Department of Interior, National Park Service,
[Federal Register: July 19, 2000 (Volume 65, Number 139)]
[Notices]
[Page 44893-44920]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy00-148]
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Part III
Department of the Interior
National Park Service
Simplified Concession Contracts; Revision
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DEPARTMENT OF THE INTERIOR
National Park Service
Simplified Concession Contracts; Revision
ACTION: Final revision of the National Park Service simplified concession contracts.
SUMMARY: The National Park Service (NPS) authorizes certain business entities to operate concessions in areas of the national park system. The agreements embodying these authorizations are concession contracts (and, previously, concession permits) that incorporate NPS terms and conditions established by law and prudent contract administration. In 1998, Public Law 105-391 (the 1998 Act) was enacted and which in many significant ways affects the content of concession contracts to be entered into after its effective date. NPS has amended its existing standard concession contract (Category I contract) to conform to the requirements of the 1998 Act and to otherwise make improvements to the standard form (65 FR 26052, May 4, 2000).
Under this notice, NPS adopts two simplified versions of its standard concession contract (Category II and Category III contracts) that will be used for smaller concession operations. Although not required to do so by law, NPS sought by publication in the Federal Register on December 21, 1999, public comments on the proposed simplified contracts to assist it in developing final versions as a matter of public comment. NPS, after consideration of public comments has adopted these simplified versions of its standard concession contract. NPS points out that these simplified versions of the standard concession contract serve as a guideline for the form of concession contracts used to authorize smaller concession operations. These forms reflect the current policies of NPS with regard to concession operations, but may be changed by the Director of NPS when necessary to accommodate the circumstances of any particular contracting situation, so long as the contract form used is consistent with the 1998 Act and 36 CFR Part 51.
EFFECTIVE DATE: August 18, 2000.
FOR FURTHER INFORMATION CONTACT: Cindy Orlando, Concessions Program Manager, National Park Service, 1849 ``C'' Street, NW, Washington, DC 10140 (202/565-1210).
SUPPLEMENTARY INFORMATION: The 1998 Act, among other matters, amended the statutory policies and procedures under which NPS operated its concession program. The new law required adoption of new regulations governing the award, content and management of concession contracts. On June 30, 1999, NPS published for public comment proposed regulations implementing the new law. The final new regulations were published in the Federal Register on April 17, 2000. On September 3, 1999, NPS published for public comment a new standard concession contract (Category I contract). The final Category I contract language was published in the Federal Register on May 4, 2000. On December 21, NPS published for public comment its proposed simplified concession contracts (Category II and Category III contracts) that will be used for smaller concession operations that do not involve the concessioner's obtaining a compensable interest in real property located on park lands. The simplified concession contracts set forth in this notice reflect the requirements of the 1998 Act and the requirements of the amended 36 CFR Part 51. They also reflect a variety of improvements NPS wishes to make to its standard form contracts, including a new organizational structure for the sake of clarity.
NPS will utilize the three contract categories as follows:
Category I contracts will be used in situations where the concessioner will be required or allowed to construct or install capital improvements on park area lands, thereby acquiring in certain conditions a leasehold surrender interest. Category I contracts will also require that the concessioner perform capital maintenance on assigned concession facilities, as necessary, and may require the establishment of a maintenance reserve for this purpose.
Category II contracts will be used in situations where a concessioner will operate on assigned land or in an assigned concession facility, but will not be allowed to construct or install capital improvements. As an example, a Category II contract might be used to authorize a gift shop operation in a portion of a park visitor center, or a small snack bar operation in an assigned building.
Category III contracts will be used in situations where no lands or buildings are assigned to the concessioner; consequently, the concessioner will not be allowed to construct or install any capital improvements and the concessioner will not obtain any leasehold surrender interest. Many outfitter/guide operations will be authorized by Category III contracts.
Public Comments
Twenty-two public comments were received in response to the public notice. Twenty of these comments were from outfitters and guides, or groups representing outfitters and guides. The remaining two comments were submitted by an organization representing some 150 existing concessioner members (the ``general concessioner organization''), and by one large concessioner supporting the comments made by that organization.
Two commenters expressly incorporated by reference objections they had made to the proposed Category I contract. Those comments are not addressed here, as they have been addressed in the preamble to the Category I contract. Additionally, several comments directed to specific provisions of the Category II and Category III contracts have been addressed in response to similar comments received on the Category I contract. These comments will be noted here, and the response will give reference to the section of the Category I preamble where they have been addressed. Changes made to the Category I contract in response to public comments are incorporated in the final simplified contracts where applicable.
General Comments
All but one commenter stated that the simplified contracts must specifically recognize the right of preference provided to outfitters and guides and small businesses under the 1998 Act. See NPS response in paragraph 7, Additional Provisions Section of the Category I contract.
One commenter who submitted comments on behalf of Alaska hunting guides identified several sections where conflicts may exist between the contracts and the provisions of the Alaska National Interest Lands Conservation Act (ANILCA) or other laws specific to Alaska. NPS wishes to point out that the proposed simplified contracts have been developed for nationwide application. If, in the development of individual contracts, it appears that modifications are necessary in order to comport with specific legislative requirements, they will be considered and incorporated, as appropriate, on a case-by-case basis. The NPS further notes that the 1998 Act specifically states that the Act does not amend, supersede or otherwise affect any provision of ANILCA relating to revenue producing visitor services (Sec. 415(c) of the 1998 Act).
Only one of the 22 commenters objected to the length and level of detail
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of the proposed simplified contracts. NPS has made every effort to streamline the simplified contracts to the extent possible. However, it considers that all of the provisions are required in order to give NPS the ability to properly preserve and protect the resources of areas of the national park system and their visitors. Further, the simplified contracts provide added protections to small concessioners that were not afforded under the terms of concession permits with regard to NPS administrative actions.
In developing these final simplified contracts, NPS has incorporated the changes it has made to the Category I contract in response to public comment, to the extent applicable. Those changes, and the discussion of those changes, are incorporated and made a part of this notice, as if repeated fully herein. In addition, discussions of comments and/or changes made in response to public comments on 36 CFR part 51 as amended, to the extent that they are applicable to the simplified contracts, are also incorporated and made a part of this notice. NPS has also made several editorial and conforming changes to the simplified contracts in addition to the changes discussed below.
Section-by-Section Analysis of Comments and Changes
The following discusses significant comments made on the several sections of the proposed simplified contracts. Unless otherwise noted, comments relate to both Category II and Category III contracts. Where section numbers differ between Category II and III contracts, both section numbers will be identified (for example, Section 10/7). The first number will refer to the applicable section number in the Category II contract. The second number will refer to the related section number in the Category III contract.
Opening Paragraphs
One commenter expressed concern that the opening paragraphs assume that concessioners will be a corporation, partnerships or sole proprietorships, and suggested that the contracts be revised to allow for other possibilities. NPS has included opening paragraphs for these three forms of business organization because they are the ones most commonly encountered in the award of concession contracts. Appropriate opening paragraphs will be developed for other legally recognized forms of business entities on a case-by-case basis as the need arises.
Section 1. Term of Contract
Several commenters felt that the proposed contracts should specify a 10-year term for outfitters and guides. NPS has left the proposed term of contract blank because the appropriate term for each individual contract will be determined on a case by case basis in accordance with 36 CFR Part 51 and NPS policies.
Section 2. Definitions
Many commenters objected to the definition of ``Applicable Laws'' in Section 2(a) as providing NPS unilateral authority to amend contracts to reflect future changes in agency regulations, rules, requirements or policies. See NPS response to comments on Section 2(a), Applicable Laws, of the Category I contract.
Several comments stated that Section 7, Fees, should reflect that fees should be charged only on the portion of gross receipts related to park visitation. See NPS response to comments on Section 2(g), Definition of gross receipts, of the Category I contract.
Section 3. Services and Operations
Several commenters felt that the requirement in Section 3(d) that all promotional or interpretive material must be approved is unreasonable and unworkable. See NPS response to comments on Section 3(d)(2) of the Category I contract.
Section 4. Concessioner Personnel
Most outfitters and guides objected to the requirement in Section 4(c) that concessioner employees must wear a uniform or badge, and stated that this is inappropriate for most outfitter and guide operations. NPS points out that this section only requires the wearing of a uniform or badge by employees who come in direct contact with the public ``so far as practicable'' (emphasis added). NPS considers this to be a reasonable requirement.
One commenter expressed concern that the language of Section 4(e) concerning the hiring of people interested in serving the public and being positive contributors to the park's purposes would require concessioners to base hiring decisions on subjective judgement. This clause has been deleted (see NPS response to comments on Section 4(a)(5) of the Category I contract).
Section 5. Legal, Regulatory and Policy Compliance
No comments were received on this section.
Section 6. Environmental and Cultural Protection
Several comments were received on this section. However, on February 23, 2000, NPS published for public comment a revised Section 6. The public comments received in response to that public notice are discussed in the preamble to the final Category I contract. The comments received on this section in response to the simplified contracts notice were also considered in that connection and are addressed in the preamble to the Category I contract.
Section 7. Interpretation of Area Resources (Category II Only)
No comments were received on this section.
Section 8. Concession Facilities Used in Operation by Concessioner (Category II Only)
One commenter, the general concessioner organization, objected to Section 8(a) of the Category II contract, in that the contract imposes maintenance obligations on the concessioner and feels that, to the extent these obligations result in construction of capital improvements, the concessioner would be entitled to leasehold surrender interest. Given the stated purpose of Category II contracts, the commenter feels that NPS should be responsible for maintenance and collect a greater franchise fee. NPS is confused by this comment. Section 8(a)(1) specifically states that the concessioner shall not be authorized to construct any capital improvements on parklands. The fact that the concessioner is not authorized to make capital improvements should not, however, excuse the concessioner from responsibility for maintenance obligations. NPS has added the phrase ``Subject to the limitations set forth in Section 8(a)(1),'' at the beginning of Section 9 to clarify that maintenance projects that would require the concessioner to make capital improvements will not be required or authorized. See also NPS response to comments on Section 51.75 (Section 51.67 in the final rule) concerning the relationship of concessioner repair and maintenance requirements and leasehold surrender interest.
The same commenter questions why the phrase ``or real property improvements'' was deleted from subsection 8(b). NPS agrees with this comment and has reinserted the phrase ``or real property improvements.'' See also discussion in Section 8(b) of the Category I contract.
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Section 9. Maintenance (Category II Only)
The general concessioner organization raises the same comments with regard to this section as it expressed on Section 8(a) of the Category II contract. See NPS response to comment on Section 8(a) of the Category II contract.
Section 10/7. Fees
Two commenters expressed concern about the monthly fee payment requirement of Section 10/7 (b)(1). One suggested that NPS consider annual payments, and the other suggested that payments be required twice yearly, or monthly only if annual gross receipts exceed $250,000. NPS points out that standard government accounting practices require monthly payment of fees. However, in revising its administrative practices regarding concessioners, NPS will look into other possible payment schedules that may lessen the burden of monthly payments on small concessioners.
Another commenter suggested that fees for outfitters be based on a per head, per day basis for each day the guide operates on park lands. Again, in reviewing and revising its administrative practices regarding concessioners, NPS may look into alternative methods of structuring fees for specific types of operations.
Several commenters suggested that this section should be more specific about the methodology to be used to determine whether there is diversion or concealment of profits. NPS considers that such methodology is not the subject of contract terms and conditions, but, more appropriately, belongs in related administrative policies and procedures.
