standard concession license agreement with state parks office

RFP for Outdoor Recreation Programming Upper & Lower Niagara River

Request for Proposals X001171 Outdoor Recreation Programming

and Related Facilities Upper & Lower Niagara River

Niagara Falls, New York

ATTACHMENT A

Standard Concession License

2

NEW YORK STATE

OFFICE OF PARKS, RECREATION

AND HISTORIC PRESERVATION

License X123456

Niagara River Outdoor Recreation Activities

at

Niagara Falls State Park

and

Whirlpool State Park

and

DeVeaux Woods

and

Devils Hole State Park

Niagara Falls, NY

1

License X123456

Table of Contents

1. LICENSE DOCUMENTS ...................................................................................................................................... 1

2. DEFINITION OF TERMS ..................................................................................................................................... 2

3. TERM ............................................................................................................................................................... 3

4. GRANT OF LICENSE .......................................................................................................................................... 3

5. CONSIDERATION .............................................................................................................................................. 4

6. LICENSEES PROPOSAL ..................................................................................................................................... 4

7. LICENSEES BUSINESS PLAN ............................................................................................................................ 4

8. INSPECTION OF PREMISES ................................................................................................................................. 5

9. PERFORMANCE BOND LICENSE FEE .............................................................................................................. 5

10. CAPITAL INVESTMENT ..................................................................................................................................... 6

11. CONSTRUCTION BY LICENSEE .......................................................................................................................... 6

12. OPERATION OF THE LICENSED PREMISES ......................................................................................................... 7

13. FOOD PRODUCTS AND OTHER COMMODITIES FROM NEW YORK VENDORS ..................................................... 9

14. ADVERTISING ................................................................................................................................................... 9

15. SECURITY ....................................................................................................................................................... 10

16. MAINTENANCE AND REPAIRS ......................................................................................................................... 10

17. PRICING.......................................................................................................................................................... 12

18. QUALIFIED STAFF .......................................................................................................................................... 12

19. HOUSEKEEPING AND SANITATION .................................................................................................................. 13

20. UTILITIES, TRASH AND DEBRIS ...................................................................................................................... 14

21. USE OF BIODEGRADABLE/RECYCLABLE PRODUCTS ....................................................................................... 14

22. HAZARDOUS MATERIALS ............................................................................................................................... 14

23. OFFICIAL STATEWIDE OR REGIONAL PRODUCT SALES ................................................................................... 15

24. SALE OF ALCOHOLIC BEVERAGES AND TOBACCO PRODUCTS ........................................................................ 15

25. DELIVERIES .................................................................................................................................................... 15

26. SPONSORSHIPS ............................................................................................................................................... 15

27. SALE OR DISTRIBUTION OF PRODUCTS OR SERVICES NOT AUTHORIZED ........................................................ 16

28. SIGNAGE ........................................................................................................................................................ 16

29. INGRESS AND EGRESS .................................................................................................................................... 16

30. BOOKS OF ACCOUNT AND FINANCIAL REPORTING ......................................................................................... 16

31. INSURANCE .................................................................................................................................................... 18

32. INDEMNITY & CLAIMS ................................................................................................................................... 20

33. WAIVER OF DAMAGES ................................................................................................................................... 22

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34. RIGHTS UPON LOSS FROM CASUALTY ............................................................................................................ 22

35. TERMINATION ................................................................................................................................................ 23

36. VENDOR RESPONSIBILITY .............................................................................................................................. 25

37. FORCE MAJEURE ............................................................................................................................................ 26

38. COMPLIANCE WITH ALL LAWS, RULES AND REGULATIONS ............................................................................ 26

39. CHOICE OF LAW/DAMAGES ............................................................................................................................ 26

40. INTEGRATION CLAUSE ................................................................................................................................... 26

41. RIGHTS OF THIRD PARTIES ............................................................................................................................. 27

42. RIGHT OF RE-ENTRY ...................................................................................................................................... 27

43. WAIVER OF REDEMPTION ............................................................................................................................... 27

44. REMEDIES AND SUITS AGAINST LICENSEE ..................................................................................................... 27

45. SURRENDER OF LICENSE ................................................................................................................................ 28

46. NOTICES ......................................................................................................................................................... 29

47. SUB-LICENSING ............................................................................................................................................. 30

48. AGENCY ......................................................................................................................................................... 30

49. REQUIRED APPROVALS .................................................................................................................................. 30

SIGNATURE PAGES ....................................................................................................................................................... 31

ATTACHMENT A ........................................................................................................................................................... 33

ATTACHMENT B ........................................................................................................................................................... 34

ATTACHMENT C ........................................................................................................................................................... 35

ATTACHMENT D ........................................................................................................................................................... 37

ATTACHMENT E ........................................................................................................................................................... 38

ATTACHMENT F............................................................................................................................................................ 39

APPENDIX A ................................................................................................................................................................. 40

1

NEW YORK STATE

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

Niagara River Outdoor Recreation Activities

Niagara Falls, NY

License X123456

This License (License) made this __ day of __________, 201_ by and between the State of New York, acting by and through the Office of Parks, Recreation and Historic Preservation

(hereinafter State Parks), with offices at One Empire State Plaza, Albany, New York 12238, and TBD (hereinafter Licensee) a New York limited liability company, having an office at 40 Fountain Plaza, Buffalo, New York 14202:

WITNESSETH:

WHEREAS, pursuant to subdivision 2-a of Section 3.09 of the Parks, Recreation and Historic

Preservation Law, State Parks is authorized to enter into license for facilities operated in New

York State Parks; and

WHEREAS, State Parks formally requested proposals for the operation of outdoor recreation

activities along the Niagara River; and

WHEREAS, State Parks has reviewed and evaluated proposals and determined that Licensee

submitted the proposal that demonstrates the best relevant experience and expertise; that best

responds to the Request For Proposals; that offers the best value to the State; and that will best

serve the public interest; and

WHEREAS, Licensee has agreed to assume all obligations under the License.

NOW, THEREFORE, in consideration of the mutual covenants and conditions contained in this

License, State Parks and Licensee agree as follows:

1. License Documents

a) This License is comprised of the following documents, all of which are hereby incorporated by reference:

i. License X123456;

ii. Request For Proposal, including addenda;

iii. Licensee Proposal;

iv. Attachment A - Description of the Licensed Premises;

v. Attachment B Inventory of Equipment;

License X123456 Niagara River Outdoor Recreation

Sample General Conditions

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vi. Attachment C - Requirements for Capital Improvement Projects;

vii. Attachment D - Operation Plan;

viii. Attachment E - Maintenance Plan;

ix. Attachment F - Capital Improvement Schedule; and,

x. Appendix A - Required Clauses for All New York State Contracts.

b) In the event of any inconsistency in or conflict among the document elements of the License identified herein, such inconsistency or conflict shall be resolved by giving

precedence to the document elements in the order set forth below.

i. Appendix A - Required Clauses for All New York State Contracts;

ii. License X123456, including all schedules, exhibits, attachments and amendments;

iii. RFP and Addenda, including any modifications by State Parks and by official State Parks responses to questions; and

iv. Contractors Proposal in Response to the RFP (RFP Response).

