
Witnesses:
Name
Address
Title
Name
Address
Title
[Partnership]
Witnesses as to each:
Name-------------------------------------------------------------------
Address
Name-------------------------------------------------------------------
Address
[Concessioner]
(Name)
(Name)
Dated: August 20, 1999.
Maureen Finnerty,
Associate Director, Park Operations and Education, National Park
Service.
[FR Doc. 99-23029 Filed 9-2-99; 8:45 am]
BILLING CODE 4310-70-P