One commenter noted that the Fees section of the simplified contract omits fee adjustment language. NPS agrees that, in compliance with section 407 of the 1998 Act, this language should be included in contracts with terms of more than 5 years. Accordingly, NPS has included the fee adjustment language from the Category I contract along with instructions to this effect.
Section 11/8. Indemnification and Insurance
Many commenters felt that this section is unnecessarily vague on the types of insurance that a concessioner will be required to obtain and maintain, and suggested that these insurance types and limits should be specifically reflected in the contract, as was the case in the past. NPS will identify on a case-by-case basis the specific types and minimum amounts of insurance applicable to each contract in the Insurance Exhibit (Exhibit D) that will be attached to each simplified contract.
One commenter objected to Section 11(d) requiring concessioner to insure concession facilities assigned to it in the context of a Category II contract. This commenter further objected to Section 11(d)(1) of the Category II contract to the extent it purports to impose requirements on the insurance of concessioner facilities located outside of the park. NPS assumes that the first comment relates to ``shared use'' facilities (for example, where a concessioner occupies a small portion of a visitor center). The extent to which, if at all, the concessioner may be required to provide property insurance in these circumstances is determined on a case-by-case basis in accordance with NPS administrative guidelines. These guidelines have been in place for many years and have proved to be fair and workable. With regard to the second comment, NPS does not consider that Section 11(d)(1) purports to impose requirements on the insurance of concessioner facilities located outside of the park.
Section 12/9. Bonds and Liens
Several commenters suggest that NPS should limit its first lien to only that property used exclusively in the performance of the contract. See NPS response to comments on Section 13(b), Liens, of the Category I contract.
One commenter felt that for the types of operations envisioned under the simplified contracts, there is no justification for bonding requirements, and that it is unfair for the Government to have any lien rights. NPS does not agree that bonding requirements are inappropriate under the simplified contracts. As an example, bonding could be utilized under a Category III contract if considered necessary to mitigate anticipated resource impacts of a particular concession operation. However, in light of changes made to the Category I contract as a result of public comment (see NPS response to comments on Section 13(b) of the Category I contract), NPS considers that it is appropriate to delete the lien provision from the Category III contract, because the concessioner's real and personal property will, in almost all instances, be located outside the park area.
Section 13/10. Accounting Records and Reports
No comments were received on this section.
Section 14/11. Other Reporting Requirements
One commenter questioned whether concessioners would be required under Section 14/11(b) to submit reports on environmental compliance if no reportable actions or incidents had occurred. There is no requirement of this nature except in the limited circumstances described in this section.
One commenter points out that the requirement of Section 14/11(a) that concessioners provide the Director with certificates of insurance for all coverages at specified times is inconsistent with the requirements of Section 8/11(c) which also require them to be provided at specified times, but only at the request of the Director. NPS agrees that these provisions appear to be inconsistent, and has added the conditional language ``At the request of the Director'' at the beginning of Section 8/11(b)(3).
Section 15/12. Suspension and Termination
Several commenters felt that Section 15/12 grants an undue degree of discretion by allowing NPS to suspend or terminate contracts when necessary for administrative purposes or to enhance or protect park resources. Another commenter stated that the contract should not be able to be unilaterally amended or terminated. NPS has modified these sections in response to public comment on the Category I contract. See NPS response to comments on Sections 16(a) and 16(b)(1) of the Category I contract.
One commenter felt that concessioners should be allowed 1 month rather than 15 days to cure monetary breaches under Section 16(b)(3). NPS disagrees, and feels that 15 days should be an adequate period of time in which to cure a monetary breach of the contract.
One commenter stated that the Director should not have the discretion to suspend operations after one breach before the concessioner has had an opportunity to cure under Section 16(b)(3).
NPS does not agree with this comment, and notes that Section 16(b)(3) limits the Director's authority to suspend a contract pending cure to that set forth in Section 16(a), i.e., to protect park visitors or to conserve and preserve park area resources. NPS considers this provision necessary for proper management of park area resources and visitor protection. See NPS response to comments on Section 16 of the Category I contract.
One commenter requested that NPS specify a time period for how promptly
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a concessioner will be required to vacate the area after termination, and stated that the vacating concessioner should be compensated for its personal property. See NPS response to comments on Section 17(e) of the Category I contract.
Section 16/13. Assignment, Sale or Encumbrance of Interests
Most commenters felt that Section 16/13 needs to be rewritten to reflect the intent of the 1998 Act that contracts be transferable to a qualified buyer. As this section of the contract simply incorporates by reference the requirements of 36 CFR part 51 with regard to assignments, sales and encumbrances, this comment is addressed in the NPS response to comments on Subpart I, 36 CFR part 51.
Section 17/14. General Provisions
No comments were received on this section.
Section 18/15. Special Provisions
No comments were received on this section.
Exhibits
See the discussion of exhibits contained in the preamble to the final Category I contract.
Based on the foregoing, NPS adopts the following standard form Category II and III concession contract for use in its concession management program, with the understanding that they are only internal guidelines. The Director, in his discretion, may utilize any form of concession contract it may choose consistent with the requirements of the 1998 Act and 36 CFR part 51.
Category II Contract
United States Department of the Interior; National Park Service
[Name of Area]--------------------------------------------------------
[Site]----------------------------------------------------------------
[Type of Service]-----------------------------------------------------
Concession Contract No.-----------------------------------------------
[Name of Concessioner]------------------------------------------------
[Address, including email address and phone number]-------------------
Doing Business As-----------------------------------------------------
Covering the Period--------------------------------------------------- through---------------------------------------------------------------
Concession Contract
Table of Contents
Identification of the Parties
Sec. 1. Term of Contract
Sec. 2. Definitions
Sec. 3. Services and Operations
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Required and Authorized Visitor Services B. Operation and Quality of Operation C. Operating Plan [OPTIONAL] D. Merchandise and Services E. Rates F. Impartiality as to Rates and Services
Sec. 4. Concessioner Personnel
Sec. 5. Legal, Regulatory, and Policy Compliance
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Legal, Regulatory, and Policy Compliance B. Notice C. How and Where to Send Notice
Sec. 6. Environmental and Cultural Protection
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Environmental Management Objectives B. Environmental Management Program C. Environmental Management Measurement D. Environmental Data, Reports, Notifications, and Approvals E. Corrective Action F. Indemnification and Cost Recovery for Concessioner Environmental Activities G. Weed and Pest Management H. Protection of Cultural and Archeological Resources
Sec. 7. Interpretation of Area Resources
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Concessioner Obligations B. Director Review of Content
Sec. 8. Concession Facilities Used in Operation by Concessioner
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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
Sec. 9. Maintenance
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Maintenance Obligation B. Maintenance Plan [OPTIONAL]
Sec. 10. Fees
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Franchise Fee B. Payments Due C. Interest D. Adjustment of Franchise Fee [OPTIONAL]
Sec. 11. Indemnification and Insurance
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Indemnification B. Insurance in General C. Commercial Public Liability D. Property Insurance
Sec. 12. Bonds and Liens
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Bonds B. Lien
Sec. 13. Accounting Records and Reports
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Accounting System B. Annual Financial Report C. Other Financial Reports
Sec. 14. Other Reporting Requirements
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Insurance Certification B. Environmental Reporting C. Miscellaneous Reports and Data.
Sec. 15. Suspension, Termination, or Expiration
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Suspension B. Termination C. Notice of Bankruptcy or Insolvency D. Requirements in the Event of Termination or Expiration
Sec. 16. Assignment, Sale or Encumbrance of Interests
Sec. 17. General Provisions
Sec. 18. Special Provisions [Optional]
Exhibits
Exhibit A: Operating Plan Exhibit B: Nondiscrimination. Exhibit C: Assigned Land, Real Property Improvements Exhibit D: Assigned Government Personal Property Exhibit E: Maintenance Plan Exhibit F: Insurance Requirements
[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
(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 ______ a partnership organized under the laws of the State of ______, 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 wildlife 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 should be provided for the public visiting the Area; and
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Whereas, the Director desires the Concessioner to establish and operate these visitor services at reasonable rates under the supervision and regulation of the Director; and
Whereas, the Director desires the Concessioner to conduct these visitor services in a manner that demonstrates sound environmental management, stewardship, and leadership;
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 ______ (______) years until its expiration on ______, 20______.
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 (e.g., 36 CFR Part 51), 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 protection of public health and safety.
(b) ``Area'' means the property within the boundaries of [Name of Park Unit].
(c) ``Best Management Practices'' or ``BMPs'' are policies and practices that apply the most current and advanced means and technologies available to the Concessioner to undertake and maintain a superior level of environmental performance reasonable in light of the circumstances of the operations conducted under this CONTRACT. BMPs are expected to change from time to time as technology evolves with a goal of sustainability of the Concessioner's operations. Sustainability of operations refers to operations that have a restorative or net positive impact on the environment.
(d) ``Concession Facilities'' shall mean all Area lands assigned to the Concessioner under this CONTRACT and all real property improvements assigned to the Concessioner under this CONTRACT. The United States retains title and ownership to all Concession Facilities.
(f) ``Days'' shall mean calendar days.
(g) ``Director'' means the Director of the National Park Service, acting on behalf of the Secretary of the Interior and the United States, and his duly authorized representatives.
(h) ``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.
(i) ``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:
(1) Intracompany earnings on account of charges to other departments of the operation (such as laundry);
(2) Charges for employees' meals, lodgings, and transportation;
(3) Cash discounts on purchases;
(4) Cash discounts on sales;
(5) Returned sales and allowances;
(6) Interest on money loaned or in bank accounts;
(7) Income from investments;
(8) Income from subsidiary companies outside of the Area;
(9) Sale of property other than that purchased in the regular course of business for the purpose of resale;
(10) Sales and excise taxes that are added as separate charges to 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;
(11) Receipts from the sale of handicrafts 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.
(j) ``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 a subconcession contract. A subconcessioner will report all of its gross receipts to the Concessioner without allowances, exclusions, or deductions of any kind or nature.
(k) ``Subconcessioner'' means a third party that, with the approval of the Director, has been granted by a concessioner rights to operate under a concession contract (or any portion thereof), whether in consideration of a percentage of revenues or otherwise.
(l) ``Superintendent'' means the manager of the Area.
(m) ``Visitor services'' means the accommodations, facilities and services that the Concessioner is required and/or 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 a 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.]
(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. See note in subsection (a)(1) above.]
(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. Except for any such items that may be provided to the Concessioner 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
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under the terms of this CONTRACT is non-exclusive. (c) Operating Plan
[Optional--This section may be deleted and operating requirements incorporated under Section 18, Special Provisions.]
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 A. The Director in his discretion, after consultation with the Concessioner, may make reasonable modifications to the initial Operating Plan that are in furtherance of the purposes of this CONTRACT and are not 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 promotional material, regardless of media format (i.e. printed, electronic, broadcast media), provided to the public by the Concessioner in connection with the services provided under this CONTRACT 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) [OPTIONAL--To be used only if the concessioner is authorized to sell merchandise.] The Concessioner, where applicable, will develop and implement a plan satisfactory to the Director that will assure that 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 Applicable Laws and guidelines promulgated by the Director from time to time. (f) Impartiality as to Rates and Services
(1) Subject to Section (f)(2) and (f)(3), 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 B.
(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 the Concessioner's complimentary or reduced rate policies and practices as part of its rate approval process.