2. Definition of Terms

Unless the context of any provision of this License specifically provides otherwise:

a) XYZ State Park shall mean the area located in the City of Niagara Falls, County of Niagara, State of New York, under the jurisdiction of State Parks.

b) Licensed Premises shall refer to that part of the XYZ State Park further described and delineated in Attachment A hereto, within which Licensee is authorized to

operate pursuant to this License.

c) Except as provided for below, the term gross receipts as used in this License shall mean the total amount received by, or accruing to, Licensee, its agents, employees

and contractors by reason of the privileges granted under this License, from any and all

sales for cash or credit, for consumption or use on or off the Licensed Premises of any

goods or services (including without limitation, catalog, Internet and telephone sales) as

may be specifically allowed hereunder and approved by State Parks, or otherwise.

i) Only the following may be excluded or deducted from the gross receipts for

the purpose of computing the reports and license fees payments due State Parks:

a. excise, sales or other taxes which are imposed upon the sale of goods or services and which are collected by the Licensee, including any



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taxes or other levies of a different character imposed on the Licensee

subsequent to the date of this License which are intended as substitutes for

or to complement any such taxes. This exclusion from gross receipts is not

intended to apply to any franchise fees or taxes, capital gains taxes, income

or similar taxes that are based upon profits of Licensee; and,

b. refunds, discounts, rebates or allowances received by Licensee from wholesalers or suppliers and refunds or other approved adjustments

paid or given to patrons; and,

c. tips, service charges or gratuities which are included in the account or bill of a patron and for which Licensee makes actual payment to service

staff, provided, however, that any portions of such charges retained by

Licensee shall be included in gross receipts, and provided that State Parks

approves all service charges as provided for in Section 17 of this License.

Wages, salaries and benefits are not deductible pursuant to this exclusion.

ii) No deductions from gross receipts shall be made for commissions or other considerations paid by Licensee to agents, travel agencies, group tour operators or

organizers, outside salesmen or promotional or booking organizations or services,

nor shall any exclusion from gross receipts be made for uncollectible patron

accounts, or theft. No deduction or exclusion from gross receipts shall be made for

commissions paid to credit card companies, to collection agencies or to other

outside parties engaged to assist in the collection of accounts receivable.

iii) Lodging and services, including spa services, provided as compensation to guests (comps) shall, for the purposes of calculating license fees payments due to State Parks, be recorded at full value. Lodging and services, including spa

services, provided at a discount to guests (discounts) shall be recorded at the discount value, not the full value.

3. Term

The term of the License shall commence upon approval by the Office of the State

Comptroller and conclude on date.

4. Grant of License

a) State Parks hereby grants to Licensee a license to use those areas located within the Park designated on the map and descriptions annexed hereto as Attachment A Licensed Premises for the purpose of operating an outdoor recreation program as further described in Licensees proposal.

b) State Parks and Licensee hereby acknowledge that the Licensed Premises constitute public, non-residential spaces within a State Park and that for all purposes



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hereunder State Parks grants only a right to use the Licensed Premises as is and without warranty, and subject to Licensee performing and undertaking on-going maintenance,

operating costs and obligations, and certain periodic renovations and capital

improvements to be reviewed and approved in advance by State Parks in accordance with

the requirements set forth herein.

5. Consideration

a) In consideration of the license herein granted, Licensee shall make payment to State Parks of all license fees and other amounts due and shall perform all obligations in

accordance with the financial and other requirements set forth in this License.

b) Immediately upon the sale of all goods and/or services authorized for sale to the public pursuant to this License, any license fees based on a percentage return to the State

payable to State Parks shall immediately vest in and become the property of State Parks.

Licensee shall be solely responsible for such license fees until paid and delivered to State

Parks as provided herein.

License Fees

1. Base license fees

c) The annual base license fees component shall be paid in quarterly installments on January 15, April 15, August 15 and October 15 of each year of this License. The base

license fees shall increase annually by the same percentage reflected in the C.P.I. All-Urban Index, U.S. City Average (CPI-U U.S. City Average) published by the U.S. Bureau of Labor Statistics. Such adjustments shall be based on the effective CPI of

January 1 of that year.

6. Licensees Proposal

Licensees proposal (the Proposal) submitted in response to State Parks Request for Proposals is annexed hereto and incorporated in this License by reference. The offers,

representations and promises contained in the Proposal shall be binding upon Licensee.

Notwithstanding the foregoing, any specific plans, projects and/or programs identified in

the Proposal, including, without limitation, capital improvement and repair and

refurbishment projects, shall be subject to the specific review and express approval of

State Parks as provided in this License. No such review or approval shall be implied,

construed or deemed given by State Parks by virtue of the award of this License or

otherwise, except in strict accordance with terms of this License.

7. Licensees Business Plan

Licensees Business Plan contained in its Proposal identifies and accounts for all anticipated revenue sources, business opportunities, and expenses sought to be captured



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and incurred by Licensee. Any new or additional revenue sources relating to the License

that may be identified during the term hereof shall be subject to approval by State Parks

and, if appropriate, good faith negotiation with Licensee of an equitable allocation of a

portion of such additional revenue to State Parks.

8. Inspection of Premises

a) Licensee has thoroughly examined and inspected the Licensed Premises and agrees to take the Licensed Premises as is in the condition they are in when vacated and turned over to Licensee by State Parks. Licensee acknowledges that it has not relied upon

any representation or statement of State Parks or of its officers, agents or employees as to

the suitability of the Licensed Premises for the operations permitted thereon by this

License. State Parks shall have no obligation hereunder for finishing work or preparation

of the Licensed Premises for Licensees use unless expressly agreed to in writing by State Parks. State Parks shall have no obligation to perform construction and finishing work

hereunder and Licensee agrees to perform at its sole cost and expense all construction and

installation work that it may require to finish off and decorate the Licensed Premises in a

manner suitable for the uses authorized by this License.

b) Without limiting any obligation of Licensee to commence operations hereunder at the time and in the manner stated elsewhere in this License, Licensee agrees that no

portion of the Licensed Premises will be used initially or any time during the term hereof,

if in a condition unsafe or improper for the conduct of Licensees operations hereunder so that there is possibility of injury or damage to life or property.

9. Performance Bond License Fee

a) Coincident with its signature of this License, Licensee shall provide a letter of commitment from a surety company, or other provider satisfactory to State Parks, assuring

that such company will produce a performance bond for license fees that will take effect

upon the approval of this License by the Office of the State Comptroller. The performance

bond, letter of credit, or cash or equivalent deposit shall be in the principal amount of

$650,000. At the sole discretion of State Parks the amount of the performance security may

be adjusted to an amount not to exceed the license fees plus payment to the State Parks

Investment Account of the previous year. Such bond shall name the Office of Parks,

Recreation and Historic Preservation as the sole beneficiary and shall guarantee the

faithful performance by Licensee of all the covenants, terms, and conditions of this

License inclusive of, but not limited to, the payment to State Parks of all required fees

and charges, and all other financial obligations. Failure to provide such a bond shall be

considered a material breach of this contract.

b) The performance bond or letter of credit required hereunder shall be kept in full force and effect by Licensee through the entire term of this License. The surety or bank

issuing the performance bond or letter of credit shall be required to give State Parks

notice in writing not less than thirty (30) days prior to the expiration date thereof, and/or



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of the bank or suretys intention not to renew said bond or letter of credit. In any event, the performance bond or letter of credit shall not be terminated without the advance

written approval of State Parks.

c) Annually renewable bonds or letter of credits are acceptable, provided, however, that failure of Licensee to renew such securities prior to each annual expiration date shall

be considered a material breach of this contract.

