26052 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

DEPARTMENT OF THE INTERIOR

National Park Service

Standard Concession Contract;

Revision

ACTION: Final Revision of the National

Park Service Standard Concession

Contract.

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 which in many

significant ways affects the content of

concession contracts to be entered into

after its effective date. Accordingly, NPS

amends its existing standard concession

contract to conform to the requirements

of the 1998 Act and to otherwise make

improvements to the standard form.

NPS, although not required to do so

by law, sought by publication in the

Federal Register on September 3, 1999,

public comments on the proposed

standard concession contract to assist it

in the development of a final version as

a matter of public policy. Similarly, NPS

sought public comment on the proposed

exhibits to the contract and amended

environmental language by publication

in the Federal Register on February 23,

2000. NPS, after consideration of public

comments, adopts a new standard

concession contract. NPS points out that

the new standard concession contract is

only an internal guideline for the form

of concession contracts. The form may

be changed by the Director in his

discretion to accommodate the

circumstances of any particular

contracting situation or otherwise as

long as the contract form used is

consistent with the 1998 Act and 36

CFR part 51.

EFFECTIVE DATE: June 5, 2000.

FOR FURTHER INFORMATION CONTACT:

Cindy Orlando, Concession Program

Manager, National Park Service, 1849

‘‘C’’ Street, NW., Washington, DC 20240

(202/565–1219).

SUPPLEMENTARY INFORMATION: The 1998

Act, among other matters, amended the

statutory policies and procedures under

which NPS operates its concession

program. The new law requires

adoption of new regulations governing

the award, content and management of

concession contracts. On June 30, 1999,

NPS published for public comment

proposed regulations implementing the

new law. The final new regulations

were published in the Federal Register

on April 17, 2000. The final standard

concession contract set forth in this

notice reflects the requirements of the

1998 Act and the requirements of the

amended 36 CFR part 51. It also reflects

a variety of improvements NPS wishes

to make to its standard concession

contract, including a new organizational

structure for the sake of clarity.

Public Comments

Fifteen public comments were

received in response to the public

notice, all but one from existing

concessioners or their attorneys. For the

most part, the comments were negative,

some going so far as to state that ‘‘no

one’’ will submit proposals under the

terms of the new concession contract.

NPS disagrees. It believes that the new

contract form is appropriate in light of

the 1998 Act and proper administration

of the NPS concessions program. NPS

also believes that it will have no

difficulty attracting qualified business to

submit proposals for new concession

contracts. NPS concession businesses

are profitable and enjoyable. NPS

considers that many qualified

companies will seek to become

concessioners under the terms of the

1998 Act, the amended 36 CFR Part 51

and the new standard concession

contract.

Several commenters philosophically

objected to the special terms that NPS

concession contracts contain, terms that

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. These

include the ability to describe and

modify the nature of concessioners’

operations from time to time and the

ability to terminate the contract when

necessary for resource and visitor

protection. NPS appreciates that these

types of authorities are not typical in

commercial leasing or contracting

arrangements. However, they are

essential to achieving the NPS mission

of protecting and preserving park areas

and their visitors.

NPS points out that the provisions

objected to for the most part are not new

provisions but have been successfully

implemented over many years in a

cooperative relationship with

concessioners that share the goals of

preservation and protection of park

areas and visitors. A concession contract

is a special form of government contract

that requires the contractor to accept

terms and conditions necessary to

achieve these goals. NPS does not

expect every businessperson to be

willing to accept these terms and

conditions. However, NPS considers

that, as in the past, it will be able to

attract qualified businesspersons,

committed to the objectives of park area

protection, to become NPS

concessioners.

Another general comment was to the

effect that the NPS standard contract is

a ‘‘contract of adhesion,’’ i.e., a

prospective concessioner is not given an

opportunity to negotiate the terms of a

contract. NPS disagrees. If a prospective

concessioner seeks authorization to

operate within the park, he must agree

to the conditions placed on such

operation by the federal agency charged

with protecting and preserving the

national park resources.

Several comments objected to

including contract provisions by

reference to 36 CFR part 51. The

leasehold surrender interest provisions

of 36 CFR part 51 were cited by

reference to protect against inadvertent

changes to the rules by individual

contracts, to shorten the contract, and to

make the contract easier to understand.

However, in response to this comment,

and to ensure clarity, NPS has included

as Exhibit A to the final contract

relevant leasehold surrender provisions

contained in 36 CFR part 51 as express

terms of the contract rather than

incorporating these terms by reference

to 36 CFR part 51.

A number of comments expressly

incorporated by reference objections the

commenters had made on the proposed

amendment to 36 CFR part 51. Those

comments are not addressed here unless

necessary in relation to the new

standard contract. The preamble to the

final 36 CFR part 51 addresses public

comments on the proposed regulatory

amendment.

A concessioner organization with

some 150 existing concessioner

members made extensive comments on

the proposed concession contract.

Reference in the analysis to comments

from the ‘‘general concessioner

organization’’ refers to this incumbent

concessioner organization and to any

individual concessioners that endorsed

the comments of the general

concessioner organization.

An environmental consulting firm

suggested inclusion of references to

environmental management matters in a

number of places in the contract. NPS

considers these suggested changes to be

redundant for the most part, as the

environmental protection provisions of

the contract are comprehensive. A

further discussion of these issues is

contained in section 6.

NPS has made several editorial and

conforming changes to the proposed

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26053

contract form in addition to the changes

discussed below. It has also re-labeled

the exhibits to the contract to reflect

their final sequence in the contract and

defined ‘‘days’’ as used in the contract

as calendar days. Two new general

provisions have been added to section

19, a standard non-waiver clause and a

reference to 28 U.S.C. 2514 with respect

to claims arising from the contract. In

addition, for the sake of clarity, the final

contract includes the definition of

‘‘subconcessioner’’ as set forth in 36

CFR part 51.

Section-by-Section Analysis of

Comments and Changes

The following discusses significant

comments made on the several sections

of the proposed standard contract.

Where no discussion is included, no

significant comments were received or

comments received primarily were

concerned with related provisions of the

proposed concession regulations.

Opening Paragraph

A commenter objected to the

description of the parties to the contract

on the grounds that it suggests that all

partners of a partnership must execute

the contract. This is not the case.

However, a clarifying change has been

made in the final contract.

Purpose and Authorities

Section 1. Term of Contract

A commenter objected to the use of

the word approximately in this

provision. It has been deleted from the

final contract. It also objected to the fact

that the contract term may be shortened

if the concessioner does not complete

required improvements under the terms

of the contract for reasons beyond its

control. This provision has been

retained as a necessary and prudent

contract term. However, a sentence has

been added expressly referencing the

authority of NPS to extend the

completion date for reasons beyond the

control of the concessioner.

Section 2. Definitions

2(a). Applicable Laws

Several commenters objected to this

definition as being overly broad because

of possible changes in law. NPS

considers this concern to be unfounded.

Changes in law frequently have

applicability to existing government

contracts. Furthermore, this concept is

not new and has been standard in NPS

concession contracts for many years.

Section 2(b). Areas

Section 2(c). Capital Improvement

Section 2(d). Concession Facilities

Several commenters suggested that

the contract should spell out in more

detail the concessioner’s responsibility

for maintenance of Concession

Facilities. The Maintenance Plan that is

attached to each NPS concession

contract describes in detail the

maintenance responsibilities of the

concessioner.

Section 2(e). Director

Section 2(f). Exhibit or Exhibits

Section 2(g). Gross Receipts

The general concessioner organization

objected to the definition of gross

receipts on several grounds, stating,

among other matters, that NPS should

have no ‘‘right’’ to receive a franchise

fee on the activities of the concessioner

outside of park areas. However, the

definition of gross receipts refers to

receipts generated ‘‘pursuant to the

rights granted by this contract.’’ It is

entirely appropriate that NPS seek a

franchise fee in the form of a percentage

of the concessioner’s gross receipts for

all receipts generated pursuant to the

rights granted by the concession

contract.