(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) The Concessioner shall provide all personnel necessary to provide the visitor services required and authorized by this CONTRACT.
(b) The Concessioner shall comply with all Applicable Laws relating to employment and employment conditions, including, without limitation, those set forth in Exhibit B.
(c) 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.
(d) 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 to whom an offer for employment may be extended to assure that they conform to the hiring policies established by the Concessioner.
(e) 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.
(f) 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 correct the situation.
(g) The Concessioner shall maintain, to the greatest extent possible, a drug free environment, both in the workplace and in any Concessioner employee housing, within the Area.
(h) 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.
(i) 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 is found to be in violation of the prohibition on the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.
Sec. 5. Legal, Regulatory, and Policy Compliance
(a) Legal, Regulatory and Policy Compliance
This CONTRACT, operations thereunder by the Concessioner and the
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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 by the Concessioner, including its employees, agents or contractors, 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 Management Objectives
The Concessioner shall meet the following environmental management objectives (hereinafter ``Environmental Management Objectives'') in the conduct of its operations under this CONTRACT:
(1) The Concessioner, including its employees, agents and contractors, shall comply with all Applicable Laws pertaining to the protection of human health and the environment.
(2) The Concessioner shall incorporate Best Management Practices (BMPs) in its operation, construction, maintenance, acquisition, provision of visitor services, and other activities under this CONTRACT. (b) Environmental Management Program
(1) The Concessioner shall develop, document, implement, and comply fully with, to the satisfaction of the Director, a comprehensive written Environmental Management Program (EMP) to achieve the Environmental Management Objectives. The initial EMP shall be developed and submitted to the Director for approval within sixty days of the effective date of this CONTRACT. The Concessioner shall submit to the Director for approval a proposed updated EMP annually.
(2) The EMP shall account for all activities with potential environmental impacts conducted by the Concessioner or to which the Concessioner contributes. The scope and complexity of the EMP may vary based on the type, size and number of Concessioner activities under this CONTRACT.
(3) The EMP shall include, without limitation, the following elements:
(i) Policy. The EMP shall provide a clear statement of the Concessioner's commitment to the Environmental Management Objectives.
(ii) Goals and Targets. The EMP shall identify environmental goals established by the Concessioner consistent with all Environmental Management Objectives. The EMP shall also identify specific targets (i.e. measurable results and schedules) to achieve these goals.
(iii) Responsibilities and Accountability. The EMP shall identify environmental responsibilities for Concessioner employees and contractors. The EMP shall include the designation of an environmental program manager. The EMP shall include procedures for the Concessioner to implement the evaluation of employee and contractor performance against these environmental responsibilities.
(iv) Documentation. The EMP shall identify plans, procedures, manuals, and other documentation maintained by the Concessioner to meet the Environmental Management Objectives.
(v) Documentation Control and Information Management System. The EMP shall describe (and implement) document control and information management systems to maintain knowledge of Applicable Laws and BMPs. In addition, the EMP shall identify how the Concessioner will manage environmental information, including without limitation, plans, permits, certifications, reports, and correspondence.
(vi) Reporting. The EMP shall describe (and implement) a system for reporting environmental information on a routine and emergency basis, including providing reports to the Director under this CONTRACT.
(vii) Communication. The EMP shall describe how the environmental policy, goals, targets, responsibilities and procedures will be communicated throughout the Concessioner's organization.
(viii) Training. The EMP shall describe the environmental training program for the Concessioner, including identification of staff to be trained, training subjects, frequency of training and how training will be documented.
(ix) Monitoring, Measurement, and Corrective Action. The EMP shall describe how the Concessioner will comply with the EMP and how the Concessioner will self-assess its performance under the EMP, a least annually, in a manner consistent with NPS protocol regarding audit of NPS operations. The self-assessment should ensure the Concessioner's conformance with the Environmental Management Objectives and measure performance against environmental goals and targets. The EMP shall also describe procedures to be taken by the Concessioner to correct any deficiencies identified by the self-assessment. (c) Environmental Performance Measurement
The Concessioner shall be evaluated by the Director on its environmental performance under this CONTRACT, including, without limitation, compliance with the approved EMP, on at least an annual basis. (d) Environmental Data, Reports, Notifications, and Approvals
(1) Inventory of Hazardous Substances and Inventory of Waste Streams. The Concessioner shall submit to the Director, at least annually, an inventory of federal Occupational Safety and Health Administration (OSHA) designated hazardous chemicals used and stored in the Area by the Concessioner. The Director may prohibit the use of any OSHA hazardous chemical by the Concessioner in operations under this CONTRACT. The Concessioner shall obtain the Director's approval prior to using any extremely hazardous substance, as defined in the Emergency Planning and Community Right to Know Act of 1986, in operations under this CONTRACT. The Concessioner shall also submit to the Director, at least annually, an inventory of all waste streams generated by the Concessioner under this CONTRACT. Such inventory shall include any documents, reports, monitoring data, manifests, and other documentation required by Applicable Laws regarding waste streams.
(2) Reports. The Concessioner shall submit to the Director copies of all documents, reports, monitoring data,
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manifests, and other documentation required under Applicable Laws to be submitted to regulatory agencies. The Concessioner shall also submit to the Director any environmental plans for which coordination with Area operations are necessary and appropriate, as determined by the Director in accordance with Applicable Laws.
(3) Notification of Releases. The Concessioner shall give the Director immediate written notice of any discharge, release or threatened release (as these terms are defined by Applicable Laws) within or at the vicinity of the Area, (whether solid, semi-solid, liquid or gaseous in nature) of any hazardous or toxic substance, material, or waste of any kind, including, without limitation, building materials such as asbestos, or any contaminant, pollutant, petroleum, petroleum product or petroleum by-product.
(4) Notice of Violation. The Concessioner shall give the Director in writing immediate notice of any written threatened or actual notice of violation from other regulatory agencies of any Applicable Law arising out of the activities of the Concessioner, its agents or employees.
(5) Communication with Regulatory Agencies. The Concessioner shall provide timely written advance notice to the Director of communications, including without limitation, meetings, audits, inspections, hearings and other proceedings, between regulatory agencies and the Concessioner related to compliance with Applicable Laws concerning operations under this CONTRACT. The Concessioner shall also provide to the Director any written materials prepared or received by the Concessioner in advance of or subsequent to any such communications. The Concessioner shall allow the Director to participate in any such communications. The Concessioner shall also provide timely notice to the Director following any unplanned communications between regulatory agencies and the Concessioner. (e) Corrective Action
(1) The Concessioner, at its sole cost and expense, shall promptly control and contain any discharge, release or threatened release, as set forth in this section, or any threatened or actual violation, as set forth in this section, arising in connection with the Concessioner's operations under this CONTRACT, including, but not limited to, payment of any fines or penalties imposed by appropriate agencies. Following the prompt control or containment of any release, discharge or violation, the Concessioner shall take all response actions necessary to remediate the release, discharge or violation, and to protect human health and the environment.
(2) 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, or transported onto or into the Area by the Concessioner to ensure that the Area remains in good condition. (f) Indemnification and Cost Recovery for Concessioner Environmental Activities
(1) The Concessioner shall indemnify the United States in accordance with Section 11 of this CONTRACT from all losses, claims, damages, environmental injuries, expenses, response costs, allegations or judgments (including, without limitation, fines and penalties) and expenses (including, without limitation, attorneys fees and experts' fees) arising out of the activities of the Concessioner, its employees, agents and contractors pursuant to this section. Such indemnification shall survive termination or expiration of this CONTRACT.
(2) If the Concessioner does not promptly contain and remediate an unauthorized discharge or release arising out of the activities of the Concessioner, its employees, agents and contractors, as set forth in this section, or correct any environmental self-assessment finding of non-compliance, in full compliance with Applicable Laws, the Director may, in its sole discretion and after notice to the Concessioner, take any such action consistent with Applicable Laws as the Director deems necessary to abate, mitigate, remediate, or otherwise respond to such release or discharge, or take corrective action on the environmental self-assessment finding. The Concessioner shall be liable for and shall pay to the Director any costs of the Director associated with such action upon demand. Nothing in this section shall preclude the Concessioner from seeking to recover costs from a responsible third party. (g) Weed and Pest Management
The Concessioner shall be responsible for managing weeds, and through an integrated pest management program, harmful insects, rats, mice and other pests on Concession Facilities assigned to the Concessioner under this CONTRACT. All such weed and pest management activities shall be in accordance with Applicable Laws and guidelines established by the Director. (h) 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, agents and contractors, except in accordance with Applicable Laws, and only with the prior approval of the Director. Discoveries of any archeological resources by the 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 as reflected in Area planning documents, mission statements and/or interpretive prospectuses.
(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.
(3) The Concessioner is encouraged to develop interpretive materials or means to educate visitors about environmental programs or initiatives implemented by the Concessioner. (b) Director review of content
The Concessioner must submit the proposed content of any interpretive programs, exhibits, displays or materials, regardless of media format (i.e. printed, electronic, or broadcast media), to the Director for review and approval prior to offering such programs, exhibits, displays or materials to Area visitors.
Sec. 8. Concession Facilities Used in Operation by the Concessioner
(a) Assignment of Concession Facilities
(1) The Director hereby assigns Concession Facilities as described in Exhibit C to the Concessioner for the purposes of this CONTRACT. The Concessioner shall not be authorized to
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construct any Capital Improvements (as defined in Applicable Laws including without limitation 36 CFR Part 51) upon Area lands. The Concessioner shall not obtain a Leasehold Surrender Interest or other compensable interest in Capital Improvements constructed or installed in violation of this CONTRACT.
(2) The Director shall from time to time amend Exhibit C to reflect changes in Concession Facilities assigned to the Concessioner. (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 necessary for the purpose of conserving, preserving 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 or the Concessioner considers to be essential for the Concessioner to provide the visitor services required by this CONTRACT will be treated as a termination of this CONTRACT pursuant to Section 15. No 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 without limitation removable equipment, furniture and goods, necessary for its operations under this CONTRACT, unless such personal property is provided by the Director as set forth in subsection (e)(2).
(2) Personal Property Provided by the Government. The Director may provide certain items of government personal property, including without limitation removable equipment, furniture and goods, for the Concessioner's use in the performance of this CONTRACT. The Director hereby assigns government personal property listed in Exhibit D to the Concessioner as of the effective date of this CONTRACT. This Exhibit D 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 assigned to it and shall be responsible for maintaining the property 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
The 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
(1) The Director may provide utilities to the Concessioner for use in connection with the operations required or authorized hereunder when available and at rates to be determined in accordance with Applicable Laws.
(2) If the Director does not provide utilities to the Concessioner, 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.
Sec. 9. Maintenance
(a) Maintenance Obligation
Subject to the limitations set forth in Section 8(a)(1) of this CONTRACT, 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
[OPTIONAL--This section may be deleted and maintenance requirements incorporated under Section 18, Special Provisions.]
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 E. The Director in his discretion may make reasonable modifications to the Maintenance Plan from time to time after consultation with the Concessioner. Such modifications shall be in furtherance of the purposes of this CONTRACT and shall not be inconsistent with the terms and conditions of the main body of this CONTRACT.
Sec. 10. 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 fee 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. In the event of termination or expiration of this CONTRACT, overpayments will first be offset against any amounts due and owing the Government, and the remainder will be paid to the Concessioner.
(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.
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(d) Adjustment of Franchise Fee
[OPTIONAL-Include only if contract term is greater than 5 years.]