10. Capital Investment

a) Licensee shall invest $XXX in capital improvements and upgrades in the Licensed Premises over the term of the License in accordance with the proposed 5-year phased-in

schedule set forth in Licensees proposal (hereinafter the Capital Obligation) subject to State Parks approval as set forth in Paragraph 11 hereof.

b) Coincident with its signature of this License, Licensee shall provide State Parks with a letter of commitment from a surety company satisfactory to State Parks, assuring

that such company will produce a capital performance bond or letter of credit (or series

thereof) that will secure each and every phase of work comprising Licensees Capital Obligation. Licensees provision and delivery to State Parks of a performance bond for each and every phase of work undertaken in accordance with Licensees Capital Obligation is a material obligation of Licensee and a condition precedent to the

commencement of such work. Every performance bond provided hereunder shall name

State Parks as the sole beneficiary and shall guarantee the full value and faithful

performance of all capital work approved by State Parks for each such phase undertaken

by Licensee.

c) In addition to the Capital Obligation as defined in Paragraph 10(a), above, Licensee shall be responsible for any and all other capital improvements necessary during the term at

the Licensed Premises, the aggregate costs of which are within Licensees overall investment commitment of $19,731,640. Licensee shall adhere to the capital improvement

schedule in Licensees proposal as approved by State Parks, unless other necessary capital improvements arise which are not identified in Licensees proposal and which require adjustment of said schedule. All such work, including phasing and schedules and

any adjustments thereto must be approved in writing by State Parks. Any capital

improvements made by the Licensee as a result of casualty loss for which it is reimbursed

by or which is funded through insurance proceeds shall not be deemed part of the

Licensees capital commitment.

11. Construction by Licensee

a) Licensee shall not erect any structures, make any substantial modifications, alterations, additions, or improvements or do any substantial construction work on, to or

affecting the Licensed Premises without the prior written consent of State Parks. In the

event any construction, improvement, alteration, modification, or addition is made or



7

done with or without such consent and unless the consent of State Parks shall expressly

provide otherwise, the same shall immediately become the property of State Parks and

Licensee shall have no right to change or remove the same either during the term or at the

expiration thereof. Notwithstanding the foregoing, immediately upon notice from State

Parks given at any time during the term of this License, Licensee shall remove or change

any improvements made or done by it without State Parks consent.

b) Licensee shall require all of its construction consultants and contractors to indemnify and insure the Indemnitees (as defined in Paragraph 32) to the same extent that

such consultants and contractors indemnify and insure Licensee. All consulting and

construction contracts entered into by Licensee shall be in accordance with the terms of

this License and nothing set forth in any such contract shall impair the rights of State

Parks pursuant to this License, or shall create or be deemed to create a contractual or

third-party beneficiary relationship between Licensees contractor or consultant and State Parks.

d) Any capital project to be undertaken by Licensee shall be in accordance with the provisions of Attachment C - Requirements for Capital Improvement Projects annexed hereto. Any proposed modification that substantially alters the buildings interior, exterior or surrounding landscape must be specifically reviewed and approved in writing by State

Parks.

e) Compliance with the State Environmental Quality Review Act and the State Historic Preservation Act are express conditions of this License. No material alteration of

the structure or significant departure from the traditional and current use of the Licensed

Premises shall be permitted except after review in compliance with the State Environmental

Quality Review Act and the State Historic Preservation Act.

f) Title to all improvements performed by Licensee shall vest in the State of New York only upon final acceptance of the work by State Parks.

12. Operation of the Licensed Premises

a) Licensee warrants that all merchandise and other goods and services and items sold or kept for sale pursuant to this License shall be of the highest quality and standards;

and must conform in all respects to federal, state and municipal laws, ordinances, rules

and regulations. In the event that in State Parks sole reasonable judgment any goods or services offered by Licensee are inconsistent with the image, policies or reputation of State

Parks or the State of New York, or are otherwise deemed unsuitable, State Parks may

require Licensee to cease selling such goods or services immediately.

b) Licensee shall maintain the Licensed Premises, and any equipment or ancillary facilities included under this License, in an attractive, safe, operable, sanitary and inviting

condition at all times, including all buildings or portions thereof used for the handling,

preparation, storage and service of food, disposal of waste and refuse, public lobbies and



8

lounges, restrooms, entrances and exits. Licensee shall keep the sidewalks and grounds of

the Licensed Premises in a safe, clean, neat and attractive condition.

c) Licensees Operation Plan, which was provided as part of Licensees proposal, is attached hereto as Attachment D. Substantial compliance with this schedule is a material

requirement of this lease. The repeated or persistent failure of Licensee to maintain the

Licensed Premises in substantial conformance to the maintenance plan detailed in

Attachment D shall constitute a material breach of this License and may, at the option of

State Parks, result in termination hereof.

d) The Licensed Premises shall be restricted to the areas specifically depicted in Attachment A annexed hereto, and Licensee shall have no rights beyond the delineated

areas, except as may be provided specifically herein or hereafter expressly granted by State

Parks in writing. Licensee shall not advertise or offer for sale, hire or use any park

amenities, areas or activities outside of the Licensed Premises in catering packages, or

Special Events, including without limitation weddings and parties, except with the

approval of State Parks. Upon the request of State Parks, Licensees catering contracts shall include and incorporate by reference reasonable rules that may be promulgated by

State Parks to protect the health, safety or welfare of the public or to preserve the

condition of the Licensed Premises.

e) Any proposed activity or use affecting the Park and any of its facilities other than uses confined to the Licensed Premises shall be subject to the specific written approval of

State Parks, and/or State Parks grant of a Special Use Permit on such terms and conditions as may be appropriate. All events outside Licensees ordinary course of business or that impact, or potentially impact, the Park or public access, use and enjoyment

of the Park beyond the footprint of the Licensed Premises shall be deemed Special Events requiring the advance approval of State Parks hereunder. Within forty-eight (48) hours prior to booking, Licensee shall submit to State Parks for its approval all plans for

Special Events and Promotions at the Licensed Premises.

f) State Parks reserves the right to use the Licensed Premises without license fees for official events and purposes, subject to written notice to Licensee and prior or

conflicting bookings by Licensee.

g) Licensee shall not commit any nuisance on the Licensed Premises, or do or permit to be done anything which may result in the creation or commission of a nuisance on the

Licensed Premises, and Licensee shall not cause or permit to be caused or produced upon

the Licensed Premises, to permeate the same or to emanate therefrom, any unusual,

noxious or objectionable smokes, gases, vapors odors or objectionable noises.

h) Licensee shall not use or connect any equipment or engage in any activity or operation in the Licensed Premises which will cause or tend to cause an overloading of

the capacity of any existing or future utility, mechanical, electrical, communication or

other systems, or portion thereof, serving the Licensed Premises, nor shall Licensee do or



9

permit to be done anything which may interfere with the effectiveness or accessibility of

existing and future utility, mechanical, electrical communication or other systems or

portions thereof on the Licensed Premises or elsewhere at the Park.

i) Licensee shall not overload any floor, roadway, passageway, pavement or other surface or any wall, partition, column or other supporting member, or any elevator or

other conveyance, in the Licensed Premises or at the Park and without limiting any other

provision of this License, Licensee shall repair, replace or rebuild any such damage

caused by overloading.

13. Food Products and Other Commodities from New York Vendors

a) Licensee shall include a variety of healthy food choices on the menus at both the beach concession and the camp store. Healthy foods will be fresh, low in sugars and fats,

and contain no artificial preservatives or artificial additives. Fried foods should be kept to

a minimum. Locally sourced foods and food products are to be incorporated to the

greatest extent possible. Menus must include healthy beverage options other than soft

drinks, including water and juices.

b) Licensee is strongly encouraged and expected to utilize New York state businesses, and suppliers sourcing products from New York state businesses, for

products, supplies and materials purchased pursuant to this license. On or before

September 30 of each year of this License, Licensee will report to State Parks in a format

provided by the agency a list of such providers, the type goods and products purchased,

and the approximate dollar value of purchases from each provider.