The commenter requested a change to

exclusion (ix), renumbered (9), to clarify

that payments from leasehold surrender

interest are excluded from gross

receipts. No change has been made

because the definition, as proposed,

does not include the concept that

payments of leasehold surrender

interest are included in gross receipts.

Item (x), renumbered (10), has not

been changed as requested by the

commenter. The commenter

misunderstands it. The provision

applies to taxes that are added to

approved sale prices that are collected

by the concessioner and remitted to the

taxing authority.

Most of the other technical

suggestions made by the commenter

have been considered and rejected as

inappropriate. Particularly, the terms of

the definition preclude the concern that

gross receipts include payments to the

concessioner for work the concessioner

may perform for NPS. Any such

payments would necessarily be under

the terms of a procurement contract and

not a concession contract.

Another commenter requested that

the definition of gross receipts be

changed so as to state that the franchise

fee for outfitters and guides is calculated

only on activities conducted within

park area boundaries pursuant to the

rights granted by the contract. NPS has

not made this change as it considers that

it has a right and an obligation to collect

franchise fees on all revenues of a

concessioner derived from the rights

granted by the contract regardless of

where the activities occur. The

commenter, however, argues that some

NPS field managers attempt to calculate

franchise fees based on all receipts of a

concessioner, no matter how derived. If

this is true, it is a management error, not

a matter that requires changes to the

standard contract.

Section 2(h). Gross Receipts of

Subconcessioners

The general concessioner organization

states that the gross receipts of

subconcessioners should have the same

exclusions as concessioner gross

receipts. NPS has changed this section

in the final contract to make clear that

the gross receipts of subconcessioners

reported to the concessioner are not

subject to exclusions but that the

general exclusions applicable to the

concessioners’ gross receipts extend to

its gross receipts generated by the

subconcessioner.

Section 2(i). Leasehold Surrender

Interest

Section 2(j.) Leasehold Surrender

Interest Value

Section 2(k). Major Rehabilitation

Section 2(l). Possessory Interest

Section 2(m). Real Property

Improvements

Section 2(n). Superintendent

Section 2(o). Visitor Services

A commenter states that the words

‘‘Section 3(a)’’ should be removed so as

to include services provided by the

concessioner no matter where

referenced in the contract. However,

Section 3(a) is the only place in the

standard contract that describes visitor

services.

NPS has also added a new definition,

(f), to this section to clarify that the term

‘‘days’’ used throughout the contract

refers to calendar days. This section has

been re-lettered accordingly.

Section 3. Services and Operations

Section 3(a). Required and Authorized

Visitor Services

A commenter suggested that the

inclusion of the instruction under this

section to the effect that a concessioner

may only provide unspecified visitor

services ‘‘incidental’’ to the specified

visitor services will stifle innovative

concession programs and the

concessioner’s ability to meet the

expectations of the public. NPS

26054 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

disagrees, and notes that this instruction

has been standard in NPS concession

contracts for many years. In addition,

concession contracts may be amended

by agreement of the parties to add

additional services in certain

circumstances. NPS, in the amendment

to 36 CFR part 51, has addressed the

scope of additional services that may be

added to a concession contract by

contract amendment in response to

public comments. In light of 36 CFR

part 51, the sentence regarding

incidental services has been deleted in

the final contract.

Section 3(b). Operation and Quality of

Operation

Several commenters objected to this

section on the grounds that it is too

vague, i.e., operations must be

conducted to the satisfaction of NPS.

NPS disagrees. In the first instance, it

notes that all existing NPS concession

contracts contain this provision in one

form or another, including the contracts

of all of the members of the general

concessioner organization. NPS is

unaware of any litigation at least since

1965 based on the alleged vagueness of

this term. A comment also suggests that

the phrase ‘‘except as may be provided

by the Director’’ be added to the second

sentence of this provision. NPS has

made a change to reflect this comment.

Section 3(c). Operating Plan

Several commenters objected to this

provision as it gives the Director

authority to amend the terms and

conditions of a contract’s Operating

Plan. However, NPS notes that this

circumstance is required by the

obligations of NPS under law to ensure

that a concessioner’s operations are not

detrimental to the resources of the area

or to park visitors.

The concept that NPS and the

concessioner could agree ten or twenty

years in advance as to the details of the

concessioner’s operations in the future

is untenable. For example,

circumstances may occur where, in an

effort to protect the safety of park

visitors, NPS needs to limit the hours

that a hotel or restaurant may be open.

If NPS had agreed in an Operating Plan

that a hotel or restaurant would be open

certain hours, and any change in the

Operating Plan was subject to agreement

by the concessioner, NPS could be

effectively precluded from adequately

and appropriately protecting park

visitors to reflect the changed

circumstances.

Accordingly, the Operating Plan is

necessarily subject to change by NPS so

that it may carry out its responsibilities

under law for the proper management of

park areas. However, the provision

expressly states that changes may not be

inconsistent with the terms and

conditions of the main body of the

contract. NPS notes that this concept is

contained in the prior NPS standard

concession contract. It is not a new

provision. NPS has modified this

provision in the final contract, in

response to comments, to make clear

that any changes to an operating plan

must not only be consistent with the

terms of the main body of the contract

but must also be reasonable and in

furtherance of the purposes of the

contract.

Section 3(d). Merchandise and Services

Section 3(d)(1)

The general concessioner organization

states that this provision is too broad.

However, this same (or similar)

provision is contained in all existing

concession contracts, including the

contracts of all of the members of the

organization. NPS does not consider it

to be too broad; rather, it provides the

NPS the ability to carry out its

responsibilities under law for the proper

management of park areas.

Section 3(d)(2)

A commenter objected to this

provision on the grounds that it is too

broad, suggesting that it applies to

confirmation of reservations and other

day-to-day activities of a concessioner.

In response, NPS has included the word

‘‘promotional’’ to modify ‘‘material’’ in

the final contract. As requested by the

general concessioner organization, the

phrase ‘‘in connection with the services

provided under the Contract’’ has been

included in the final contract.

Section 3(d)(3)

The general concessioner organization

objected to the term ‘‘all’’ as contained

in this section. NPS has deleted the

word in the final contract.

Section 3(e). Rates

The general concessioner organization

requests that the standard contract

contain provisions that allow the

concessioner pricing flexibility without

gaining the approval of NPS. NPS does

not generally include in concession

contracts rate approval provisions

except by way of reference to NPS rate

approval guidelines. However, the NPS

rate approval guidelines do provide for

pricing flexibility without NPS approval

in certain circumstances.

Section 3(f). Impartiality as to Rates and

Services

NPS has added the phrase ‘‘subject to

Section (f)(2) and (f)(3) below’’ to this

provision as requested by the general

concessioner organization. It also notes

that Exhibit C was published for public

comment on February 23, 2000. It has

also changed Section 3(e)(2) to make

clear that any modification of a pricing

policy by NPS will be in the course of

the general rate approval program.

Section 4. Concessioner Personnel

Section 4(a)(1)

Section 4(a)(2)

The general concessioner organization

and others objected to this section on

the grounds that Exhibit C may be

unlawful as a result of a judicial

decision. The Exhibit C included in the

standard concession contract meets all

legal requirements.

Section 4(a)(3)

Section 4(a)(4)

Several commenters objected to this

section as being too burdensome. NPS

has limited its application in the final

contract to persons to whom a job has

been offered. It has not deleted the word

‘‘appropriate’’ as requested by one

commenter. The word indicates that the

level of effort regarding background

checks is to be commensurate with the

circumstances.

Section 4(a)(5)

Several commenters objected to this

section on the grounds that it is

impracticable to achieve. It has been

deleted from the final contract.