(1) The Concessioner or the Director may request, in the event that either 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 or the Director must make a request for a reconsideration by mailing, within sixty (60) days from the date that the party becomes aware, or should have become aware, of the possible extraordinary, unanticipated changes, a written notice to the other party that includes a description of the possible extraordinary, unanticipated changes and why the party believes they have affected or will significantly affect the probable value of the privileges granted by this CONTRACT.
(3) If the Concessioner and the Director agree that extraordinary, unanticipated changes have occurred, the Concessioner and the Director will undertake good faith negotiations 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 Concessioner and the Director agree 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, prospectively as of the date of agreement.
(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 must be made by mailing written 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 written 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. Unless otherwise agreed by the parties, the arbitration panel shall establish the procedures of the arbitration. Such procedures must provide each party a fair and equal opportunity to present its position on the matter to the arbitration panel.
(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 presentations.
(8) Any adjustment to the franchise fee resulting from this section shall be prospective only.
(9) Any adjustment to the franchise fee will be embodied in an amendment to this CONTRACT.
(10) 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. 11. 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 connected with or arising out of the activities of the Concessioner, its employees, agents or contractors 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 as determined by the Director. The initial insurance requirements are set forth below and in Exhibit F. Any changed or additional requirements that the Director determines necessary must be reasonable and consistent with the types and coverage amounts of insurance a prudent businessperson would purchase in similar circumstances. 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 immediate written notice of any material change in the Concessioner's insurance program hereunder, including without limitation, cancellation of any required insurance coverages. (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, agents or contractors, 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 F. Furthermore, the commercial general liability package shall provide no less than the coverages and limits described in Exhibit F.
(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 F to revise the minimum required limits or to require additional types of insurance,
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provided that any additional requirements must be reasonable and consistent with the types of insurance a prudent businessperson would purchase in similar circumstances. (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 for all or part of their replacement cost as specified in Exhibit F in amounts no less than the Director may require during the term of the CONTRACT. The minimum values currently in effect are set forth in Exhibit F.
(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 Section 12 shall apply to such insurance proceeds. The Concessioner shall not be relieved of its obligations under subsection (d)(1) because insurance proceeds are not sufficient to repair or replace damaged or destroyed property.
(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 (as defined in Applicable Laws including without limitation 36 CFR Part 51) 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 F.
Sec. 12. Bonds and Liens
(a) Bonds
The Director may require the Concessioner to furnish appropriate forms of bonds in amounts reasonable in the circumstances and acceptable to the Director, in order to ensure faithful performance of the Concessioner's obligations under this CONTRACT. (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 within the Area.
Sec. 13. 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 accounts in such manner that there can be no diversion or concealment of profits or expenses in the operations authorized under this CONTRACT 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 one hundred twenty (120) 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 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 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 annual gross receipts, by an independent Certified Public Accountant.
Sec. 14. Other Reporting Requirements
The following describes certain other reports required under this CONTRACT: (a) Insurance Certification
As specified in Section 11, the Concessioner shall, at the request of the Director, 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 immediate written notice of any material change in its insurance program, including without limitation, any cancellation of required insurance coverages. (b) Environmental Reporting
The Concessioner shall submit environmental reports as specified in Section 6 of this CONTRACT, and as otherwise required by the Director under the terms of 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
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otherwise, including, but not limited to, operational information.
Sec. 15. Suspension, Termination, or Expiration
(a) Suspension
The Director may temporarily suspend operations under this CONTRACT in whole or in part in order to protect Area visitors or to protect, conserve and preserve Area resources. No compensation of any nature shall be due the Concessioner by the Director 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 at any time in order to protect Area visitors, protect, conserve, and preserve Area resources, or to limit visitor services in the Area to those that continue to be necessary and appropriate.
(2) The Director may terminate this CONTRACT if the Director determines that the Concessioner has materially 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 those visitor services required or authorized by the Director pursuant to this CONTRACT, the requirement to pay the established franchise fee, the requirement to prepare and comply with an Environmental Management Program 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, 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 (two or more) 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 15(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 immediate notice (within five (5) days) after the filing of 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, NPS considers that this CONTRACT is not a lease but an executory contract exempt from inclusion in assets of Concessioner pursuant to 11 U.S.C. 365. (d) Requirements in the Event of Termination or Expiration
(1) In the event of termination of this CONTRACT for any reason or expiration of this CONTRACT, no compensation of any nature shall be due the Concessioner in the event of a termination or expiration 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, or upon its expiration, and except as otherwise provided in this section, the Concessioner shall, at the Concessioner's expense, promptly vacate the Area, remove all of the Concessioner's personal property, repair any injury occasioned by installation or removal of such property, and ensure that Concession Facilities are in at least as good condition as they were at the beginning of the term of this CONTRACT, reasonable wear and tear excepted. The removal of such personal property must occur within thirty (30) days after the termination of this CONTRACT for any reason or its expiration (unless the Director in particular circumstances requires immediate removal). No compensation is due the Concessioner from the Director or a successor concessioner for the Concessioner's personal property used in operations under this CONTRACT. However, 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 in accordance with the terms of this CONTRACT 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 the Concessioner by the Director to the extent consistent with Applicable Laws.
Sec. 16. Assignment, Sale or Encumbrance of Interests
(a) This CONTRACT is subject to the requirements of Applicable Laws, including, without limitation, 36 CFR Part 51, with respect to proposed assignments and encumbrances, as those terms are defined by Applicable Laws. Failure by the Concessioner to comply with Applicable Laws 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 or operating rights under this CONTRACT, if obtained in violation of Applicable Laws.
(b) The Concessioner shall advise any person(s) or entity proposing to enter into a transaction which may be subject to Applicable Laws, including without limitation, 36 CFR Part 51, of the
[[Page 44906]]
requirements of Applicable Law and this CONTRACT.
Sec. 17. 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 the terms of Applicable Laws.
(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 provided by Applicable Laws.
(c) Subconcession or other third party agreements, including management agreements, for the provision of visitor services required and/or authorized under this CONTRACT are not permitted.
(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.
(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 ) This CONTRACT does not grant rights or benefits of any nature to any third party.
(j ) The invalidity of a specific provision of this CONTRACT shall not affect the validity of the remaining provisions of this CONTRACT.
(k) Waiver by the Director or the Concessioner of any breach of any of the terms of this CONTRACT by the other party shall not be deemed to be a waiver or elimination of such term, nor of any subsequent breach of the same type, nor of any other term of the CONTRACT. The subsequent acceptance of any payment of money or other performance required by this CONTRACT shall not be deemed to be a waiver of any preceding breach of any term of the CONTRACT.
(l) Claims against the Director (to the extent subject to 28 U.S.C. 2514) arising from this CONTRACT shall be forfeited to the Director by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof within the meaning of 28 U.S.C. 2514.
Section 18. Special Provisions
[Optional--To be used when operating and maintenance requirements are incorporated in the body of the contract, rather than as separate operating and maintenance plans.]
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:--------------------------------------------------------------
[Concessioner]
---------------------------------------------------------------------- (Name)
---------------------------------------------------------------------- (Name)
Exhibit A--Operating Plan
I. Introduction
This Operating Plan between ______ (hereinafter referred to as the ``Concessioner'') and [Park Unit Name] (hereinafter referred to as the ``Service'') shall serve as a supplement to Concession Contract CC-xxxxnnnn-yy (hereinafter referred to as the ``CONTRACT''). It describes specific operating responsibilities of the Concessioner and the Service with regard to those lands and facilities within [Park Unit Name] which are assigned to the Concessioner for the purposes authorized by the CONTRACT.
In the event of any conflict between the terms of the CONTRACT and this Operating Plan, the terms of the CONTRACT, including its designations and amendments, shall prevail.
This plan will be reviewed annually by the Superintendent in consultation with the Concessioner and revised as determined necessary by the Superintendent of [Park Unit Name].
Any revisions shall not be inconsistent with the main body of this CONTRACT. Any revisions must be reasonable and in furtherance of the purposes of the CONTRACT.
[From this point on, this document is tailored to the requirements of each individual park.]
Exhibit B--Nondiscrimination
Section I: Requirements Relating to Employment and Service to the Public
-
Employment
During the performance of this CONTRACT the Concessioner agrees as follows:
(1) The Concessioner will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, national origin, or disabling condition. The Concessioner will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, age, national origin, or disabling condition. Such action shall include, but not be limited to, the following: Employment upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Concessioner agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Secretary setting forth the provision of this nondiscrimination clause.
(2) The Concessioner will, in all solicitations or advertisements for employees placed by on behalf of the Concessioner, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, national origin, or disabling condition.
(3) The Concessioner will send to each labor union or representative of workers with which the Concessioner has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the Secretary, advising the labor union or workers' representative of the Concessioner's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(4) Within 120 days of the commencement of a contract every Government contractor or subcontractor holding a contract that
[[Page 44907]]
generates gross receipts which exceed $50,000 and having 50 or more employees shall prepare and maintain an affirmative action program at each establishment which shall set forth the contractor's policies, practices, and procedures in accordance with the affirmative action program requirement.
(5) The Concessioner will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The Concessioner will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to the Concessioner's books, records, and accounts by the Secretary of the Interior and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Concessioner's noncompliance with the nondiscrimination clauses of this CONTRACT or with any of such rules, regulations, or orders, this CONTRACT may be canceled, terminated or suspended in whole or in part and the Concessioner may be declared ineligible for further Government concession contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The Concessioner will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, so that such provisions will be binding upon each subcontractor or vendor. The Concessioner will take such action with respect to any subcontract or purchase order as the Secretary may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the Concessioner becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Secretary, the Concessioner may request the United States to enter into such litigation to protect the interests of the United States.
-
Construction, Repair, and Similar Contracts
The preceding provisions A(1) through A(8) governing performance of work under this CONTRACT, as set out in Section 202 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, shall be applicable to this CONTRACT, and shall be included in all contracts executed by the Concessioner for the performance of construction, repair, and similar work contemplated by this CONTRACT, and for that purpose the term ``CONTRACT'' shall be deemed to refer to this instrument and to contracts awarded by the Concessioner and the term ``Concessioner'' shall be deemed to refer to the Concessioner and to contractors awarded contacts by the Concessioner.
-
Facilities
(1) Definitions: As used herein:
(i) Concessioner shall mean the Concessioner and its employees, agents, lessees, sublessees, and contractors, and the successors in interest of the Concessioner;
(ii) facility shall mean any and all services, facilities, privileges, accommodations, or activities available to the general public and permitted by this agreement.
(2) The Concessioner is prohibited from:
(i) Publicizing facilities operated hereunder in any manner that would directly or inferentially reflect upon or question the acceptability of any person because of race, color, religion, sex, age, national origin, or disabling condition;
(ii) Discriminating by segregation or other means against any person.
Section II: Accessibility
Title V, Section 504, of the Rehabilitation Act of 1973, as amended in 1978, requires that action be taken to assure that any ``program'' or ``service'' being provided to the general public be provided to the highest extent reasonably possible to individuals who are mobility impaired, hearing impaired, and visually impaired. It does not require architectural access to every building or facility, but only that the service or program can be provided somewhere in an accessible location. It also allows for a wide range of methods and techniques for achieving the intent of the law, and calls for consultation with disabled persons in determining what is reasonable and feasible.
No handicapped person shall, because a Concessioner's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity receiving Federal financial assistance or conducted by any Executive agency or by the U.S. Postal Service.