14. Advertising

a) Licensee agrees to spend not less than an average of $XXX on media advertising. The reasonable advertising expenditures to be included in this category include brochure

printing and distribution, newspaper and magazine advertising, radio and television

advertising and the costs of materials for direct mail campaigns, advertising and

marketing agency fees, on-line expenses and direct costs of database maintenance.

Artwork preparation and advertising agency fees are allowable expenses under this

Section. Upon request, Licensee shall submit to State Parks, at the end of each calendar

year, proof of the guaranteed media advertising expenditure in the form of paid invoices

and copies of cancelled checks or other demonstrable evidence of these expenses.

b) Licensee agrees that all brochures, media advertisements and similar copies be distributed either on or off the Licensed Premises shall specifically identify and promote

the XXX Park and be subject to the prior approval of State Parks, which shall not be

unreasonably withheld. Promotional materials shall include professionally prepared

audio-visual material promoting the Licensed Premises and the State Park resources and

programs, subject to State Parks approval.



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c) Licensee shall use commercially reasonable efforts to promote the services authorized by this License. To the extent not already described in its proposal and

operational plan, and at the request of State Parks, Licensee shall present for State Parks review and approval a marketing plan describing in detail all media and promotional

tools to be used in promoting the concession and Licensed Premises.

d) Licensee shall participate in and remain a member in good standing in the Niagara County Chamber of Commerce and the Niagara Falls Convention and Tourism Bureau,

and such other similar organizations as may from time to time be identified by State

Parks.

e) State Parks agrees that it will cooperate with Licensee in promoting the Licensees program and activities in written materials printed about the XXX Park, and on the State Parks website, and will use its best efforts to assist the Licensee in efforts to

maximize sales within the Licensed Premises.

15. Security

Licensee shall be responsible for providing all necessary security measures to protect the

patrons, guests, employees and all other individuals from any disturbance or other

occurrence that may be attributable to the operations conducted through this License. This

security responsibility is not limited to the Licensed Premises but includes all individuals

and areas of the Park affected by Licensees operations.

16. Maintenance and Repairs

a) The Licensed Premises in its entirety shall be maintained and kept in good and acceptable repair (as may be reasonably determined by State Parks) by Licensee at its

sole expense, and shall be surrendered by Licensee at the expiration or termination of this

agreement to State Parks in as good condition as when received, reasonable wear and tear

and loss from casualty excepted.

b) Licensees maintenance plan, which was provided as part of Licensees proposal, is attached hereto as Attachment E. Substantial compliance with this schedule is a

material requirement of this lease. The repeated or persistent failure of Licensee to

operate the Licensed Premises in reasonable conformance to the Operation Plan detailed

in Attachment E shall constitute a material breach of this License and may, at the option

of State Parks, result in termination thereof.

c) Licensee agrees to maintain proper maintenance and repair records and to make these records available to State Parks upon request.

d) At any time during the term of this License, State Parks shall have the right to inspect the Licensed Premises with regard to the level of maintenance being performed

by Licensee, upon giving Licensee twenty-four (24) hours notice of such inspection. If, as



11

a result of such inspection, it is the written determination of State Parks that any

deficiencies exist in the condition of those areas within Licensees area of responsibility, State Parks shall so inform Licensee in writing. Licensee shall correct such deficiencies

within ten (10) working days of such notice, at which time a follow-up inspection shall be

conducted. The repeated or persistent failure of Licensee to properly maintain the

Licensed Premises shall constitute a material breach of this License and may, at the

option of State Parks, result in termination thereof.

e) State Parks by its duly authorized officers, employees, agents, representatives and contractors shall have the right at all reasonable times during business hours and upon

reasonable oral notice to Licensees manager or his designee to enter upon the Licensed Premises for the purpose of inspecting the same, for observing the performance by

Licensee of its obligations under this License, and for the doing of any official act or

thing which State Parks may be obligated or have the right to do under this License or in

accordance with law. In case of emergency or exigent circumstances threatening the

health, safety or welfare of the public, or the physical integrity of the Licensed Premises,

State Parks reserves an unrestricted right of entry to the Licensed Premises at all times.

f) Without limiting the generality of the foregoing, State Parks by its officers, employees, representatives and contractors, shall have the right, for its own benefit, for

the benefit of the public, to maintain initially existing and future utility, mechanical,

electrical, communication and other systems or portions thereof as may be on or adjacent

to the Licensed Premises, and to enter upon the Licensed Premises at all reasonable times

to make such repairs, alterations and replacements as may, in the opinion of State Parks,

be deemed necessary or advisable and, from time to time, to construct or install over, in,

under or through the Licensed Premises new lines, pipes, mains, wires, conduits,

equipment and other such; and to use the Licensed Premises for access to such facilities

not otherwise conveniently accessible; and to take all material into and upon the Licensed

Premises that may be required for such repairs, alterations and replacements; provided,

however, that such entry, repair, alteration, replacement, construction or access shall not

unreasonably interfere with the use of the Licensed Premises by Licensee or adversely

affect the security of property owned by, or on loan to Licensee.

g) Licensee shall consider replacement of equipment or a portion of the mechanical, electrical or structural systems serving the Licensed Premises whenever the cost of repair

exceeds fifty percent (50%) of the replacement cost.

h) Licensee shall repair, replace, rebuild and paint all or any part of the Licensed Premises or of the Park which may be damaged or destroyed by the acts or omissions of

Licensee, its officers, members, employees, agents, representatives, contractors,

customers, guests, invitees or other persons who are doing business with Licensee or who

are present at the Licensed Premises or the Park with the consent of Licensee. Licensee

shall repair all damage to the Licensed Premises resulting from vandalism or other

destructive acts. Such repair responsibilities shall include the plate glass associated with

the Licensed Premises.



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i) Licensee shall maintain all equipment and furnishings included as part of the Licensed Premises during the term of this License, and shall return same to State Parks,

including replacements and additions, at the end of the term in as reasonably good

condition as when received, ordinary wear and tear excepted.

17. Pricing

Licensees prices for products and services shall be generally comparable to prevailing rates at similar establishments in the region. State Parks reserves the right to review

Licensees pricing structure, including service charges, and, if deemed necessary in its reasonable estimate given the unique location and amenities of the Licensed Premises,

require reasonable adjustments. The foregoing shall not apply to comps, discounts or similar bundled specials or negotiated prices for events, provided that Licensees prices shall be generally comparable to prevailing rates at similar recreation venues in the

region, or are consistent with Licensees prices described in its Operation Plan and/or marketing plan approved by State Parks.

18. Qualified Staff

a) Licensee shall assign a full-time General Manager, satisfactory to State Parks, who shall devote his or her personal attention to and be responsible for the management of the

Licensed Premises. Licensees General Manager shall have sufficient authority to implement any request that State Parks may reasonably make during the term hereof. Prior

to the engagement of any person as General Manager, Licensee shall provide State Parks

with a written rsum of background and qualifications. State Parks shall have the right to

disqualify any candidate it deems, in its sole reasonable judgment, to be unqualified for

the position.

b) Licensee shall be responsible for the recruitment and screening of appropriate personnel and verification of credentials, references and suitability for working with the

public.

i. Licensee agrees not to hire or retain any personnel who refuse to:

- provide information on criminal conviction records; or

- submit to drug testing.

ii. Licensee agrees not to hire or retain any personnel:

- who have not completely and truthfully reported information concerning their criminal convictions; or

- who fail their drug testing; or

- who are listed on the NYS Statewide Sexual Offenders Registry.