Section 4(a)(6)

Section 4(a)(7)

The general concessioner organization

objected to this section on the grounds

that it may require a concessioner to fire

an employee. That is correct. It may be

necessary to for a concessioner to fire an

employee, e.g., an employee that is

stealing from guestrooms, in order to

correct the situation. However, the word

‘‘fully’’ has been deleted in the final

contract as unnecessary.

Section 4(a)(8)

Several commenters objected to the

requirement that concessioners

maintain a drug free workplace to the

‘‘greatest extent possible.’’ NPS,

however, considers that most

concessioners and the American public

share this goal.

Section 4(a)(9)

Section 4(a)(10)

In response to a comment by the

general concessioner organization, NPS

has changed this section in the final

contract to make clear that it is

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26055

operative only when an employee is

found to be in violation of controlled

substance laws.

Section 4(b). Employee Housing

NPS has changed this section, in

response to comments, to limit it to the

reasonableness of rates a concessioner

charges employees for housing. It has

also changed the requirements for

employee recreational activities in

response to comments.

Section 5. Legal, Regulatory and Policy

Compliance

Section 5(a)

The general concessioner organization

objected to this section ‘‘if it purports to

give the government the right to renege

on vested contract rights.’’ NPS

considers that the section is appropriate

and in accordance with existing law

regarding the rights of the Congress or

an executive agency to amend statutes

or regulations promulgated under

statutes. NPS does not consider that this

section gives NPS the ability to alter

vested contract rights.

Section 5(b)

The existing concessioner

organization suggested that this section

be changed to make clear that it applies

to violations of law by the concessioner.

NPS has made a change in the final

contract in response to this comment.

Section 6. Environmental and Cultural

Protection

On February 23, 2000, NPS published

a revised proposed version of this

section (and minor modifications to

related sections) for public comment.

Thirteen public comments were

received and are responded to as

follows (except for comments that were

repetitive of comments received earlier

on the proposed concession contract

and regulations).

1. Addition of a New ‘‘Whereas Clause’’

One comment suggested that this

introductory clause is superfluous. NPS

disagrees. The clause sets forth an

understanding of the environmental

objectives of the contract. It is included

in the final contract.

2. Modification of the Definition of

‘‘Applicable Laws’’

No comments discussed this

definition except as a reiteration of

earlier comments.

3. Addition of a Definition of ‘‘Best

Management Practices’’

The general concessioner organization

objected to the concept of ‘‘Best

Management Practices’’ to the extent

that implementation of BMPs as defined

would not provide the concessioner a

financial return. NPS considers that in

many instances the implementation of

BMP’s will provide a specific return on

investment. In other circumstances, NPS

considers that investment in BMPs is

likely to enhance the quality of the

concessioner’s operations and,

therefore, indirectly provide financial

return.

Another commenter stated that it

considers the definition to be vague.

NPS does not consider this to be the

case. The concept of BMPs is not new;

it is well known in many commercial

settings. The commenter also asked

several specific questions regarding

implementation of BMPs. However, the

applicability of the BMP concept to

particular circumstances cannot be done

in the abstract. NPS does note, however

that the BMP implementation is

required only to the extent reasonable in

light of the particular circumstances of

the contract.

Another commenter suggested a

change to the definition to the effect that

BMPs are practices not required by law

or are used in the absence of regulatory

requirements. NPS does not consider

this definition to be accurate.

The definition of BMPs as proposed

by NPS is contained in the final

contract.

4. Proposed Change to Section 5

A comment suggested that requiring

notice of violation of environmental

laws and taking corrective action is

ambiguous and burdensome. NPS does

not consider either to be the case. The

provision is included in the final

contract.

5. Proposed Changes to Section 6

Section 6(a). Environmental

Management Objectives. A comment

suggested that NPS adopt a

corresponding obligation to incorporate

BMPs in its activities. This is being

done administratively in the form of

new environmental management

policies and practices being developed

for management of the national park

system.

Section 6(b). Environmental

Management Program. A comment

questioned how NPS intends to take

into account the costs associated with

the development of an Environmental

Management Program by NPS. NPS

considers that the costs of

environmental management activities

are costs of doing business by all

commercial entities that engage in

activities that may affect the

environment. NPS does not consider

that associated costs for these purposes

require any more consideration by NPS

than a concessioner’s other costs, e.g.,

insurance, maintenance, personnel, etc.

A comment suggested that this

subsection should be amended to allow

for other methods of measuring

environmental performance. NPS,

however, considers that the

identification of specific goals and

targets is the best means to achieve the

purposes of the Environmental

Management Program.

A commenter suggested that the goals

for the Environmental Management

Program should be established by NPS

rather than the concessioner and that

they must meet minimums set by NPS.

This, however, is not the intention of

NPS. The plan is to be developed by the

concessioner to meet the objectives set

forth in Section 6(a).

Several comments objected to the

term ‘‘environmental audits’’ as used in

this section as having unintended legal

implications. An environmental

consulting firm suggested changing the

term to environmental ‘‘selfassessments.’’ This change has been

made in the final provision.

The environmental consulting firm

also suggested that the provision require

environmental outreach programs to be

conducted by the concessioner. NPS

considers this to be an appropriate

objective but believes that it should be

achieved through encouragement rather

than by contractual obligations. The

same is true with the comment’s

suggestion for concessioner employee

award programs for exceptional

environmental performance.

Section 6(c). Environmental

Performance Measures. A commenter

suggested that a new provision be added

to this section requiring the

concessioner to comply with the NPS

environmental audit program. This

comment misunderstands the nature of

this program.

Section 6(d). Environmental Data,

Reports, Notifications, and Approvals. A

commenter suggested that the

responsibility for notifications of

discharges should be limited to

discharges on lands assigned to the

concessioner. NPS disagrees. Discharges

anywhere in the vicinity of the park area

are of concern to NPS.

The same commenter suggested that a

concessioner should not have to submit

private communications with counsel to

NPS. However, section (d)(5) does not

state such a requirement.

A comment suggested that the term

‘‘waste stream’’ is vague. NPS disagrees

and notes that the types of waste a

concession operation will generate will

vary from park to park. No other

26056 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

comments suggested that the term was

vague.

The same comment suggested that

section (d)(3) may require notice of any

type of waste, not just hazardous

substances. However, the section only

applies to waste that is subject to

regulation under applicable law.

A comment suggested that

notifications be protected against public

disclosure. Usual public availability

rules (under the Freedom of Information

Act) will apply to notifications received

by NPS.

A comment suggested that the

requirement for a concessioner to give

NPS notice of violations may be

inconsistent with laws that give States

environmental enforcement

responsibilities in certain areas. The

NPS requirement is not inconsistent

with these laws. NPS has a right as

owner of the property to be made aware

of violations of law by a concessioner,

irrespective of the law’s enforcement

authority.

A comment stated that requiring

notice of any ‘‘threatened’’ notice of

violation is too broad. NPS has changed

this section to make clear that it applies

only to written communication from

appropriate authorities.

Section 6(f). Corrective Action. A

comment, referring to comments on the

initial proposed section 6, requested the

deletion of the word ‘‘clean up’’ on the

grounds that only clean up required by

law or specific guidelines incorporated

into the contract should be allowed.

NPS disagrees. NPS has the right, as the

owner of the property, to require

concessioners to clean up in the event

of environmental accidents. As to

guidelines for clean up, they will be

dealt with as necessary in operation and

maintenance plans and NPS policies.

The comment also requested a

clarification that this section does not

apply to the removal of building

materials already incorporated into

structures. This may generally be the

case, but, if required by Applicable

Laws, such removal must be

undertaken.

Several comments suggested that it is

unclear that this section is intended to

be applicable only to violations of

Applicable Laws. NPS considers that

the section is clear that this is the case.

Another comment suggests that the

phrase ‘‘response actions necessary to

remediate the release is vague.’’ NPS

disagrees and notes that only two

duplicative comments made this point.

This section was incorrectly

numbered and is now subsection (e) in

the final contract.