-
Discrimination Prohibited
A Concessioner, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(1) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(2) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(3) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;
(4) Provide different or separate aids, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program;
(6) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(7) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
-
Existing Facilities
A Concessioner shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not require a Concessioner to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.
Exhibit C--Assigned Land and Real Property Improvements (Concession Facilities)
Land Assigned: Land is assigned in accordance with the boundaries shown on the following map[s]:
Real Property Improvements Assigned: The following real property improvements are assigned to the concessioner for use in conducting its operations under this CONTRACT:
Building Number Description
Approved, effective______, 20______. By:------------------------------------------------------------------- Regional Director, ______ Region
Exhibit D--Assigned Government Personal Property
Government personal property is assigned to the Concessioner for the purposes of this CONTRACT as follows:
Property Number Description of Item
Effective, this______ day of ______, 20______. By:------------------------------------------------------------------- Regional Director, ______ Region
Exhibit E--Maintenance Plan
I. Introduction
This Maintenance Plan between ______ (hereinafter referred to as the ``Concessioner'') and [Park Unit Name], National Park Service (hereinafter referred to as the ``Service'') shall serve as a supplement to Concession Contract CC-xxxxnnnn-yy (hereinafter referred to as the ``CONTRACT''). It sets forth the maintenance responsibilities of the Concessioner and the Service with regard to those lands and facilities within [Park Unit Name] which are assigned to the Concessioner for the purposes authorized by the CONTRACT.
In the event of any apparent conflict between the terms of the CONTRACT and this Maintenance Plan, the terms of the CONTRACT, including its designations and amendments, shall prevail.
[[Page 44908]]
This plan shall remain in effect until superseded or amended. It will be reviewed annually by the Superintendent in consultation with the Concessioner and revised as determined necessary by the Superintendent of [Park Unit Name]. Revisions may not be inconsistent with the terms and conditions of the main body of this CONTRACT. Revisions must be reasonable and in furtherance of the purposes of this CONTRACT.
[From this point on, this document is tailored to the requirements of each individual park.]
Exhibit F--Insurance Requirements
I. Insurance Requirements
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 the CONTRACT:
II. Liability Insurance
The following Liability Coverages are to be maintained at a minimum, all of which are to be written on an occurrence basis only. The Concessioner may attain the limits specified below by means of supplementing the respective coverage(s) with Excess or Excess ``Umbrella'' Liability.
-
Commercial General Liability
-
Coverage will be provided for bodily injury, property damage, personal or advertising injury liability (and must include Contractual Liability and Products/Completed Operations Liability).
Bodily Injury and Property Damage Limit Products/Completed Operations Limit Personal Injury & Advertising Injury Limit General Aggregate Fire Damage Legal Liability ``per fire''
-
The liability coverages may not contain the following exclusions/limitations:
-
Athletic or Sports Participants b. Products/Completed Operations c. Personal Injury or Advertising Injury exclusion or limitation d. Contractual Liability limitation e. Explosion, Collapse and Underground Property Damage exclusion f. Total Pollution exclusion g. Watercraft limitations affecting the use of watercraft in the course of the concessioner's operations (unless separate Watercraft coverage is maintained)
-
-
For all lodging facilities and other indoor facilities where there may be a large concentration of people, the pollution exclusion may be amended so that it does not apply to the smoke, fumes, vapor or soot from equipment used to heat the building.
-
If the policy insures more than one location, the General Aggregate limit must be amended to apply separately to each location, or, at least, separately to the appropriate NPS location(s).
-
-
Automobile Liability
Coverage will be provided for bodily injury or property damage arising out of the ownership, maintenance or use of ``any auto,'' Symbol 1. (Where there are no owned autos, coverage applicable to ``hired'' and ``non-owned'' autos, ``Symbols 8 & 9,'' shall be maintained.)
Each Accident Limit
-
Liquor Liability (if applicable)
Coverage will be provided for bodily injury or property damage including damages for care, loss of services, or loss of support arising out of the selling, serving or furnishing of any alcoholic beverage.
Each Common Cause Limit Aggregate Limit
-
Watercraft Liability (or Protection & Indemnity) (if applicable)
Coverage will be provided for bodily injury or property damage arising out of the use of any watercraft.
Each Occurrence Limit
-
Aircraft Liability (if applicable)
Coverage will be provided for bodily injury or property damage arising out of the use of any aircraft.
Each Person Limit Property Damage Limit Each Accident Limit
-
Garage Liability (if applicable)
This coverage is not required, but may be used in place of Commercial General Liability and Auto Liability coverages for some operations. Coverage will be provided for bodily injury, property damage, personal or advertising injury liability arising out of garage operations (including products/completed operations and contractual liability) as well as bodily injury and property damage arising out of the use of automobiles.
Each Accident Limits--Garage Operations Auto Only Other Than Auto Only Personal Injury & Advertising Injury Limit Fire Damage Legal Liability ``per fire'' Aggregate Limit--Garage Operations Other Than Auto Only
If owned vehicles are involved, Liability coverage should be applicable to ``any auto'' (``Symbol 21'') otherwise, coverage applicable to ``hired'' and ``non-owned'' autos (``Symbols 28 & 29'') should be maintained.
-
Excess Liability or Excess ``Umbrella'' Liability
This coverage is not required, but may be used to supplement any of the above Liability coverage policies in order to arrive at the required minimum limit of liability. If maintained, coverage will be provided for bodily injury, property damage, personal or advertising injury liability in excess of scheduled underlying insurance. In addition, coverage shall be at least as broad as that provided by underlying insurance policies and the limits of underlying insurance shall be sufficient to prevent any gap between such minimum limits and the attachment point of the coverage afforded under the Excess Liability or Excess ``Umbrella'' Liability policy.
-
Care, Custody and Control--Legal Liability (Describe Specific Coverage)
Coverage will be provided for damage to property in the care, custody or control of the concessioner.
Any One Loss
I. Environmental Impairment Liability
Coverage will be provided for bodily injury, personal injury or property damage arising out of pollutants or contaminants (on site and/or offsite).
Each Occurrence or Each Claim Limit Aggregate Limit
-
Special Provisions for Use of Aggregate Policies
At such time as the aggregate limit of any required policy is (or if it appears that it will be) reduced or exhausted, the concessioner may be required to reinstate such limit or purchase additional coverage limits.
-
Self-Insured Retentions
Self-insured retentions on any of the above described Liability insurance policies (other than Excess ``Umbrella'' Liability, if maintained) may not exceed $5,000.
L. Workers Compensation & Employers' Liability
Coverage will comply with the statutory requirements of the state(s) in which the concessioner operates.
III. Property Insurance
-
Building(s) and/or Contents Coverage
-
Insurance shall cover buildings, structures, improvements & betterments and/or contents for all Concession Facilities, as more specifically described in Exhibit D of this CONTRACT.
-
Coverage shall apply on an ``All Risks'' or ``Special Coverage'' basis.
-
The policy shall provide for loss recovery on a Replacement Cost basis.
-
The amount of insurance should represent no less than 90% of the Replacement Cost value of the insured property.
-
The coinsurance provision, if any, shall be waived or suspended by an Agreed Amount or Agreed Value clause.
-
Coverage is to be provided on a blanket basis.
-
The Vacancy restriction, if any, must be eliminated for property that will be vacant beyond any vacancy time period specified in the policy.
-
Flood Coverage shall be maintained with a limit of not less than $
-
Earthquake Coverage shall be maintained with a limit of not less than $
-
Ordinance or Law Coverage shall be maintained with a limit of not less than $
-
-
Boiler & Machinery Coverage
-
Insurance shall apply to all pressure objects within Concession Facilities.
-
The policy shall provide for loss recovery on a Replacement Cost basis.
-
The amount of insurance should represent no less than 75% of the Replacement Cost value of the insured property.
[[Page 44909]]
-
The coinsurance provision, if any, shall be waived or suspended by an Agreed Amount or Agreed Value clause.
-
Coverage is to be provided on a blanket basis.
-
If insurance is written with a different insurer than the Building(s) and Contents insurance, both the Property and Boiler insurance policies must be endorsed with a joint loss agreement.
-
Ordinance or Law Coverage shall be maintained with a limit of not less than $
-
-
Builders Risk Coverage
-
Insurance shall cover new buildings or structures under construction at the Concession Facilities, and include coverage for property that has or will become a part of the project while such property is at the project site, at temporary off-site storage and while in transit. Coverage should also apply to temporary structures such as scaffolding and construction forms.
-
Coverage shall apply on an ``All Risks'' or ``Special Coverage'' basis.
-
The policy shall provide for loss recovery on a Replacement Cost basis.
-
The amount of insurance should represent no less than 90% of the Replacement Cost value of the insured property.
-
The coinsurance provision, if any, shall be waived or suspended by an Agreed Amount or Agreed Value clause.
-
Any occupancy restriction must be eliminated.
-
Any collapse exclusion must be eliminated.
-
Any exclusion for loss caused by faulty workmanship must be eliminated.
-
Flood Coverage shall be maintained with a limit of not less than $
-
Earthquake Coverage shall be maintained with a limit of not less than $
-
-
Business Interruption and/or Expense
-
Business Interruption insurance, if maintained by the Concessioner, should cover the loss of income and continuation of fixed expenses in the event of damage to or loss of Concession Facilities. Extra Expense insurance shall cover the extra expenses above normal operating expenses to continue operations in the event of damage or loss to covered property.
-
-
Deductibles
Property Insurance coverages described above may be subject to deductibles as follows:
-
Direct Damage deductibles shall not exceed the lesser of 10% of the amount of insurance or $25,000 (except Flood & Earthquake coverage may be subject to deductibles not exceeding $50,000).
-
Extra Expense deductibles (when coverage is not combined with Business Interruption) shall not exceed $25,000.
-
-
Required Clauses
-
Loss Payable Clause:
A loss payable clause similar to the following must be added to Buildings and/or Contents, Boiler and Machinery, and Builders Risk policies:
``In accordance with Concession Contract No. ______ dated ______, between the United States of America and [the Concessioner] payment of insurance proceeds resulting from damage or loss of structures insured under this policy is to be disbursed directly to the Concessioner without requiring endorsement by the United States of America.''
IV. Construction Project Insurance
Concessioners entering into contracts with outside contractors for various construction projects, including major renovation projects, rehabilitation projects, additions or new buildings/ facilities will be responsible to ensure that all contractors retained for such work maintain an insurance program that adequately covers the construction project.
The insurance maintained by the construction and construction- related contractors shall comply with the insurance requirements stated herein (for Commercial General Liability, Automobile Liability, Workers' Compensation and, if professional services are involved, Professional Liability). Where appropriate, the interests of the Concessioner and the United States shall be covered in the same fashion as required in the Commercial Operator Insurance Requirements. The amounts/limits of the required coverages shall be determined in consultation with the Director taking into consideration the scope and size of the project.
V. Insurance Company Minimum Standards
All insurance companies providing the above described insurance coverages must meet the minimum standards set forth below:
-
All insurers for all coverages must be rated no lower than A- by the most recent edition of Best's Key Rating Guide (Property- Casualty edition).
-
All insurers for all coverages must have a Best's Financial Size Category of at least VIII according to the most recent edition of Best's Key Rating Guide (Property-Casualty edition).
-
All insurers must be admitted (licensed) in the state in which the concessioner is domiciled.