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c) Licensee shall provide to State Parks an organization chart of its management and supervisory staff at the Licensed Premises, including the names of the incumbents. As

personnel change, the organization chart shall be updated and a revised copy provided to

State Parks.

d) All employees and contractors of Licensee must be able to communicate effectively with State Parks officials, the public, vendors, public safety personnel and all others with whom they must interact during the course of their employment.

e) Licensee shall provide its employees with proper identification credentials and distinctive and clean uniforms that foster a neat and appropriate public image. The style

of uniforms shall be subject to advance approval by State Parks.

f) All employees of Licensee and Licensees contractors and concessionaires engaged in the preparation or handling of food shall be trained and shall be required to

meet all State health regulations regarding food handling, preparation, and sanitation.

Licensee shall require employees to be clean, courteous, helpful, and neat in appearance

at all times. Management employees shall be generally knowledgeable about the Park and

its operations.

g) To the extent it does not conflict with applicable labor laws, rules and regulations, or established collective bargaining agreements, State Parks reserves the right to require

Licensee to discipline, retrain or replace any employee whose actions or appearance are

inconsistent with the standards of State Parks.

19. Housekeeping and Sanitation

a) Licensee shall at all times keep the Licensed Premises and any ancillary or common area used by Licensee in a clean and sanitary condition. The general cleanliness of the

facility must be maintained at all times. State Parks reserves the right to inspect the facility

at any time to ensure that the facility meets the highest standards in patron service

including staffing, efficiency of service, health inspections and overall cleanliness.

b) Licensee shall be responsible for keeping all of the Licensed Premises free from ants, flies, roaches, rodents, and all other insects or vermin. Licensee shall bear all costs

incurred as a result of keeping the Licensed Premises free from pests and vermin.

c) All State and local health and sanitary codes, standards and regulations, including sanitary standards established and issued by State Parks, shall be adhered to at all times.

Violation of such codes, standards or regulations will result in written warnings to the

Licensee and shall be corrected by Licensee within two (2) working days. Nothing

contained in this section shall limit any other rights of State Parks pursuant to this License.

Failure of the Licensee to correct the health or sanitary code violations shall be deemed a

material breach of this License. The closing of the Licensed Premises, or any portion

thereof, by a State or County health agency may be deemed a material breach of this



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License. Immediately upon receipt by the Licensees on-site management, Licensee shall forward a copy of any notice, inspection report, and/or citation received from any State or

County health agency, to State Parks Regional Headquarters and Albany Concession Bureau.

20. Utilities, Trash and Debris

a) Licensee shall be solely responsible for all utility costs including, without limitation, electricity, fuel oil, natural gas, telephone services, cable television, internet

services, domestic water and sewage disposal used in connection with this License.

b) Failure or neglect by Licensee to pay for any utility services which results in termination of utility service to the Licensed Premises may be deemed a material breach of

this License.

c) In the event of fluctuation or interruption of water supply, electricity, or other utility services to the Licensed Premises, Licensee shall be solely responsible for the cost and

provision of its own sources of temporary power as may be necessary.

d) The cost of storage, removal and disposal of all refuse and garbage generated from Licensees performance hereunder is the sole responsibility of Licensee. Disposal of all refuse left by patrons on the Licensed Premises is the responsibility of Licensee.

21. Use of Biodegradable/Recyclable Products

Licensee shall use recyclable materials in the preparation of food. All such materials will

be rinsed, collected and brought to a recycling center for disposal by the Licensee. The

Licensee shall provide appropriate receptacles to allow the public the opportunity to

separate recyclable material from biodegradable waste resulting from sales made at the

Licensed Premises. No Styrofoam products will be used to store, prepare or serve any food

or food products or other items produced or sold pursuan.t to this license.

22. Hazardous Materials

a) Licensee shall not use or permit the storage at the Licensed Premises of any

hazardous substances or materials, including illuminating oils, oil lamps, turpentine,

benzene, naphtha or other similar substances or explosives of any kind, or any substance or

thing prohibited by the standard policies of fire insurance companies in the State of New

York.

b) Licensee shall properly handle, store, and use all fuel, including propane tanks in

a manner that meets all applicable building and fire codes, rules and regulations.



15

c) No fireworks, fireworks displays, or performances involving pyrotechnics of any

kind are authorized or permitted pursuant to this License without the expressed prior

written approval of State Parks.

23. Official Statewide or Regional Product Sales

a) State Parks reserves the right to require Licensee to purchase for resale to patrons at the Licensed Premises, only those products as may be defined in any future statewide

or regional official product sales contract that may be subsequently issued by State Parks.

b) State Parks shall provide Licensee with a copy of any future statewide or regional official beverage/pouring rights or other official product contract that may be

subsequently issued by State Parks.

24. Sale of Alcoholic Beverages and Tobacco Products

a) Licensee is authorized to offer the lawful and licensed sale and service of alcoholic beverages, in accordance with the laws, rules and regulations of the New York State Liquor

Authority. Prior to such sales, Licensee must obtain and display the appropriate license or

permit for the Licensed Premises, and provide evidence that appropriate dram shop

insurance as specified by State Parks has been obtained.

b) Licensee may not sell tobacco products without the express written consent of State Parks.

25. Deliveries

Deliveries of supplies and equipment to Licensed Premises by commercial vehicle shall be

scheduled and coordinated so as to not conflict with Park operations.

26. Sponsorships

a) Sponsorship opportunities may be allowed subject to the prior written approval of State Parks as to form, content and manner of presentation. Sponsorship by companies,

interests or organizations that are directly identified with the sale or use of alcoholic

beverages, tobacco products, or casino gambling are strictly prohibited. Sponsorship

opportunities include, but are not limited to, program inserts, product sampling, and

advertising displays at the Licensed Premises.

b) Sponsorship of the Licensed Premises, or its programs and services authorized by this License is subject to the approval of State Parks, and may not be procured by Licensee

without the expressed written approval of State Parks.

c) Licensee is not authorized to sell, lease, license, market or otherwise offer so-called naming rights to the Licensed Premises without the expressed written permission of State



16

Parks. Naming rights as used herein shall include, without limitation, recognition of contributors and donors of money, property, services or anything of value to Licensee.

27. Sale or Distribution of Products or Services Not Authorized

Nothing in this License authorizes Licensee to sell or distribute any items, or to promote or

provide any commercial services to the public at the Licensed Premises other than those

specifically enumerated herein, or which State Parks specifically approves in writing.

Licensee shall not commercially exploit the Licensed Premises for any purpose other than

as may be authorized in this License or as may be otherwise specifically approved by State

Parks in writing. State Parks reserves for its sole benefit all other rights to the Licensed

Premises, including but not limited to, the right to retain all revenues derived from other

sources not specifically granted to Licensee.

28. Signage

State Parks reserves the exclusive right to erect, remove or change signs at the exterior of

the Licensed Premises as it deems necessary and desirable for the convenience of the

public. No exterior signs shall be erected on or removed or changed by Licensee without

the prior written approval of State Parks.

29. Ingress and Egress

a) Licensee for itself, its officers, employees and such business invitees as are at the Licensed Premises shall have the right of ingress and egress between the Licensed

Premises and the public streets and park roads. Such right shall be exercised by means of

such public areas and pedestrian or vehicular ways, and by means of such other facilities

for movement of persons or property, to be used subject to all the provisions of this

License and in common with others having rights of passage and movement within the

Park as may from time to time be designated by State Parks for the use of the public. The

use of any such facility, way or other area shall be subject to the rules and regulations of

State Parks and the Park which are now in effect or which may hereafter be promulgated

for the safe and efficient operation of the Park.

b) State Parks may, at any time, temporarily or permanently close, move change or limit the use of, or consent to or request the closing, moving, changing or limitation of

the use of, any road, facility, way or any other area at or near the Licensed Premises

presently or hereafter used as such, so long as a reasonably comparable means of ingress

and egress remains or is made available to Licensee. Licensee shall not do or permit

anything to be done which will interfere with the free access and passage of others to

space adjacent to the Licensed Premises or in any areas, streets, ways, facilities and walks

near the Licensed Premises, except with the express written permission of State Parks.