Section 6(g). Indemnification and

Cost Recovery for Concession

Environmental Activities. A comment

suggested that subsection (g)(2) be

amended to clarify that NPS orders for

environmental clean up or corrective

action may not be inconsistent with

requirements of enforcement

authorities. NPS agrees and has made a

clarification to this effect.

A comment suggested that the

indemnification clause of this section

should be mutual. NPS, however, even

if this were appropriate, does not have

legal authority to enter into

indemnification provisions. The same

comment suggested that the

indemnification clause should make

clear that the indemnification does not

extend to losses caused by the United

States. NPS considers that the clause is

clear in this respect. The comment also

states that costs to be assessed must be

reasonable. NPS considers that this is

implicit in the provisions. Finally, the

comment suggests that the provision

should include a clause to the effect that

it does not foreclose the concessioner’s

right to collect costs from a responsible

third party. NPS has included such a

provision in the final contract.

7. Adding a New Subsection to Section

(a)(3)

No express comments were received

on this change. It has been included in

the final contract.

8. Amendment of Proposed Section

15(b)

No express comments were received

on this section. It has been added to the

final contract.

9. Amending Section 16 of the Proposed

Contract

No express comments were received

in response to this proposed change.

Section 7. Interpretation of Area

Resources

Section 7(a)

The general concessioner organization

objected to this section as being too

vague. It has been modified in the final

contract to address the concerns of the

commenter.

Section 7(c)

This section has been deleted as

unnecessary in the final contract.

Section 8. Concession Facilities Used in

Operations by the Concessioner

Section 8(a). Assignment of Concession

Facilities

Several commenters objected to this

section on the grounds that it permits

NPS to assign additional lands or

buildings to the concessioner without

its consent. The section, however, does

not say this. Adding additional

concession facilities to the

concessioner’s land assignment would

require mutual agreement.

Section 8(b). Concession Facilities

Withdrawals

The general concessioner organization

objected to this section on the same

grounds it objected to Section 8(a).

However, Section 8(b) is different. It

permits NPS to withdraw land

assignments without the agreement of

the concessioner in limited

circumstances, i.e., that withdrawal is

necessary for the enhancement or

protection of park area resources or

visitor protection and enjoyment, the

operations utilizing the land have been

terminated, or the land is no longer

necessary for the concession operation.

NPS notes that this provision is

unchanged from the prior standard

contract with respect to resource and

visitor concerns. The right to withdraw

assignment in these circumstances is

necessary in order to carry out NPS’s

responsibilities for management of park

areas. However, in response to the

comment, NPS has deleted the word

‘‘enhancing’’ in the final contract. NPS

has not deleted the right to withdraw

land when it is no longer necessary for

the purposes of the concessioner’s

operations.

Commenters objected to this right;

however, it is necessary to permit NPS

to carry out its statutory responsibility

to only permit ‘‘necessary and

appropriate’’ concession facilities and

activities on parklands. Circumstances

change over time so that land assigned

to a concessioner as ‘‘necessary’’ may

cease to be necessary at a later date.

However, NPS, in response to

comments, has included in Section 8(c)

the provision that the concessioner may

terminate the concession contract in the

event of permanent land assignment

withdrawals by the Director which the

concessioner considers are essential for

the concessioner to provide the visitor

services required by the contract.

Section 8(c). Effect of Withdrawal

The general concessioner organization

requested that the word ‘‘partial’’ be

included before the word ‘‘termination’’

in the first sentence. However, the

commenter apparently misunderstands

this section. NPS would be obliged to

pay the concessioner for any leasehold

surrender interest it may have in any

permanently withdrawn capital

improvement. The organization also

asked that provisions be included in the

contract for payment to the concessioner

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26057

for any personal property associated

with withdrawn Concession Facilities.

NPS does not consider this to be

appropriate. Except in special

circumstances, personal property is

owned by the concessioner and may be

disposed of as the concessioner sees fit.

This section is unchanged in concept

from the current standard concession

contract.

Section 8(d). Right of Entry

The general concessioner organization

objects to this section on the grounds

that it is overbroad. NPS considers the

provision necessary to properly carry

out its responsibilities for

administration of the park area. It also

notes that the United States is the owner

of all Concession Facilities within the

boundaries of the park area.

Section 8(e). Personal Property

The general concessioner organization

and others objected to this section on

the grounds discussed under 8(c) and

also on the grounds that this section

gives NPS too much authority to

withdraw improvements. However, the

section by its terms only applies to

personal property, not real property

improvements.

Section 8(f). Condition of Concession

Facilities

The general concessioner organization

objects to this section on the grounds

that a concessioner should not be

responsible for deficiencies in a

building assigned to it by the

government.

However, the responsibility for

maintenance of government assigned

property is discussed in Section 10 of

the contract. The prospective

concessioner should take steps to be

aware of the condition of the facilities

to be assigned to it prior to submitting

a proposal for a contract. As discussed

under section 8(a) above, the

concessioner cannot be assigned

additional lands or buildings under the

contract without the concessioner’s

consent. NPS, in these circumstances,

considers this provision to be

appropriate.

Section 8(g). Utilities Provided by the

Director

The general concessioner organization

objected to this section, stating that it

should be more specific about what

utilities may be provided by NPS and at

what cost. NPS has not made these

changes as it would be difficult to

describe all possible types of utilities

that may be applicable to the

circumstances of particular park areas.

NPS also notes that it cannot commit to

make utilities available to a

concessioner, as NPS cannot predict to

what extent it will have funds available

to construct and operate utilities. This

section has been changed to provide

that rates for utilities shall be

established in accordance with

applicable laws. NPS is not in a position

to establish prospectively by concession

contract the rates of utility services that

a concessioner may wish to purchase

over the term of a concession contract.

Section 8(h). Utilities Provided by the

Concessioner

The general concessioner organization

objected to this section on the grounds

that a concessioner should have a right

to obtain utilities from a third party

without the consent of NPS and to grant

utility companies access to park

property without the consent of NPS.

These suggestions manifestly conflict

with the responsibilities of NPS

regarding protection of park areas.

Section 8(h)(1)

The general concessioner organization

objects to this section on the grounds

that it requires a concessioner to

purchase water rights and turn them

over to NPS. The section, however, does

not say this. Rather, it states that a

concessioner shall acquire necessary

water rights through applicable State

procedures and assign any rights

obtained to NPS. The section does not

require purchase of existing water rights

by the concessioner. This section has

been in NPS concession contracts for

many years.

Section 8(h)(2)

The general concessioner organization

objected to this section on grounds that

it is unfair that the concessioner must

provide utilities to the Director at cost.

NPS does not consider it good business

to authorize a concessioner to install

utilities in a park area and make a profit

on the utilities when provided to the

government. This section has been in

NPS concession contracts for many

years.

Section 8(h)(3)

This section refers to appliances and

machinery installed in connection with

utility systems. NPS does not believe

these terms to be ambiguous. However,

the general concessioner organization

objected to this section on the grounds

that it is ambiguous. NPS has not

changed this section in the final

contract as NPS believes that it is not

vague or ambiguous. This section has

not been materially altered from

previous versions of the standard

contract.

Section 9. Construction or Installation of

Real Property Improvements

Section 9(a). Construction of Real

Property Improvements

A comment suggested that this section

should make clear that it only applies to

construction on government property.

NPS considers that the text of this

section makes this clear.

Section 9(b). Removal of Real Property

Improvements

The general concessioner organization

objected to this section on the grounds

that NPS, not the concessioner, owns

salvage from demolished Capital

Improvements. NPS has changed this

section in the final rule in response to

this comment.

The organization also objects to being

required to restore land it occupies

during a concession contract to a natural

condition. NPS disagrees. Land

disturbed for the purposes of a

concession operation should be subject

to restoration by the concessioner.