VI. Certificates of Insurance
All certificates of Insurance required by this CONTRACT shall be completed in sufficient detail to allow easy identification of the coverages, limits, and coverage amendments that are described above. In addition, the insurance companies must be accurately listed along with their A.M. Best Identification Number (``AMB#''). The name, address and telephone number of the issuing insurance agent or broker must be clearly shown on the certificate of insurance as well.
Due to the space limitations of most standard certificates of insurance, it is expected that an addendum will be attached to the appropriate certificate(s) in order to provide the space needed to show the required information.
In addition to providing certificates of insurance, the concessioner, upon written request of the Director, shall provide the Director with a complete copy of any of the insurance policies (or endorsements thereto) required herein to be maintained by the concessioner.
VII. Statutory Limits
In the event that a statutorily required limit exceeds a limit required herein, the higher statutorily required limit shall be considered the minimum to be maintained.
Category III Contract
United States Department of the Interior; National Park Service
----------------------------------------------------------------------
[Name of Area]
----------------------------------------------------------------------
[Site]
----------------------------------------------------------------------
[Type of Service]
Concession Contract No.----------------------------------------------- ----------------------------------------------------------------------
[Name of Concessioner]
----------------------------------------------------------------------
[Address, including email address and phone number]
Doing Business As-----------------------------------------------------
Covering the Period--------------------------------------------------- through---------------------------------------------------------------
Concession Contract
Table of Contents
Identification of the Parties
Sec. 1 Term of Contract
Sec. 2 Definitions
Sec. 3 Services and Operations
-
-
Required and Authorized Visitor Services B. Operation and Quality of Operation C. Operating and Maintenance Plan [OPTIONAL] D. Merchandise and Services E. Rates F. Impartiality as to Rates and Services
Sec. 4 Concessioner Personnel
Sec. 5 Legal, Regulatory, and Policy Compliance
-
Legal, Regulatory, and Policy Compliance B. Notice C. How and Where to Send Notice
Sec. 6 Environmental and Cultural Protection
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Environmental Management Objectives B. Environmental Management Program C. Environmental Management Measurement D. Environmental Data, Reports, Notifications, and Approvals E. Corrective Action F. Indemnification and Cost Recovery for Concessioner Environmental Activities G. Weed and Pest Management H. Protection of Cultural and Archeological Resources
Sec. 7 Fees
-
Franchise Fee B. Payments Due C. Interest D. Adjustment of Franchise Fee [OPTIONAL]
Sec. 8 Indemnification and Insurance
-
Indemnification B. Insurance in General C. Commercial Public Liability
Sec. 9. Bonds and Liens
-
Bonds
[[Page 44910]]
-
Lien
Sec. 10 Accounting Records and Reports
-
Accounting System B. Annual Financial Report C. Other Financial Reports
Sec. 11 Other Reporting Requirements
-
Insurance Certification B. Environmental Reporting C. Miscellaneous Reports and Data.
Sec. 12 Suspension, Termination, or Expiration
-
Suspension B. Termination C. Notice of Bankruptcy or Insolvency D. Requirements in the Event of Termination or Expiration
Sec. 13 Assignment, Sale or Encumbrance of Interests
Sec. 14 General Provisions
Sec. 15 Special Provisions [Optional]
Exhibits
Exhibit A: Assigned Government Personal Property Exhibit B: Operating and Maintenance Plan [OPTIONAL] Exhibit C: Nondiscrimination. Exhibit D: Insurance Requirements
[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
(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 ______ a partnership organized under the laws of the State of ______, 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 wildlife 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 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; and
Whereas, the Director desires the Concessioner to conduct these visitor services in a manner that demonstrates sound environmental management, stewardship, and leadership;
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 ______ (______) years until its expiration on ______, 20 ______.
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 (e.g., 36 CFR Part 51), 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 protection of public health and safety.
(b) ``Area'' means the property within the boundaries of [Name of Park Unit].
(c) ``Best Management Practices'' or ``BMPs'' are policies and practices that apply the most current and advanced means and technologies available to the Concessioner to undertake and maintain a superior level of environmental performance reasonable in light of the circumstances of the operations conducted under this CONTRACT. BMPs are expected to change from time to time as technology evolves with a goal of sustainability of the Concessioner's operations. Sustainability of operations refers to operations that have a restorative or net positive impact on the environment.
(d) ``Concession Facilities'' shall mean all Area lands assigned to the Concessioner under this CONTRACT and all real property improvements assigned to the Concessioner under this CONTRACT. The United States retains title and ownership to all Concession Facilities. (4)
(e) ``Days'' shall mean calendar days.
(f) ``Director'' means the Director of the National Park Service, acting on behalf of the Secretary of the Interior and the United States, and his duly authorized representatives.
(g) ``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.
(h) ``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:
(1) Intracompany earnings on account of charges to other departments of the operation (such as laundry);
(5) Charges for employees' meals, lodgings, and transportation;
(6) Cash discounts on purchases;
(7) Cash discounts on sales;
(5) Returned sales and allowances;
(6) Interest on money loaned or in bank accounts;
(7) Income from investments;
(8) Income from subsidiary companies outside of the Area;
(9) Sale of property other than that purchased in the regular course of business for the purpose of resale;
(10) Sales and excise taxes that are added as separate charges to 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;
(11) Receipts from the sale of handicrafts that have been approved for sale by the Director as constituting authentic American Indian, Alaskan Native, Native Samoan, or Native Hawaiian handicrafts.
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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.
(i) ``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 a subconcession contract. A subconcessioner will report all of its gross receipts to the Concessioner without allowances, exclusions, or deductions of any kind or nature.
(j) ``Subconcessioner'' means a third party that, with the approval of the Director, has been granted by a concessioner rights to operate under a concession contract (or any portion thereof), whether in consideration of a percentage of revenues or otherwise.
(k) ``Superintendent'' means the manager of the Area.
(l) ``Visitor services'' means the accommodations, facilities and services that the Concessioner is required and/or 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:
[Provide a 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.]
The Concessioner shall not be authorized to construct any Capital Improvements (as defined in Applicable Laws including without limitation 36 CFR Part 51) upon Area lands. The Concessioner shall not obtain a Leasehold Surrender Interest (as defined in Applicable Laws, including without limitation 36 CFR Part 51) or other compensable interest in Capital Improvements constructed or installed in violation of this CONTRACT. (b) Operation, Maintenance and Quality of Operation
(1) The Concessioner shall provide, operate and maintain the required and authorized visitor services in accordance with this CONTRACT to such an extent and in a manner considered satisfactory by the Director. The Concessioner's authority to provide visitor services under the terms of this CONTRACT is non-exclusive.
(2) The Concessioner shall provide and maintain all personal property necessary for its operations under this CONTRACT.
(3) The Director may provide certain items of government personal property, including without limitation removable equipment, and goods, for the Concessioner's use in the performance of this CONTRACT. The Director hereby assigns government personal property listed in Exhibit A to the Concessioner as of the effective date of this CONTRACT. This Exhibit A 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 assigned to it and shall be responsible for maintaining the property 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. (c) Operating and Maintenance Plan
[Optional--This section may be deleted and operating requirements incorporated under Section 18, Special Provisions.]
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 and Maintenance Plan (including, without limitation, a risk management program, that must be adhered to by the Concessioner). The initial Operating and Maintenance Plan is attached to this CONTRACT as Exhibit B. The Director in his discretion, after consultation with the Concessioner, may make reasonable modifications to the initial Operating and Maintenance Plan that are in furtherance of the purposes of this CONTRACT and are not inconsistent with the terms and conditions of the main body of this CONTRACT. (e) 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 promotional material, regardless of media format (i.e., printed, electronic, broadcast media), provided to the public by the Concessioner in connection with the services provided under this CONTRACT 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) [OPTIONAL--To be used only if the concessioner is authorized to sell merchandise.] The Concessioner, where applicable, will develop and implement a plan satisfactory to the Director that will assure that 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 Applicable Laws and guidelines promulgated by the Director from time to time. (f) Impartiality as to Rates and Services
(1) Subject to Section (f)(2) and (f)(3), 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 C.
(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 the Concessioner's complimentary or reduced rate policies and practices as part of its rate approval process.
(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
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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) The Concessioner shall provide all personnel necessary to provide the visitor services required and authorized by this CONTRACT.
(b) The Concessioner shall comply with all Applicable Laws relating to employment and employment conditions, including, without limitation, those set forth in Exhibit C.
(c) 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.
(d) 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 to whom an offer for employment may be extended to assure that they conform to the hiring policies established by the Concessioner.
(e) 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.
(f) 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 correct the situation.
(g) The Concessioner shall maintain, to the greatest extent possible, a drug free environment, both in the workplace and in any Concessioner employee housing, within the Area.
(h) 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.
(i) 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 is found to be in violation of the prohibition on the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.
Sec. 5. Legal, Regulatory, and 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 by the Concessioner, including its employees, agents or contractors, 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 Management Objectives
The Concessioner shall meet the following environmental management objectives (hereinafter ``Environmental Management Objectives'') in the conduct of its operations under this CONTRACT:
(1) The Concessioner, including its employees, agents and contractors, shall comply with all Applicable Laws pertaining to the protection of human health and the environment.
(2) The Concessioner shall incorporate Best Management Practices (BMPs) in its operation, construction, maintenance, acquisition, provision of visitor services, and other activities under this CONTRACT. (b) Environmental Management Program
(1) The Concessioner shall develop, document, implement, and comply fully with, to the satisfaction of the Director, a comprehensive written Environmental Management Program (EMP) to achieve the Environmental Management Objectives. The initial EMP shall be developed and submitted to the Director for approval within sixty days of the effective date of this CONTRACT. The Concessioner shall submit to the Director for approval a proposed updated EMP annually.
(2) The EMP shall account for all activities with potential environmental impacts conducted by the Concessioner or to which the Concessioner contributes. The scope and complexity of the EMP may vary based on the type, size and number of Concessioner activities under this CONTRACT.
(3) The EMP shall include, without limitation, the following elements:
(i) Policy. The EMP shall provide a clear statement of the Concessioner's commitment to the Environmental Management Objectives.
(ii) Goals and Targets. The EMP shall identify environmental goals established by the Concessioner consistent with all Environmental Management Objectives. The EMP shall also identify specific targets (i.e. measurable results and schedules) to achieve these goals.
(iii) Responsibilities and Accountability. The EMP shall identify environmental responsibilities for Concessioner employees and
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contractors. The EMP shall include the designation of an environmental program manager. The EMP shall include procedures for the Concessioner to implement the evaluation of employee and contractor performance against these environmental responsibilities.
(iv) Documentation. The EMP shall identify plans, procedures, manuals, and other documentation maintained by the Concessioner to meet the Environmental Management Objectives.
(v) Documentation Control and Information Management System. The EMP shall describe (and implement) document control and information management systems to maintain knowledge of Applicable Laws and BMPs. In addition, the EMP shall identify how the Concessioner will manage environmental information, including without limitation, plans, permits, certifications, reports, and correspondence.
(vi) Reporting. The EMP shall describe (and implement) a system for reporting environmental information on a routine and emergency basis, including providing reports to the Director under this CONTRACT.
(vii) Communication. The EMP shall describe how the environmental policy, goals, targets, responsibilities and procedures will be communicated throughout the Concessioner's organization.
(viii) Training. The EMP shall describe the environmental training program for the Concessioner, including identification of staff to be trained, training subjects, frequency of training and how training will be documented.