30. Books of Account and Financial Reporting



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a) Licensee shall keep books and records of account in accordance with generally accepted accounting principles and procedures. Licensee shall permit State Parks, the

Office of the State Comptroller, and/or their authorized representatives and consultants to

inspect and audit appropriate books and records at any reasonable time, after giving

Licensee five (5) business days notice of the date and time of such inspection and audit.

Such right of inspection and audit shall exist during the term of this License and for a

period of six (6) years after its expiration or termination. Notwithstanding the

requirement for advance notice with respect to access to Licensees books for the purposes of audit, State Parks reserves the right to conduct periodic spot inspections of the Licensed Premises at any time during business hours for the purpose of conducting

cash counts, health code and regulatory compliance inspections, maintenance inspections,

and quality assurance inspections.

b) All sales of any nature within the Licensed Premises shall be immediately and properly recorded using cash registers or point of sale systems, or such other systems as

may be authorized by State Parks, with tamper proof totalizers within each cash register

machine or point of sale system. All such systems shall be provided at the sole cost of

Licensee, and approved as to design and specification by State Parks. No sales of any kind

shall be made without immediate recording of sales on said equipment.

c) Licensee shall maintain an updated inventory of point of sale units, with a copy provided to State Parks. Each unit shall have a unique inventory number, readily accessible

by State Parks staff for the purposes of verifying such inventory.

d) If a point of sale system is used by Licensee, consecutive daily readings shall be taken from each unit in each sales and tax category, and posted to a daily sales report for

each point of sale location. The daily sales report shall be provided to the Park Director

weekly. No reset of cumulative point of sale data by Licensee shall be permitted. If a

point of sale unit must be repaired, or otherwise removed from the premises, the readings

shall be recorded and verified by State Parks personnel both before the equipment leaves and when it re-enters the Licensed Premises. State Parks reserves the right to audit

register or point of sale readings at any time.

e) Licensee shall retain original records of all gross receipts and any other related records and supporting data required for audit of Licensees business operation (hereinafter, collectively, the Records). The Records must be kept for the balance of the calendar year in which they were made and for six (6) additional years thereafter.

Such records and supporting data shall be maintained for ready access at the Licensed

Premises and shall not be removed from the Licensed Premises without the prior written

consent of State Parks. All such records shall be stored in a watertight and/or weather-

tight manner.

f) For each year of this lease, and not later than 120 calendar days after the close of its fiscal year, Licensee shall provide State Parks with audited financial statements as

prepared by a Certified Public Accountant (CPA), audited in accordance with Generally



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Accepted Audit Principles, and Licensees federal and state income tax returns covering the operation of the Licensed Premises for the preceding fiscal year. A full financial

statement is required, of which only the income component, including all subsidiaries,

must be audited and certified by a CPA. The audited financial statements must be in a

format approved by State Parks and, at a minimum, include:

i. A supplemental schedule of gross receipts, with identification of each type of receipt (i.e. lodging, catering, restaurant, spa, etc.) in excess of 5% of total

receipts.

ii. Separate line items in the statement of operations for the following expense categories:

o License fees paid to State Parks o Advertising o Amounts contributed to the State Parks Investment account

iii. A supplemental schedule of capital improvements made pursuant to the License.

31. Insurance

a) Licensee shall procure at its sole cost and expense insurance with limits not less than those described below and as required by the terms of this contract, or as required by

law, whichever is greater and shall provide coverage to Licensee and State Parks for

claims of damage to property and personal injuries, including death, which may arise

from the conduct of Licensee and/or the performance of the services authorized by this

License. Limits may be provided through a combination of primary and umbrella/excess

policies.

b) Upon annual renewal of insurance coverage, an insurance certificate evidencing such insurance coverage must be submitted to State Parks. Insurance shall be provided in

the following minimum amounts:

i. Commercial General Liability Insurance with a limit of not less than five million dollars ($5,000,000) per occurrence. Such coverage shall be written

on the ISO CG 00 01 or substitute form providing equivalent coverages and shall

cover liability arising from premises operations, products-completed operations

and personal and advertising injury. If such insurance contains an aggregate limit,

it shall apply separately on a per-location basis; and

ii. Commercial Property covering the Licensed Premises and ancillary structures, fixtures and equipment insuring the same for replacement cost,

excluding actual reproduction costs for ornate building characteristics attributable

to the historic design and designation, with all risk coverage, in which State Parks

is named as loss payee. Such coverage shall be written on the ISO Special Causes of Loss Form or substitute form providing equivalent coverages; and,



19

iii. Comprehensive Business Automobile Liability Insurance with a limit of not less than one million dollars ($1,000,000) per accident. Such insurance

shall cover liability arising out of any automobiles including owned, leased, hired

and non-owned automobiles; and,

iv. Licensee shall require that all independent contractors shall have insurance policies providing commercial general liability with a limit of not less

than one million dollars ($1,000,000), workers compensation (if required) and

comprehensive business automobile liability insurance to the extent set forth in

the section. Licensee shall provide State Parks with a certificate from such

independent contractor evidencing such coverage, and naming State Parks as

additional insureds as provided in paragraph 36(d) below.

c) In accordance with Sections 57 and 220(8) of the Workers Compensation Law, State Parks requires annual proof of both Workers Compensation Insurance and Disability Insurance. The following are the only acceptable means of proof (Please note

that ACORD forms are not acceptable proof of coverage):

i. Disability Benefits:

1) CE-200: Certificate of Attestation of Exemption from NYS

Workers Compensation and/or Disability Benefits Insurance Coverage; or

2) DB-120.1: Certificate of Disability Benefits Insurance; or

3) DB-155: Certificate of Disability Benefits Self-Insurance.

ii. Workers Compensation:

1) CE-200: Certificate of Attestation of Exemption from NYS

Workers Compensation and/or Disability Benefits Insurance Coverage; or

2) C-105.2(9-07): Certificate of Workers Compensation Insurance; note: the State Insurance Fund provides its own version of this form, the

U- 26.3; or

3) SI-12: Certificate of Workers Compensation Self-Insurance.

d) Insurance coverage shall be provided only by an insurance carrier rated A-, Class VII or better throughout the term of this License. Such carrier shall be duly licensed in the

State of New York.

e) Insurance coverage shall be provided only by an insurance carrier rated A- Class VII or better throughout the term of this License.

f) All insurance policies and certificates shall name as additional insureds Consistent with the requirements of Concession License X123456 the People of the State



20

of New York are named as additional insureds. Designating State Parks as a certificate holder shall not constitute compliance with this section.

g) All insurance coverage shall be written such that State Parks is afforded at least thirty (30) days prior notice of cancellation or modification of coverage.

h) Licensee shall notify State Parks of any claims involving serious bodily injury, death or substantial property damage, arising on or within the Licensed Premises. Such

notice shall be provided in writing as soon as practicable, however in any event within

five days of Licensees receipt of notice of the accident or claim.

i) Coverage required in this section and any insurance retention or deductible may be adjusted by State Parks if, in its sole reasonable judgment, levels of risk associated

with Licensees operations require modification of coverage that is commercially available at commercially reasonable rates and carried by other operators of similar

businesses.

j) Failure of the Licensee to obtain and maintain appropriate insurance as specified and without gap may be deemed a material breach of this contract. If Licensee is unable to

maintain insurance coverage at the required levels and State Parks can obtain acceptable

coverage, State Parks may elect to purchase such policies and Licensee shall immediately

reimburse State Parks for all costs incurred.