Section 9(c). Leasehold Surrender

Interest

Section 9(d). Concession Facilities

Improvement Program

Section 9(d)(1)

The general concessioner organization

suggests that this section be changed to

reference the Department of Labor’s

CPI–U Index. NPS has made this change

in the final contract. The organization

also requests that a ceiling on

improvement costs be included. NPS

has not accepted this suggestion. A

concessioner is able to make its own

cost estimates in advance of contract

award.

Section 9(d)(2)

Section 9(d)(3)

The general concessioner organization

argues that this section is too vague.

NPS disagrees and notes that the

substance of most of this section has

been contained in NPS concession

contracts for many years. The provisions

clearly state the obligations of the

parties regarding commencement of

construction.

Section 10. Maintenance

Section 10(a). Maintenance Obligation

Several commenters objected to this

section on grounds that it is too vague.

They suggest that the contract should

cover in detail all aspects of

maintenance. NPS disagrees with this.

Maintenance needs will change from

time to time and cannot possibly be

fully anticipated over the life of a longterm concession contract.

26058 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

Section 10(b). Maintenance Plan

Several commenters objected to this

section for the reasons discussed above

with respect to Operating Plans, i.e.,

that it allows NPS to revise Maintenance

Plans without the agreement of the

concessioner. The NPS response is the

same. NPS must have the ability to

specify maintenance obligations of a

concessioner over the term of a contract

in order to carry out its responsibilities

to protect and preserve park resources

and visitors. Maintenance requirements

are not static.

For example, it may be determined

during the term of a contract that the

use of a certain type of paint is

detrimental to a native plant species

located in the vicinity of a hotel. Unless

the use of the paint was determined to

be unlawful under Applicable Laws,

NPS would not necessarily be in a

position to effectively require that use of

the paint be stopped if a change to the

Maintenance Plan required the

agreement of the concessioner.

Accordingly, no change has been

made with respect to the general ability

of NPS to modify maintenance plans.

However, in response to comments, NPS

has changed this section in the final

contract to state that changes to a

Maintenance Plan must reflect

reasonable requirements in furtherance

of the purposes of the contract.

Section 10(c). Repair and Maintenance

Reserve

The general concessioner organization

argues that this provision is illegal for

the reasons discussed in its comments

on the proposed NPS concession

contracting regulations. These

comments are addressed in the

preamble to the final regulations.

NPS has made a change in this section

in response to comments. This is to

permit any funds left in the account at

the end of the contract to remain the

property of the concessioner upon the

expiration or termination of the

contract. However, this section has also

been changed to expressly state that any

failure by the concessioner to expend

funds from the reserve in accordance

with its purposes will be considered as

a material breach of the contract.

The general concessioner organization

made a number of other comments

regarding this section that were duly

considered by NPS. To the extent that

they did not repeat legal arguments

made in comments on the proposed

concession regulations, NPS does not

consider them to be of merit.

One commenter suggested that this

provision constitutes an illegal taking of

property. However, the provision

merely requires a concessioner to

maintain government property assigned

to it and to escrow sufficient funds for

this purpose. This is standard practice

in commercial leases.

Section 11. Fees

Section 11(a). Franchise Fees

The general concessioner organization

requested deletion of the second

sentence of this section on the grounds

that a concessioner should have a right

to request a waiver of franchise fees

under section 407(b) of the 1998 Act.

This is not the case. section 407(b) refers

to an adjustment of franchise fees, not

a waiver. Section 407(b) is reflected in

the terms of Subsection 11(d) of this

section.

Section 11(b). Payments Due

The general concessioner organization

suggests that any franchise fee

overpayments due a concessioner at the

expiration of a concession contract

should be remitted to the concessioner

by NPS. NPS has made this change in

the final contract.

Section 11(c). Interest

The general concessioner organization

suggests that NPS should have

discretion not to charge interest on

overdue payments. NPS disagrees. In

fact, it has a legal obligation to charge

interest on overdue payments to the

government. The commenter also

objects to the last sentence as vague and

overbroad. However, all the sentence

states is that the Director may impose

penalties for late payments in

accordance with applicable law. NPS

does not consider this sentence to be

vague or overbroad.

Section 11(d). Reconsideration of

Franchise Fees

NPS has made several changes to this

section in response to the comments of

the general concessioner organization

(and has used the term ‘‘adjustment’’ of

franchise fees to track the term used in

the 1998 Act).

First, NPS has made all aspects of the

adjustment process (except arbitration

of an appropriate adjusted fee if the

parties agree that extraordinary,

unanticipated changes have occurred)

subject to mutual agreement so that no

advantage is given NPS. This is

consistent with changes in the final

concession regulations. Second, it has

provided for prospective adjustments

only, as requested by the general

concessioner organization. Third, NPS

has amended the time periods in

accordance with the suggestions of the

commenter. Other conforming changes

have been made to this section in the

final contract.

NPS notes that several commenters

objected to the arbitration procedures to

be followed. The section has been

amended to state that the procedures are

to be agreed to by the parties or are to

be established by the arbitration panel.

Section 12. Indemnification and

Insurance

Section 12(a). Indemnification

The general concessioner organization

objected to the indemnification

provision as being too broad. NPS has

considered the views of the commenter

but believes the terms of the

indemnification provision are

appropriate. Nevertheless, NPS has

changed the phrase ‘‘relating to’’ to

‘‘connected with’’ in this section to

address this concern. Another

commenter suggested that a

concessioner should not be required to

indemnify NPS if the injury arose from

the negligence of NPS. NPS does not

consider that the indemnification

provision as written suggests this.

Section 12(b). Insurance in General

Several commenters objected to this

on the grounds that it permits the

Director to alter the contract’s insurance

requirements. However, the liabilities of

a concessioner necessarily will change

over time as a result of new

construction, new concessioner

activities or means to implement

activities, or changing visitor patterns

and activities. NPS must have the

authority to require changes to the

concessioner’s insurance program to

reflect changing conditions in order to

properly provide for the protection of

park resources and visitors. NPS, in

response to comments, has added a

sentence to this section in the final

contract setting forth the scope of any

changes that may be required.

Section 12(c). Commercial Public

Liability

NPS has amended subsection (4) in

response to public comments. However,

NPS has an obligation to park visitors to

make sure that concessioners carry

adequate insurance. Levels and types of

insurance necessarily change over time.

Section 12(d). Property Insurance

Several comments were made

regarding this section. NPS has duly

considered them and has made a change

to the final contract to make clear that

replacement cost coverage is the basis of

required property insurance. In

addition, it has changed the final

contract to make clear that the

concessioner may obtain additional

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26059

insurance other than that required by

NPS or in higher amounts. Also, it has

changed the final contract to clarify that

the concessioner is responsible for

repair or replacement of damaged

property even if insurance proceeds are

not sufficient.

The general concessioner organization

argued that monies a concessioner

spends to repair or replace property

over and above insurance proceeds

should result in leasehold surrender

interest. NPS agrees with this to the

extent that the concessioner may

construct or install a capital

improvement within the meaning of 36

CFR Part 51 with its own funds (not

insurance proceeds).

Finally, NPS has changed this section

in the final contract to provide that any

additional insurance NPS may require

must be consistent with industry

practices.

Section 13. Bonds and Liens

Section 13(a)

The general concessioner organization

states that historically NPS has not

required bonds. However, NPS

concession contracts for many years

have contained a bond provision. NPS

has changed this section in the final

contract to make clear that bond

amounts are to be reasonable in

response to a comment.

Section 13(b). Liens

The general concessioner organization

objects to this section only to the extent

that it should not include personal

property of a concessioner located

outside the boundaries of the park area.

NPS has amended this section in the

final rule to reflect this comment.

Another commenter suggested that the

government’s lien is unworkable in the

marketplace. However, this lien

provision has been included in NPS

concession contracts at least since 1965.

NPS considers it to be workable.