(ix) Monitoring, Measurement, and Corrective Action. The EMP shall describe how the Concessioner will comply with the EMP and how the Concessioner will self-assess its performance under the EMP, a least annually, in a manner consistent with NPS protocol regarding audit of NPS operations. The self-assessment should ensure the Concessioner's conformance with the Environmental Management Objectives and measure performance against environmental goals and targets. The EMP shall also describe procedures to be taken by the Concessioner to correct any deficiencies identified by the self-assessment. (c) Environmental Performance Measurement
The Concessioner shall be evaluated by the Director on its environmental performance under this CONTRACT, including, without limitation, compliance with the approved EMP, on at least an annual basis. (d) Environmental Data, Reports, Notifications, and Approvals
(1) Inventory of Hazardous Substances and Inventory of Waste Streams. The Concessioner shall submit to the Director, at least annually, an inventory of federal Occupational Safety and Health Administration (OSHA) designated hazardous chemicals used and stored in the Area by the Concessioner. The Director may prohibit the use of any OSHA hazardous chemical by the Concessioner in operations under this CONTRACT. The Concessioner shall obtain the Director's approval prior to using any extremely hazardous substance, as defined in the Emergency Planning and Community Right to Know Act of 1986, in operations under this CONTRACT. The Concessioner shall also submit to the Director, at least annually, an inventory of all waste streams generated by the Concessioner under this CONTRACT. Such inventory shall include any documents, reports, monitoring data, manifests, and other documentation required by Applicable Laws regarding waste streams.
(2) Reports. The Concessioner shall submit to the Director copies of all documents, reports, monitoring data, manifests, and other documentation required under Applicable Laws to be submitted to regulatory agencies. The Concessioner shall also submit to the Director any environmental plans for which coordination with Area operations are necessary and appropriate, as determined by the Director in accordance with Applicable Laws.
(3) Notification of Releases. The Concessioner shall give the Director immediate written notice of any discharge, release or threatened release (as these terms are defined by Applicable Laws) within or at the vicinity of the Area, (whether solid, semi-solid, liquid or gaseous in nature) of any hazardous or toxic substance, material, or waste of any kind, including, without limitation, building materials such as asbestos, or any contaminant, pollutant, petroleum, petroleum product or petroleum by-product.
(4) Notice of Violation. The Concessioner shall give the Director in writing immediate notice of any written threatened or actual notice of violation from other regulatory agencies of any Applicable Law arising out of the activities of the Concessioner, its agents or employees.
(5) Communication with Regulatory Agencies. The Concessioner shall provide timely written advance notice to the Director of communications, including without limitation, meetings, audits, inspections, hearings and other proceedings, between regulatory agencies and the Concessioner related to compliance with Applicable Laws concerning operations under this CONTRACT. The Concessioner shall also provide to the Director any written materials prepared or received by the Concessioner in advance of or subsequent to any such communications. The Concessioner shall allow the Director to participate in any such communications. The Concessioner shall also provide timely notice to the Director following any unplanned communications between regulatory agencies and the Concessioner. (e) Corrective Action
(1) The Concessioner, at its sole cost and expense, shall promptly control and contain any discharge, release or threatened release, as set forth in this section, or any threatened or actual violation, as set forth in this section, arising in connection with the Concessioner's operations under this CONTRACT, including, but not limited to, payment of any fines or penalties imposed by appropriate agencies. Following the prompt control or containment of any release, discharge or violation, the Concessioner shall take all response actions necessary to remediate the release, discharge or violation, and to protect human health and the environment.
(2) 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, or transported onto or into the Area by the Concessioner to ensure that the Area remains in good condition. (f) Indemnification and Cost Recovery for Concessioner Environmental Activities
(1) The Concessioner shall indemnify the United States in accordance with Section 8 of this CONTRACT from all losses, claims, damages, environmental injuries, expenses, response costs, allegations or judgments (including, without limitation, fines and penalties) and expenses (including, without limitation, attorneys fees and experts' fees) arising out of the activities of the Concessioner, its employees, agents and contractors pursuant to this section. Such indemnification shall survive termination or expiration of this CONTRACT.
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(2) If the Concessioner does not promptly contain and remediate an unauthorized discharge or release arising out of the activities of the Concessioner, its employees, agents and contractors, as set forth in this section, or correct any environmental self-assessment finding of non-compliance, in full compliance with Applicable Laws, the Director may, in its sole discretion and after notice to the Concessioner, take any such action consistent with Applicable Laws as the Director deems necessary to abate, mitigate, remediate, or otherwise respond to such release or discharge, or take corrective action on the environmental self-assessment finding. The Concessioner shall be liable for and shall pay to the Director any costs of the Director associated with such action upon demand. Nothing in this section shall preclude the Concessioner from seeking to recover costs from a responsible third party. (g) Weed and Pest Management
The Concessioner shall be responsible for managing weeds, and through an integrated pest management program, harmful insects, rats, mice and other pests on Concession Facilities assigned to the Concessioner under this CONTRACT. All such weed and pest management activities shall be in accordance with Applicable Laws and guidelines established by the Director. (j) 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, agents and contractors, except in accordance with Applicable Laws, and only with the prior approval of the Director. Discoveries of any archeological resources by the 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. 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 fee 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. In the event of termination or expiration of this CONTRACT, overpayments will first be offset against any amounts due and owing the Government, and the remainder will be paid to the Concessioner.
(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) Adjustment of Franchise Fee
[OPTIONAL-Include only if contract term is greater than 5 years.]
(1) The Concessioner or the Director may request, in the event that either 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 or the Director must make a request for a reconsideration by mailing, within sixty (60) days from the date that the party becomes aware, or should have become aware, of the possible extraordinary, unanticipated changes, a written notice to the other party that includes a description of the possible extraordinary, unanticipated changes and why the party believes they have affected or will significantly affect the probable value of the privileges granted by this CONTRACT.
(3) If the Concessioner and the Director agree that extraordinary, unanticipated changes have occurred, the Concessioner and the Director will undertake good faith negotiations 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 Concessioner and the Director agree 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, prospectively as of the date of agreement.
(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 must be made by mailing written 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 written 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. Unless otherwise agreed by the parties, the arbitration panel shall establish the procedures of the arbitration. Such procedures must provide each party a fair and equal opportunity to present its position on the matter to the arbitration panel.
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(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 presentations.
(8) Any adjustment to the franchise fee resulting from this section shall be prospective only.
(10) Any adjustment to the franchise fee will be embodied in an amendment to this CONTRACT.
(10) 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. 8. 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 connected with or arising out of the activities of the Concessioner, its employees, agents or contractors 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 as determined by the Director. The initial insurance requirements are set forth below and in Exhibit D. Any changed or additional requirements that the Director determines necessary must be reasonable and consistent with the types and coverage amounts of insurance a prudent businessperson would purchase in similar circumstances. 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 immediate written notice of any material change in the Concessioner's insurance program hereunder, including without limitation, cancellation of any required insurance coverages. (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, agents or contractors, 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 D. Furthermore, the commercial general liability package shall provide no less than the coverages and limits described in Exhibit D.
(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 D to revise the minimum required limits or to require additional types of insurance, provided that any additional requirements must be reasonable and consistent with the types of insurance a prudent businessperson would purchase in similar circumstances.
Sec. 9. Bonds
The Director may require the Concessioner to furnish appropriate forms of bonds in amounts reasonable in the circumstances and acceptable to the Director, in order to ensure faithful performance of the Concessioner's obligations under this CONTRACT.
Sec. 10. 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 accounts in such manner that there can be no diversion or concealment of profits or expenses in the operations authorized under this CONTRACT 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 one hundred twenty (120) 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 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 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.
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(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 annual gross receipts, by an independent Certified Public Accountant.
Sec. 11. Other Reporting Requirements
The following describes certain other reports required under this CONTRACT: (a) Insurance Certification
As specified in Section 8, the Concessioner shall, at the request of the Director, 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 immediate written notice of any material change in its insurance program, including without limitation, any cancellation of required insurance coverages. (b) Environmental Reporting
The Concessioner shall submit environmental reports as specified in Section 6 of this CONTRACT, and as otherwise required by the Director under the terms of 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. 12. Suspension, Termination, or Expiration
(a) Suspension
The Director may temporarily suspend operations under this CONTRACT in whole or in part in order to protect Area visitors or to protect, conserve and preserve Area resources. No compensation of any nature shall be due the Concessioner by the Director 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 at any time in order to protect Area visitors, protect, conserve, and preserve Area resources, or to limit visitor services in the Area to those that continue to be necessary and appropriate.
(2) The Director may terminate this CONTRACT if the Director determines that the Concessioner has materially 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 those visitor services required or authorized by the Director pursuant to this CONTRACT, the requirement to pay the established franchise fee, the requirement to prepare and comply with an Environmental Management Program 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, 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 (two or more) 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 12(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 immediate notice (within five (5) days) after the filing of 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, NPS considers that this CONTRACT is not a lease but an executory contract exempt from inclusion in assets of Concessioner pursuant to 11 U.S.C. 365. (d) Requirements in the Event of Termination or Expiration
(1) In the event of termination of this CONTRACT for any reason or expiration of this CONTRACT, no compensation of any nature shall be due the Concessioner in the event of a termination or expiration 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, or upon its expiration, and except as otherwise provided in this section, the Concessioner shall, at the Concessioner's expense, promptly vacate the Area, remove all of the Concessioner's personal property, and repair any injury occasioned by removal of such property. The removal of such personal property must occur within thirty (30) days after the termination of this CONTRACT for any reason or its expiration (unless the Director in particular circumstances requires immediate removal). No compensation is due the Concessioner from the Director or a successor concessioner for the Concessioner's personal property used in operations under this CONTRACT. However, the Director or a successor concessioner may purchase such personal property from the Concessioner subject to mutually agreed upon terms. Personal property not
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removed from the Area by the Concessioner in accordance with the terms of this CONTRACT 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 the Concessioner by the Director to the extent consistent with Applicable Laws.
Sec. 13. Assignment, Sale or Encumbrance of Interests
(a) This CONTRACT is subject to the requirements of Applicable Laws, including, without limitation, 36 CFR Part 51, with respect to proposed assignments and encumbrances, as those terms are defined by Applicable Laws. Failure by the Concessioner to comply with Applicable Laws 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 or operating rights under this CONTRACT, if obtained in violation of Applicable Laws.
(b) The Concessioner shall advise any person(s) or entity proposing to enter into a transaction which may be subject to Applicable Laws, including without limitation, 36 CFR Part 51, of the requirements of Applicable Law and this CONTRACT.
Sec. 14. 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 the terms of Applicable Laws.
(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 provided by Applicable Laws.
(c) Subconcession or other third party agreements, including management agreements, for the provision of visitor services required and/or authorized under this CONTRACT are not permitted.
(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.
(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) This CONTRACT does not grant rights or benefits of any nature to any third party.
(j) The invalidity of a specific provision of this CONTRACT shall not affect the validity of the remaining provisions of this CONTRACT.
(k) Waiver by the Director or the Concessioner of any breach of any of the terms of this CONTRACT by the other party shall not be deemed to be a waiver or elimination of such term, nor of any subsequent breach of the same type, nor of any other term of the CONTRACT. The subsequent acceptance of any payment of money or other performance required by this CONTRACT shall not be deemed to be a waiver of any preceding breach of any term of the CONTRACT.