32. Indemnity & Claims

a) Licensee assumes all risks in the performance of all activities authorized by this

License and agrees to defend, indemnify and hold harmless the People of the State of New

York (hereinafter, collectively the Indemnitees) from and against any and all claims, suits, losses, damage or injury to persons or property of whatsoever kind and nature,

whether direct or indirect, caused or contributed to by Licensee and Licensees contractors, vendors, materialmen, employees, agents, invitees and guests, and/or arising out of

Licensees conduct and/or Licensees performance pursuant to this License, provided however that Licensees indemnity shall not extend to any claims, liabilities, losses, damages, expenses, accidents or occurrences arising out of, relating to, or in connection

with:

i. the negligence of any Indemnitee; or

ii. the Indemnitees ordinary upkeep and maintenance of the Park and its grounds and facilities outside of the Licensed Premises. Licensee shall

defend at its sole cost and expense any action commenced for the purpose

of asserting any claim of whatsoever character arising out of this License.

Licensees responsibility under this section shall not be limited to the required or available insurance coverage.



21

b) For all purposes hereunder, State Parks shall not be liable for any injury, loss or

damage to Licensee, its agents, servants, contractors, vendors, invitees and guests, or to any

person happening on, in or about the Licensed Premises or its appurtenances, nor for any

injury or damage to the Licensed Premises or to any property belonging to Licensee or to

any other person, that may be caused by fire, theft, breakage, vandalism or any other use or

misuse or abuse of any portion of the Licensed Premises, including but not limited to any

common areas, sidewalks, roads, or water in or adjacent to the Licensed Premises, or that

may arise from any other cause whatsoever, unless, and only to the extent of the proportion

of which any such injury, loss or damage is determined to be caused by the negligence of

State Parks.

c) State Parks shall not be liable to Licensee, its agents, servants, contractors, vendors, invitees and guests, or any other person, for any failure of water supply, gas supply or

electricity, nor for any injury or damage to any property of Licensee or any other person or

to the Licensed Premises, caused by or resulting from spill or release of gasoline, oil,

steam, gas, or electricity, or caused by leakage of any substance from pipes, appliances,

sewers or plumbing works, or caused by hurricane, flood, tornado, wind or similar storm or

disturbance, or caused by water, rain or snow that may leak or flow from the street, sewers

or subsurface areas, or from any part of the Licensed Premises or any body of water within

or adjacent to the Licensed Premises, or caused by any public or quasi-public work, unless,

and only to the extent of the proportion by which any such injury, loss or damage is

determined to be caused by the negligence of State Parks.

d) Licensee shall not create or cause to be created any lien, encumbrance or charge upon the Licensed Premises, the Park, or any part thereof. If any mechanics, laborers or

similar statutory or common law lien (including tax liens, provided that the underlying tax

is an obligation of Licensee by law or by a provision of this License) caused or created by

Licensee is filed against the Licensed Premises, or if any public improvement lien created

or caused to be created by Licensee is filed against any assets of, or funds appropriated by

State Parks, then Licensee shall, within forty-five (45) days after receipt of notice of the

lien, cause it to be vacated or discharged of record by payment, deposit, bond, court order,

or otherwise. However, Licensee shall not be required to discharge any such lien if

Licensee shall have:

i. furnished State Parks with, at Licensees option, a cash deposit, bond, letter of credit (from an institutional lender in a form satisfactory to State Parks), or other

security reasonably satisfactory to State Parks in an amount sufficient to discharge

the lien and all applicable interest, penalties and/or costs; and

ii. brought an appropriate legal proceeding to discharge the lien and is prosecuting such proceeding with diligence and continuity; except that if despite

Licensees efforts to discharge the lien State Parks reasonably believes the lien is about to be foreclosed and so notifies Licensee, Licensee shall immediately cause

such lien to be discharged of record or State Parks may use the security furnished

by Licensee in order to discharge the lien.



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33. Waiver of Damages

Licensee waives any and all claims for compensation from the State of New York and State

Parks for any and all loss or damage sustained by reason of any defect, deficiency or

impairment of utility service including but not limited to light, electrical current, gas or

water supply which may occur from time to time for any cause; and for any loss or damage

sustained by Licensee resulting from weather, fire, water, tornado, civil commotion, riots,

earth movement or other similar cause beyond the control of State Parks.

34. Rights Upon Loss from Casualty

a) If a loss or damage from casualty is suffered, Licensee shall give notice of the loss to State Parks. If the damage to the Licensed Premises is such that the Licensees performance hereunder is not substantially interrupted or impeded, then Licensee shall

repair and restore the Licensed Premises in accordance with this sub-paragraph. Licensee

shall promptly repair or replace the Licensed Premises, provided the repairs or

replacement can be made with reasonable efforts under the applicable laws and

regulations. Any such damage or destruction shall neither annul nor void this License,

and Licensees obligations under the License shall continue while the Licensed Premises are repaired or replaced, subject to an equitable proportionate abatement of the license

fees as provided for in Section 34(e), below.

b) If the loss from casualty is such that the Licensed Premises is totally or partially destroyed to the extent that Licensees performance hereunder is substantially interrupted or impeded, then Licensee shall repair and restore the Licensed Premises in accordance

with this sub-paragraph. During years one through five, the Licensee shall restore the

Licensed Premises to the same general appearance and in as good a condition as existed, or

was required to be constructed prior to the destruction or damage. During years six through

10, the Licensee shall so restore the Licensed Premises if the cost thereof does not exceed

75% of the replacement value of the Licensed Premises immediately prior to the

destruction or damage. During years 11 through 15, the Licensee shall so restore the

Licensed Premises if the cost thereof does not exceed 50% of the replacement value of the

Licensed Premises immediately prior to the destruction or damage. During years 16

through 20, the Licensee shall so restore the Licensed Premises if the cost thereof does not

exceed 25% of the replacement value of the Licensed Premises immediately prior to the

destruction or damage.

c) In the event the cost to restore the Licensed Premises exceeds the amounts stated in sub-paragraph (b), the Licensee and State Parks shall each have the right, by notice to the

other, to terminate this License. Upon such notice and within thirty (30) days thereof

Licensee, at Licensees sole cost and expense, shall demolish and remove from the Licensed Premises all of the capital improvements and/or debris remaining after the

damage or destruction. In the event of such termination, Licensee shall pay to State Parks

all fees due for the period through and including the date of loss from casualty, and

Licensee and State Parks shall otherwise finalize all open matters and obligations between



23

them. Should State Parks elect to terminate this License under sub-paragraph (c), within

thirty (30) days of Licensees receipt of such notice, Licensee shall have the right to elect, upon written notice to State Parks, to restore the Licensed Premises at Licensees sole cost and expense.

d) Under any sub-paragraph of this section, if Licensee is to restore the Licensed Premises, such restoration work shall be subject to the approval of State Parks pursuant to

the same terms of this License as are applicable to capital improvement projects, including

without limitation, the provisions of Attachment C hereof. Pending Licensees restoration of the Licensed Premises to reasonably serviceable condition consistent with the setting

and architectural style of the existing building, and provided that the Licensee diligently

pursues all restoration work to completion within a reasonable time, the License Fee

accruing hereunder shall be permanently abated until a temporary certificate of occupancy

is issued by State Parks for the restored and repaired Licensed Premises.

e) If the loss from casualty does not totally destroy the Licensed Premises or otherwise substantially interrupt or impede Licensees performance hereunder, Licensee shall proceed with performance of this License. In such event, State Parks and Licensee shall agree to an

equitably proportionate abatement of the License Fee, but only to the extent reasonably

feasible and to the proportionate extent that Licensees operations are impeded or interrupted by such casualty loss.

f) State Parks, as a loss payee under the Licensees Property Insurance under Section 32 of this License, shall hold in escrow funds received from said insurance proceeds to

provide for the demolition, restoration and/or repair of the Licensed Premises in accordance

with this Section. Said funds shall be paid to the Licensee, its contractors and material

suppliers, in accordance with Attachment C, upon an Architects Certificate of Completion, submitted on a monthly or other regular basis.