Section 14. Accounting Records and

Reports

Section 14(a). Accounting System

The general concessioner organization

considers that the $250,000 threshold

for accrual method accounting is too

low. NPS disagrees. NPS has a direct

interest in the accounting methods of

concessioners that pay a franchise fee

on gross receipts. NPS does not consider

that the benefits of the accrual method

are outweighed by any additional costs

that the general concessioner

organization asserts may result from use

of accrual method accounting.

The general concessioner organization

reads subsection (3) of this section as

suggesting that it is not proper for a

concessioner to purchase services from

an affiliate or allocate overhead. This is

not the case. The provision only states

that the concessioner must keep its

books in such a manner that no

diversion or concealment of profits may

result from such arrangements. This has

been a standard provision (in the

General Provisions section) of

concession contracts for many years.

Section 14(b).—Annual Financial

Report

The general concessioner organization

requested several changes to this

section. In response, NPS has changed

the time period in subsection (1) to 120

days. It has not changed the thresholds

for accounting by certified independent

accountants in order to protect the

interests of the United States in the

collection of franchise fees.

Section 14(c). Other Financial Reports

The general concessioner organization

objected to the last sentence of

subsection (1) on the grounds that the

concepts of useful life and book value

are irrelevant because of leasehold

surrender interest. NPS has changed the

section in accordance with this

comment.

Section 15. Other Reporting

Requirements

The general concessioner organization

objected to this section as overbroad.

NPS has considered these comments but

believes that the described reporting

requirements are necessary for the

proper administration of the park area.

Section 16. Suspension and

Termination

Section 16(a). Suspension

The general concessioner organization

objected to the circumstances in which

NPS may suspend a concessioner’s

operations under this section. NPS notes

that this provision is the same as in its

current standard contract. However,

NPS has modified this section in the

final contract in response to this

comment and to more directly track 36

CFR Part 51.

Section 16(b). Termination

Section 16(b)(1)

A commenter suggested that there is

no authority for NPS to have the ability

to terminate concession contracts ‘‘nor

is such power provided any government

agent under general contract law.’’ This,

however, is not the case. NPS clearly

has not only the authority but the

obligation to include termination

provisions in concession contracts in

circumstances, among others, where

park area and visitor protections so

require. NPS also notes that government

procurement contracts almost always

contain a ‘‘termination for convenience’’

clause which permits the government to

terminate the contract for any reason

whatsoever. The termination clause

contained in most current NPS

concession contracts and in the final

new contract is significantly more

restrictive (to the benefit of the

concessioner) than the standard

government termination for

convenience clause. NPS also notes that

this section is the same as contained in

the current NPS standard contract.

However, NPS has modified this section

in the final contract in response to this

comment and to more directly track 36

CFR part 51. It has also included the

modifier ‘‘material’’ with respect to

contract breaches in response to a

comment.

Section 16(b)(2)

The general concessioner organization

objected to this section on the grounds

that it should not permit partial

termination of a concession contract by

NPS. NPS notes that this section has

been contained in NPS concession

contracts for many years. However, in

response to this comment, NPS has

deleted reference to partial termination.

Section 16(b)(3)

The general concessioner organization

objected to this section with respect to

the ‘‘sole discretion’’ provided to NPS.

NPS has deleted this phrase in the final

contract. NPS has also, in response to

the comments of the general

concessioner organization, defined

‘‘repeated breaches’’ in the final

contract.

Section 16(b)(3)

The general concessioner organization

stated that this section should permit

the concessioner an appropriate time

period in which to obtain the dismissal

of such filings. NPS has not made this

change, as termination in these

circumstances is discretionary, not

mandatory.

Section 16(c). Bankruptcy

In response to the comments of the

general concessioner organization, NPS

has amended this section in the final

rule to provide for notification of NPS

in the event of the filing of a petition in

bankruptcy and to make clear that the

description of a concession contract

with respect to bankruptcy law is the

position of NPS.

26060 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

Section 16(d). Requirements in the

Event of Termination

Section 16(d)(1)

NPS has included the phrase ‘‘in

accordance herewith’’ after the word

‘‘contract’’ in this section as requested

by the general concessioner

organization.

Section 16(d)(2)

Section 16(d)(3)

The general concessioner organization

objects to this provision which requires

a concessioner, if requested by NPS, to

continue to operate for a period of time

after contract expiration or other

termination. This has been a standard

provision of concession contracts for

many years. However, in light of NPS’s

new authorities under the 1998 Act,

NPS does not consider this provision to

be necessary and has deleted it from the

final contract.

Section 16(d)(4)

NPS has considered the comments of

the general concessioner organization

and does not believe that this section

should be changed. The provision

provides adequate compensation to a

prior concessioner for the temporary use

by a new concessioner of the prior

concessioner’s personal property. NPS

notes, in response to a comment, that

the compensation provisions for

temporary use of a concessioner’s

property are generally the same or even

more beneficial to the concessioner than

those that have been contained in NPS

concession contracts at least since 1965.

Section 17. Compensation

Section 17(a). Just Compensation

The general concessioner organization

states that this provision requires the

concessioner to accept the

compensation provided by Section 17

even if NPS breaches the concession

contract.

However, the provision is only

applicable to the circumstances

described in the provision, which do

not reference breach of contract by NPS.

Section 17(b). Compensation for

Contract Expiration or Termination

Section 17(b) has been reworded for

clarity, to reflect the deletion of

subsection (c), and to delete its last

sentence as unnecessary.

Section 17(c). Compensation When

Contract Terminated for Default

The general concessioner organization

objected to this provision on the

grounds that NPS may not offset

leasehold surrender interest payments

based on damages caused by a

concessioner’s breach of contract. NPS

does not necessarily agree with this

comment but has deleted this section in

the final contract as unnecessary.

Section 17(d). Procedures for

Establishing the Value of a Leasehold

Surrender Interest

This provision has been changed in

accordance with the terms of the final

amendment to 36 CFR part 51 and for

clarity.

Section 17(e). Compensation for

Personal Property

NPS has modified this section in

response to comments from the general

concessioner organization. Particularly,

the contract now provides 30 days in

most cases for a concessioner to remove

its personal property from a park area

after contract expiration or termination.

This provision has been moved to

Section 16(d). However, NPS does not

agree that concession contracts should

provide compensation for a

concessioner’s personal property for the

reasons discussed above.

Section 18. Assignment, Sale, or

Encumbrance of Interests

This section has been clarified in the

final contract to make clear that a sale

or transfer is subject to all applicable

laws, including, without limitation, 36

CFR Part 51. Several commenters were

concerned that this provision (and other

provisions of the contract) permits NPS

to change the conditions for sales and

transfers by amending 36 CFR Part 51.

Amendments to 36 CFR Part 51,

however, or to other laws or regulations,

may be made applicable to existing

contracts only to the extent permissible

under law.

Section 19. General Provisions

Section 19(a)

Section 19(b)

The general concessioner organization

suggests that this provision requires

NPS to release concessioner

information. The provision, however,

merely states the fact that information

provided to NPS by a concessioner is

subject to public release if required or

authorized by law. NPS has clarified

this provision in the final contract in

this connection.

Section 19(c)

NPS has modified this section in the

final contract in response to a comment

from the general concessioner

organization that it should be clarified

to make clear that it only applies to

arrangements where a third party is to

provide visitor services. In addition,

NPS has deleted the sentences in this

section that permitted subconcessions

in limited circumstances. To the extent

that NPS may permit subconcessions in

the circumstances of a particular

concession contract, a contract

amendment would be negotiated with

the concessioner.

Section 19(d)

Section 19(e)

Section 19(f)

Section 19(g)

Section 19(h)

Section 19(i)

This section has been deleted in the

final contract as unnecessary.

Section 19(k)

Exhibits

On February 23, 2000, NPS published

for public comments proposed exhibits

to the proposed standard concession

contract. Thirteen comments were

received and responded to as follows.

An environmental consulting firm made

a number of comments on the exhibits

requesting that many references to

environmental concerns be included in

them. Some changes have been made in

response to these comments.