(l) Claims against the Director (to the extent subject to 28 U.S.C. 2514) arising from this CONTRACT shall be forfeited to the Director by any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance thereof within the meaning of 28 U.S.C. 2514.
Section 15. Special Provisions
[Optional--To be used when operating and maintenance requirements are incorporated in the body of the contract, rather than as separate operating and maintenance plans.]
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
Exhibit A--Assigned Government Personal Property
Government personal property is assigned to the Concessioner for the purposes of this CONTRACT as follows:
Property Number Description of Item
Effective, this______day of______, 20______.
By:------------------------------------------------------------------- Regional Director,______Region
Exhibit B--Operating and Maintenance Plan
I. Introduction
This Operating and Maintenance Plan between ______ (hereinafter referred to as the ``Concessioner'') and [Park Unit Name] (hereinafter referred to as the ``Service'') shall serve as a supplement to Concession Contract CC-xxxxnnnn-yy (hereinafter referred to as the ``CONTRACT''). It describes specific operating and maintenance responsibilities of the Concessioner and the Service with regard to those lands utilized by the Concessioner for the purposes authorized by the CONTRACT.
In the event of any conflict between the terms of the CONTRACT and this Operating and Maintenance Plan, the terms of the CONTRACT, including its designations and amendments, shall prevail.
This plan will be reviewed annually by the Superintendent in consultation with the Concessioner and revised as determined necessary by the Superintendent of [Park Unit Name].
Any revisions shall not be inconsistent with the main body of this CONTRACT. Any revisions must be reasonable and in furtherance of the purposes of the CONTRACT.
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[From this point on, this document is tailored to the requirements of each individual park.]
Exhibit C--Nondiscrimination
Section I: Requirements Relating to Employment and Service to the Public
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Employment
During the performance of this CONTRACT the Concessioner agrees as follows:
(1) The Concessioner will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, national origin, or disabling condition. The Concessioner will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, age, national origin, or disabling condition. Such action shall include, but not be limited to, the following: Employment upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Concessioner agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Secretary setting forth the provision of this nondiscrimination clause.
(2) The Concessioner will, in all solicitations or advertisements for employees placed by on behalf of the Concessioner, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, age, national origin, or disabling condition.
(3) The Concessioner will send to each labor union or representative of workers with which the Concessioner has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the Secretary, advising the labor union or workers' representative of the Concessioner's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(4) Within 120 days of the commencement of a contract every Government contractor or subcontractor holding a contract that generates gross receipts which exceed $50,000 and having 50 or more employees shall prepare and maintain an affirmative action program at each establishment which shall set forth the contractor's policies, practices, and procedures in accordance with the affirmative action program requirement.
(5) The Concessioner will comply with all provisions of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The Concessioner will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to the Concessioner's books, records, and accounts by the Secretary of the Interior and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Concessioner's noncompliance with the nondiscrimination clauses of this CONTRACT or with any of such rules, regulations, or orders, this CONTRACT may be canceled, terminated or suspended in whole or in part and the Concessioner may be declared ineligible for further Government concession contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The Concessioner will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, so that such provisions will be binding upon each subcontractor or vendor. The Concessioner will take such action with respect to any subcontract or purchase order as the Secretary may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the Concessioner becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Secretary, the Concessioner may request the United States to enter into such litigation to protect the interests of the United States.
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Construction, Repair, and Similar Contracts
The preceding provisions A(1) through A(8) governing performance of work under this CONTRACT, as set out in Section 202 of Executive Order No. 11246 of September 24, 1965, as amended by Executive Order No. 11375 of October 13, 1967, shall be applicable to this CONTRACT, and shall be included in all contracts executed by the Concessioner for the performance of construction, repair, and similar work contemplated by this CONTRACT, and for that purpose the term ``CONTRACT'' shall be deemed to refer to this instrument and to contracts awarded by the Concessioner and the term ``Concessioner'' shall be deemed to refer to the Concessioner and to contractors awarded contacts by the Concessioner.
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Facilities
(2) Definitions: As used herein:
(k) Concessioner shall mean the Concessioner and its employees, agents, lessees, sublessees, and contractors, and the successors in interest of the Concessioner;
(ii) Facility shall mean any and all services, facilities, privileges, accommodations, or activities available to the general public and permitted by this agreement.
(2) The Concessioner is prohibited from:
(j) Publicizing facilities operated hereunder in any manner that would directly or inferentially reflect upon or question the acceptability of any person because of race, color, religion, sex, age, national origin, or disabling condition;
(ii) Discriminating by segregation or other means against any person.
Section II: Accessibility
Title V, Section 504, of the Rehabilitation Act of 1973, as amended in 1978, requires that action be taken to assure that any ``program'' or ``service'' being provided to the general public be provided to the highest extent reasonably possible to individuals who are mobility impaired, hearing impaired, and visually impaired. It does not require architectural access to every building or facility, but only that the service or program can be provided somewhere in an accessible location. It also allows for a wide range of methods and techniques for achieving the intent of the law, and calls for consultation with disabled persons in determining what is reasonable and feasible.
No handicapped person shall, because a Concessioner's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity receiving Federal financial assistance or conducted by any Executive agency or by the U.S. Postal Service.
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Discrimination Prohibited
A Concessioner, in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(1) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(2) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(3) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others;
(4) Provide different or separate aids, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program;
(6) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(7) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
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Existing Facilities
A Concessioner shall operate each program or activity so that the program or activity,
[[Page 44919]]
when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not require a Concessioner to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.
Exhibit F--Insurance Requirements
I. Insurance Requirements
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 the CONTRACT:
II. Liability Insurance
The following Liability Coverages are to be maintained at a minimum, all of which are to be written on an occurrence basis only. The Concessioner may attain the limits specified below by means of supplementing the respective coverage(s) with Excess or Excess ``Umbrella'' Liability.
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Commercial General Liability
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Coverage will be provided for bodily injury, property damage, personal or advertising injury liability (and must include Contractual Liability and Products/Completed Operations Liability).
Bodily Injury and Property Damage Limit Products/Completed Operations Limit Personal Injury & Advertising Injury Limit General Aggregate Fire Damage Legal Liability ``per fire''
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The liability coverages may not contain the following exclusions/limitations:
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Athletic or Sports Participants b. Products/Completed Operations c. Personal Injury or Advertising Injury exclusion or limitation d. Contractual Liability limitation e. Explosion, Collapse and Underground Property Damage exclusion f. Total Pollution exclusion g. Watercraft limitations affecting the use of watercraft in the course of the concessioner's operations (unless separate Watercraft coverage is maintained)
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For all lodging facilities and other indoor facilities where there may be a large concentration of people, the pollution exclusion may be amended so that it does not apply to the smoke, fumes, vapor or soot from equipment used to heat the building.
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If the policy insures more than one location, the General Aggregate limit must be amended to apply separately to each location, or, at least, separately to the appropriate NPS location(s).
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Automobile Liability
Coverage will be provided for bodily injury or property damage arising out of the ownership, maintenance or use of ``any auto,'' Symbol 1. (Where there are no owned autos, coverage applicable to ``hired'' and ``non-owned'' autos, ``Symbols 8 & 9,'' shall be maintained.)
Each Accident Limit
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Liquor Liability (if applicable)
Coverage will be provided for bodily injury or property damage including damages for care, loss of services, or loss of support arising out of the selling, serving or furnishing of any alcoholic beverage.
Each Common Cause Limit Aggregate Limit
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Watercraft Liability (or Protection & Indemnity) (if applicable)
Coverage will be provided for bodily injury or property damage arising out of the use of any watercraft.
Each Occurrence Limit
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Aircraft Liability (if applicable)
Coverage will be provided for bodily injury or property damage arising out of the use of any aircraft.
Each Person Limit Property Damage Limit Each Accident Limit
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Garage Liability (if applicable)
This coverage is not required, but may be used in place of Commercial General Liability and Auto Liability coverages for some operations. Coverage will be provided for bodily injury, property damage, personal or advertising injury liability arising out of garage operations (including products/completed operations and contractual liability) as well as bodily injury and property damage arising out of the use of automobiles.
Each Accident Limits--Garage Operations Auto Only Other Than Auto Only Personal Injury & Advertising Injury Limit Fire Damage Legal Liability ``per fire'' Aggregate Limit--Garage Operations Other Than Auto Only
If owned vehicles are involved, Liability coverage should be applicable to ``any auto'' (``Symbol 21'') otherwise, coverage applicable to ``hired'' and ``non-owned'' autos (``Symbols 28 & 29'') should be maintained.
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Excess Liability or Excess ``Umbrella'' Liability
This coverage is not required, but may be used to supplement any of the above Liability coverage policies in order to arrive at the required minimum limit of liability. If maintained, coverage will be provided for bodily injury, property damage, personal or advertising injury liability in excess of scheduled underlying insurance. In addition, coverage shall be at least as broad as that provided by underlying insurance policies and the limits of underlying insurance shall be sufficient to prevent any gap between such minimum limits and the attachment point of the coverage afforded under the Excess Liability or Excess ``Umbrella'' Liability policy.
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Care, Custody and Control--Legal Liability (Describe Specific Coverage)
Coverage will be provided for damage to property in the care, custody or control of the concessioner.
Any One Loss
I. Environmental Impairment Liability
Coverage will be provided for bodily injury, personal injury or property damage arising out of pollutants or contaminants (on site and/or offsite).
Each Occurrence or Each Claim Limit Aggregate Limit
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Special Provisions for Use of Aggregate Policies
At such time as the aggregate limit of any required policy is (or if it appears that it will be) reduced or exhausted, the concessioner may be required to reinstate such limit or purchase additional coverage limits.
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Self-Insured Retentions
Self-insured retentions on any of the above described Liability insurance policies (other than Excess ``Umbrella'' Liability, if maintained) may not exceed $5,000.
L. Workers Compensation & Employers' Liability
Coverage will comply with the statutory requirements of the state(s) in which the concessioner operates.
[[Page 44920]]
III. Insurance Company Minimum Standards
All insurance companies providing the above described insurance coverages must meet the minimum standards set forth below:
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All insurers for all coverages must be rated no lower than A-by the most recent edition of Best's Key Rating Guide (Property- Casualty edition).
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All insurers for all coverages must have a Best's Financial Size Category of at least VIII according to the most recent edition of Best's Key Rating Guide (Property-Casualty edition).
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All insurers must be admitted (licensed) in the state in which the concessioner is domiciled.
IV. Certificates of Insurance
All certificates of Insurance required by this CONTRACT shall be completed in sufficient detail to allow easy identification of the coverages, limits, and coverage amendments that are described above. In addition, the insurance companies must be accurately listed along with their A.M. Best Identification Number (``AMB#''). The name, address and telephone number of the issuing insurance agent or broker must be clearly shown on the certificate of insurance as well.
Due to the space limitations of most standard certificates of insurance, it is expected that an addendum will be attached to the appropriate certificate(s) in order to provide the space needed to show the required information.
In addition to providing certificates of insurance, the concessioner, upon written request of the Director, shall provide the Director with a complete copy of any of the insurance policies (or endorsements thereto) required herein to be maintained by the concessioner.
V. Statutory Limits
In the event that a statutorily required limit exceeds a limit required herein, the higher statutorily required limit shall be considered the minimum to be maintained.
Dated: July 3, 2000. Cynthia Orlando, Associate Director, Park Operations and Education, National Park Service.
[FR Doc. 00-17431Filed7-18-00; 8:45 am]
BILLING CODE 4310-70-P
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