35. Termination

a) In addition to all other rights of termination provided by law and in this License,

if any one or more of the following events shall occur, that is to say:

i. Licensee shall become insolvent, or shall take the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of

creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking

an arrangement or its reorganization or the readjustment of its indebtedness under

the federal bankruptcy laws or under any other law or statute of the United States

or of any State thereof, or consent to the appointment of a receiver, trustee, or

liquidator of all or substantially all its property; or

ii. By order or decree of a court, Licensee shall be adjudged bankrupt or an order shall be made approving a petition filed by any of the creditors seeking its

reorganization or the readjustment of its indebtedness under the federal



24

bankruptcy laws or under any law or statute of the United States or of any State

thereof; or

iii. A petition under any part of the federal bankruptcy laws or an action under any present or future insolvency law or statute shall be filed against Licensee and

shall not be dismissed within forty-five (45) days after the filing thereof; or

iv. The actual or purported letting hereunder of the interest or estate of Licensee under this License shall be transferred to, pass to or devolve upon, by

operation of law or otherwise, any other person, firm or corporation except upon

the express written approval of State Parks; or

v. By or pursuant to, or under authority of any legislative act, resolution or rule, or any order or decree of any court or governmental board, agency or officer,

a receiver, trustee, or liquidator shall take possession or control of all or

substantially all the property of Licensee, or any execution or attachment shall be

issued against Licensee or any of its property, whereupon possession of the

Licensed Premises shall be taken by someone other than Licensee, and any such

possession or control shall continue in effect for a period of twenty (20) days; or

vi. Any lien is filed against the Licensed Premises because of any act or omission of Licensee and is not removed or bonded as provided for in Paragraph

37 of this License; or

vii. Licensee shall fail duly and punctually to pay the license fees or to make any other payment required hereunder when due to State Parks and such failure

shall continue for a period of twenty (20) days after State Parks shall have given

Licensee a written notice and demand therefore; or

viii. Licensee shall fail to keep, perform and observe each and every material promise, covenant and agreement set forth in this License on its part to be kept,

performed, or observed, within ten (10) days after receipt of notice of default

thereunder from State Parks (except where fulfillment of its obligation requires

activity over a period of time, and Licensee shall have commenced to perform

whatever may be required for fulfillment within ten (10) days after receipt of

notice and continues diligently such performance without interruption except for

causes beyond its control); or

ix. Licensee shall be found to have intentionally falsified any information provided to State Parks, including but not limited to that provided in compliance

with Report of Lobbying Contacts, and Comptrollers Bulletin G-221, Vendor Responsibility, and such failure shall continue for a period of twenty (20) days

after State Parks shall have given Licensee a written notice and demand therefore.



25

x. Licensee shall cease to be duly authorized to conduct business in the State of New York.

Then upon the occurrence of any such event or at any time thereafter during the

continuance thereof, State Parks may by ten (10) days notice terminate this License, such

termination to be effective upon the date specified in such notice. Such right of

termination and the exercise thereof shall be and operate as a conditional limitation.

b) No acceptance by State Parks of license fees, charges or other payments in whole

or in part for any period or periods after a default in any of the terms, covenants and

conditions to be performed, kept or observed by Licensee shall be deemed a waiver of

any right on the part of State Parks to terminate this License.

c) No waiver by State Parks of any default on the part of Licensee in performance of

any of the terms, covenants or conditions hereof to be performed, kept or observed by

Licensee shall be or be construed to be a waiver by State Parks of any other or

subsequent default in performance of any of the said terms, covenants and conditions.

d) The rights of termination described above shall be in addition to any other rights

of termination provided in this License and in addition to any rights and remedies that

State Parks would have at law or in equity consequent upon any breach of this License by

Licensee, and the exercise by State Parks of any right of termination shall be without

prejudice to any other such rights and remedies.

e) Licensee hereby waives its right to trial by jury in any summary proceeding,

ejectment or other action that may hereafter be instituted by State Parks against Licensee

in respect of the Licensed Premises or in any action that may be brought by State Parks to

recover fees, damages, or other sums payable hereunder. Licensee shall not interpose any

claims as counterclaims in any summary proceeding or action for non-payment that may

be brought by State Parks unless such claims would be deemed waived if not so

interposed.

36. Vendor Responsibility

a) Licensee shall at all times during the License term remain a responsible vendor. Licensee agrees, if requested by State Parks, to present evidence of its continuing legal

authority to do business in New York State, its integrity, experience, ability, prior

performance, and organizational and financial capacity to carry out the terms of this

License.

b) State Parks reserves the right to suspend any or all activities under this License, at any time, when State Parks discovers information that calls into question the

responsibility of Licensee. In the event of such suspension, Licensee will be given

written notice outlining the particulars of such suspension. Upon issuance of such notice,

Licensee must comply with the terms of the suspension order. Licensed activities may



26

resume at such time as State Parks issues a written notice authorizing resumption of

licensed activities.

c) Notwithstanding the provision of Section 35, Termination, upon written notice to Licensee, and a reasonable opportunity to be heard with appropriate State Parks staff, this License may be terminated by State Parks at Licensees expense where Licensee is determined by State Parks to be non-responsible. In such event, State Parks may pursue

available legal or equitable remedies for breach.

37. Force Majeure

If either State Parks or Licensee shall be delayed or prevented from the performance of any

act required by this License by reason of acts of God, weather, earth movement, lockout or

labor trouble, unforeseeable restrictive governmental laws or regulation, or acts of war, riot

or other similar causes, without fault and beyond the reasonable control of the party

obligated, performance of such act shall be excused for the period of the delay and the

period for the performance of such act shall be extended for a period equivalent to the

period of such delay; provided, however, nothing in this section shall excuse Licensee from

the prompt payment of any and all License fees payable to State Parks pursuant to this

License.

38. Compliance with all Laws, Rules and Regulations

Licensee shall comply with all federal and state laws, codes and regulations applicable to

the conduct of the activities authorized by this License, including all other applicable

governmental regulations affecting the Licensed Premises in regard to the sale, use and

storage of foodstuffs, beverages, and tobacco. Licensee shall procure at its own expense all

permits, licenses or other approvals necessary for the performance of this License.

39. Choice of Law/Damages

a) This License shall be governed and interpreted in accordance with the laws of the

State of New York. Any and all claims against State Parks arising out of this License shall

be limited to money damages and commenced exclusively in, and subject to the jurisdiction

of the New York State Court of Claims in Albany County, New York.

b) Any and all claims against Licensee for damages to State Parks shall be

enforceable in any appropriate court in Albany County, New York.

40. Integration Clause

This License shall not be materially amended, changed or otherwise modified except in

writing signed by both parties and approved by the Attorney General and Office of the

State Comptroller. Except to the extent that documents are incorporated herein by

reference, this License constitutes the entire agreement between the parties concerning



27

the subject matter hereof and supersedes all prior agreements and understandings of the

parties in connection therewith. No covenant, representation or condition not expressed

herein shall be effective to interpret, change or restrict the express provisions of this

License. This License shall be interpreted without construing any provision in favor of or

standard concession license agreement with state parks office

Documents

license documents

grant of license

whirlpool state park

standard concession

new york state office

new york attachment

new york vendors

performance bond license