Exhibit A. Non-Discrimination (Exhibit

C in the Final Contract)

A comment suggested deleting

reference to the term ‘‘permit.’’ This

change has been made in the final

contract.

A comment suggested that the posting

requirements of this section might be

redundant with other federal

requirements. The inclusion of this

provision in the contract, however, is

required by law.

Exhibit B. Existing Facilities (Exhibit D

in the Final Contract)

A comment pointed out that the land

assignment under this section is limited

to ‘‘housekeeping purposes.’’ The term

‘‘housekeeping’’ has been deleted in the

final contract.

Exhibit C. Assigned Government

Personal Property (Exhibit E in the Final

Contract)

Exhibit D. Leasehold Surrender Interest

as of the Effective Date of the Contract

(Exhibit G in the Final Contract)

Exhibit E. Insurance Requirements

(Exhibit I in the Final Contract)

The general concessioner organization

made a number of suggestions regarding

this section. Several changes have been

made in the final contract in response

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26061

to these comments. However, in general,

NPS notes that this Exhibit E is

intended to be tailored on a case by case

basis to fit the needs of particular

concession operations.

A comment objected to the $5,000

self-insured retention as being

inconsistent with some concessioners’

business practices. This may be the

case, but NPS, in order to protect its

interests and those of park visitors,

considers this limit to be appropriate.

One commenter objected to the

concessioner being required to provide

NPS with copies of insurance policies.

However, this only occurs upon the

express request of NPS.

Several comments objected to the

specific deductibles required by this

Exhibit. NPS, however, considers that

relatively low deductibles are necessary

in order to assure that the concessioner

will have sufficient resources to cover

losses.

The proposed requirement for

professional liability insurance has been

deleted in response to comments.

A comment stated that flood and

other forms of insurance are not always

available. NPS notes that the insurance

exhibit will be tailored to fit the needs

of particular concession operations. If

insurance is not obtainable, as

determined by the Director, it will not

be required.

Exhibit F. Sample Maintenance Plan

(Exhibit H in the Final Contract)

The published maintenance plan was

a sample only. None of its provisions

(except for its introduction) are

required. Rather, a maintenance plan

will be developed for each concession

operation on the basis of the

circumstances of that operation.

Accordingly, the final contract includes

only the required introductory

paragraph of the maintenance plan but

not any of the sample provisions. A

number of comments objected in general

to the fact that this plan may be changed

from time to time by the

Superintendent. Such comments were

also made in response to the initial

publication of the proposed contract.

They are discussed in the response to

comments on Section 10(b). In addition,

in response to a comment, it is noted

that NPS administrative guidelines will

provide an administrative appeal by the

concessioner to the appropriate NPS

Regional Director with respect to

changes to a Maintenance Plan

proposed by a superintendent of a park

area.

The plan has been amended to

include reference to the fact that

amendments to it must be reasonable

and in furtherance of the purposes of

the contract.

Exhibit G. Operating Plan (Exhibit B in

the Final Contract)

The published operating plan is a

sample only. None of its provisions

(except for its introduction) are

required. An operating plan will be

developed for each concession

operation on the basis of the

circumstances of that operation.

Accordingly, the final contract includes

only the required introductory

paragraph of the operating plan but not

any of the sample provisions. A number

of comments objected in general to the

fact that this plan may be changed from

time to time by the Superintendent.

Such comments were also made in

response to the initial publication of the

proposed contract. They are discussed

in the response to comments on Section

3(c). In addition, in response to a

comment, it is noted that NPS

administrative guidelines will provide

an administrative appeal by the

concessioner to the appropriate NPS

Regional Director with respect to

changes to an Operating Plan proposed

by a superintendent of a park area.

The plan has been amended to

include reference to the fact that

amendments to it must be reasonable

and in furtherance of the purposes of

the contract.

Exhibit H. Concessioner Construction

and Repair and Maintenance Project

Procedures (Exhibit F in the Final

Contract)

A number of comments were made on

this exhibit that duplicated comments

made on the proposed contract with

respect to leasehold surrender interest

provisions and related matters.

These comments are responded to

under the leasehold surrender interest

provisions. In addition, Exhibit H has

been changed in the final contract to

reflect the changes made to the

leasehold surrender interest provisions

of the final contract and regulations.

A comment suggested that there is no

definition of repair and maintenance

projects. Further definitions have been

included in the final exhibit in this

connection.

A comment suggested that the

identification of individuals by function

should permit an individual to perform

more than one function. NPS considers

that this ability is implicit in the terms

of the Exhibit.

A comment suggested that the two

separate plans should be combined.

NPS disagrees. There are clear

distinctions between the plans.

A comment suggested that the

requirements for identification of

projects is vague and subjective. The

language has been changed in the final

contract to make it more specific.

A comment suggested that the

procedures for conferences and review

are unduly burdensome. NPS does not

believe this to be the case, at least in the

circumstances of construction in areas

of the national park system. The

comment suggested that the complete

procedures only be applicable to

construction projects. NPS disagrees.

Repair and maintenance projects may

have the same impacts as construction

projects.

A comment suggested that wording

should be added providing

compensation to the concessioner if a

project is not permitted to proceed. NPS

does not consider this appropriate.

Concessioners are aware that a number

of legal and policy considerations must

be dealt with before any binding

commitment to permit construction on

park lands may be made. The risk that

proposed construction or repair and

maintenance projects may not be

approved is a cost of doing business as

a concessioner.

A comment suggested that the terms

regarding total project cost and total

project price do not define what costs

and expenses are included. This would

be difficult and non-productive in a

generic document such as Exhibit H.

The expenses and costs associated with

projects will be identified on a case by

case, subject to the limitations of

leasehold surrender interest cost as

described in Exhibit A to the contract.

A comment suggested that the exhibit

provide for a simplified process in

emergency situations. No change has

been made but the Superintendent

would have such authority in

emergency situations.

Suggestions for Additional Provisions

Several commenters requested that

additional provisions not mentioned in

the above discussion be included in

concession contracts.

A commenter suggested that a dispute

resolution clause be included in the

contract. NPS does not consider this

appropriate in light of the several

arbitration requirements of the contract.

In circumstances where a dispute is not

subject to arbitration, the matter is

subject to resolution under applicable

legal procedures.

A commenter also suggested that the

contract contain a clause that permits

the parties to agree to alternative

dispute resolution procedures by

mutual agreement. NPS considers that

this ability exists under the terms of the

26062 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

contract as drafted and general contract

law.

A commenter suggested that the

concession contract contain an

exclusivity clause. NPS disagrees for the

reasons discussed in response to

comments on the amendment to 36 CFR

part 51.

A commenter suggested that

performance standards should be

contained in the contract or in an

exhibit. NPS is considering the

possibility of adding additional

performance measures to concession

contracts. For the present, however,

NPS considers that the standard

contract and its exhibits, particularly

the operating and maintenance plans,

are adequate for this purpose. NPS also

notes that it has previously published

for public comment its concessioner

evaluation program currently in place.

A commenter suggested that the

contract include as an exhibit a standard

document equivalent to a nondisturbance and attornment agreement.

NPS disagrees that such a document

should be included as part of the

standard concession contract in light of

the greatly varying circumstances of

concession contracts with respect to the

scopes of activities.

Several commenters suggested

including a provision referring to the

preferential right to renewal of certain

concession contracts that NPS is to grant

to some concessioners under certain

conditions pursuant to the terms of

section 403(7) of the 1998 Act. NPS

considers, however, that inclusion of a

contractual provision referring to a

possible preferential right to renewal

under the terms of the 1998 Act would

only create confusion as it is impossible

to know, upon execution of any

particular concession contract, whether

the contract will be renewed at all or, if

renewed, whether NPS is to give a

preferential right of renewal to the

concessioner under the terms of the

1998 Act in light of the conditions

applicable to the exercise of such

preference.

A commenter, in response to the

notice regarding the revised section 6

and exhibits, requested that the

standard concession contract be

republished for further public comment.

NPS does not believe this to be in the

public interest for the reasons discussed

in the preamble to the final regulations

(which are equally applicable to the

standard contract).

Based on the foregoing, NPS adopts

the following standard form concession

contract for use in its concession

management program, with the

understanding that it is only an internal

guideline. The Director, in his

discretion, may utilize any form of

concession contract he/she may choose

consistent with the requirements of the

1998 Act and 36 CFR part 51.

UNITED STATES DEPARTMENT OF THE

INTERIOR

NATIONAL PARK SERVICE

lllllllllllllllllllll

[Name of Area]

lllllllllllllllllllll

[Site]

lllllllllllllllllllll

[Type of Service]

CONCESSION CONTRACT NO._____

lllllllllllllllllllll

[Name of Concessioner]

lllllllllllllllllllll

[Address, including email address and phone

number]

Doing Business As

Covering the Period

through____ lllllllllllllll

Concession Contract

Table of Contents

Identification of the Parties

Sec. 1. Term of Contract

Sec. 2. Definitions

Sec. 3. Services and Operations

A. Required and Authorized Visitor

Services

B. Operation and Quality of Operation

C. Operating Plan

D. Merchandise and Services

E. Rates

F. Impartiality as to Rates and Services

Sec. 4. Concessioner Personnel

A. Employees

B. Employee Housing and Recreation

Sec. 5. Legal, Regulatory, and Policy

Compliance

A. Legal, Regulatory, and Policy

Compliance

B. Notice

C. How and Where to Send Notice

Sec. 6. Environmental and Cultural

Protection

A. 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

A. Concessioner Obligations

B. Director Review of Content

Sec. 8. Concession Facilities Used in

Operation by Concessioner

A. Assignment of Concession Facilities

B. Concession Facilities Withdrawals

C. Effect of Withdrawal

D. Right of Entry

E. Personal Property

F. Condition of Concession Facilities

G. Utilities Provided by the Director

H. Utilities Not Provided by the Director

Sec. 9. Construction or Installation of Real

Property Improvements

A. Construction of Real Property

Improvements

B. Removal of Real Property Improvements

C. Leasehold Surrender Interest

D. Concession Facilities Improvement

Program

Sec. 10. Maintenance

A. Maintenance Obligation

B. Maintenance Plan

C. Repair and Maintenance Reserve

Sec. 11. Fees

A. Franchise Fee

B. Payments Due

C. Interest

D. Adjustment of Franchise Fee

Sec. 12. Indemnification and Insurance

A. Indemnification

B. Insurance in General

C. Commercial Public Liability

D. Property Insurance

Sec. 13 Bonds and Liens

A. Bonds

B. Lien

Sec. 14. Accounting Records and Reports

A. Accounting System

B. Annual Financial Report

C. Other Financial Reports

Sec. 15. Other Reporting Requirements

A. Insurance Certification

B. Environmental Reporting

C. Miscellaneous Reports and Data

Sec. 16. Suspension, Termination, or

Expiration

A. Suspension

B. Termination

C. Notice of Bankruptcy or Insolvency

D. Requirements in the Event of

Termination or Expiration

Sec. 17. Compensation

A. Just Compensation

B. Compensation for Contract Expiration or

Termination

C. Procedures for Establishing the Value of

a Leasehold Surrender Interest

D. Compensation for Personal Property

Sec. 18. Assignment, Sale or Encumbrance of

Interests

Sec. 19. General Provisions

Exhibits

Exhibit A: Leasehold Surrender Interest

Exhibit B: Operating Plan

Exhibit C: Nondiscrimination.

Exhibit D: Assigned Land, Real Property

Improvements

Exhibit E: Assigned Government Personal

Property

Exhibit F: Concessioner Construction, Major

Rehabilitation, and Repair and

Maintenance Project Procedures

Exhibit G: Leasehold Surrender Interest

Exhibit H: Maintenance Plan

Exhibit I: 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 l Region, (hereinafter referred to

as the ‘‘Director’’), and

llllllll, a corporation

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26063

organized and existing under the laws of

the State of lllll (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 l Region, hereinafter referred to

as the ‘‘Director’’, and llllllll

a partnership organized under the laws

of the State of lllll, 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 l

Region, hereinafter referred to as the

‘‘Director,’’ and, llllllll, an

individual of, doing business as

llllllll, 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. lll

(‘‘CONTRACT’’) shall be effective as of

lllll, and shall be for the term of

lll (l) years until its expiration on

lllll, 20 ll [if the Concessioner

satisfactorily completes the Concession

Facilities Improvement Program

described in Section 9(e) of this

CONTRACT. If the Concessioner fails to

complete this program to the

satisfaction of the Director within the

time specified, then this CONTRACT

shall be for the term of lll (l) years

until its expiration on llllllll.

The Director may extend this shortened

term (but not beyond the original date

of expiration of this CONTRACT) in

circumstances where the Director

determines that the delay resulted from

events beyond the control of the

Concessioner.]

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) ‘‘Capital Improvement’’ shall have

the meaning set forth in Exhibit A to

this CONTRACT.

(e) ‘‘Concession Facilities’’ shall mean

all Area lands assigned to the

Concessioner under this CONTRACT

and all real property improvements

assigned to or constructed by the

Concessioner under this CONTRACT.

The United States retains title and

ownership to all Concession Facilities.

(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; and

(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

26064 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

Concessioner without allowances,

exclusions, or deductions of any kind or

nature.

(k) ‘‘Leasehold Surrender Interest’’

shall have the meaning set forth in

Exhibit A to this CONTRACT.

(l) ‘‘Leasehold Surrender Interest

Value’’ or the ‘‘value’’ of a Leasehold

Surrender Interest shall have the

meaning set forth in Exhibit A to this

CONTRACT.

(m) ‘‘Major Rehabilitation’’ shall have

the meaning set forth in Exhibit A to

this CONTRACT.

(n) ‘‘Possessory Interest’’ shall have

the meaning set forth in Exhibit A to

this CONTRACT.

(o) ‘‘Real Property Improvements’’

shall have the meaning set forth in

Exhibit A to this CONTRACT.

(p) ‘‘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.

(q) ‘‘Superintendent’’ means the

manager of the Area.

(r) ‘‘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

under the terms of this CONTRACT is

non-exclusive.

(c) Operating Plan

The Director, acting through the

Superintendent, shall establish and

revise, as necessary, specific

requirements for the operations of the

Concessioner under this CONTRACT in

the form of an Operating Plan

(including, without limitation, a risk

management program, that must be

adhered to by the Concessioner). The

initial Operating Plan is attached to this

CONTRACT as Exhibit B. 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) 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

by the Director. Complimentary or

reduced rates and charges shall

otherwise not be provided to Federal

employees by the Concessioner except

to the extent that they are equally

available to the general public.

Sec. 4. Concessioner Personnel

(a) Employees

(1) The Concessioner shall provide all

personnel necessary to provide the

visitor services required and authorized

by this CONTRACT.

(2) The Concessioner shall comply

with all Applicable Laws relating to

employment and employment

conditions, including, without

limitation, those set forth in Exhibit C.

(3) The Concessioner shall ensure that

its employees are hospitable and

exercise courtesy and consideration in

their relations with the public. The

Concessioner shall have its employees

who come in direct contact with the

public, so far as practicable, wear a

uniform or badge by which they may be

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26065

identified as the employees of the

Concessioner.

(4) The Concessioner shall establish

pre-employment screening, hiring,

training, employment, termination and

other policies and procedures for the

purpose of providing visitor services

through its employees in an efficient

and effective manner and for the

purpose of maintaining a healthful, law

abiding, and safe working environment

for its employees. The Concessioner

shall conduct appropriate background

reviews of applicants to whom an offer

for employment may be extended to

assure that they conform to the hiring

policies established by the

Concessioner.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(b) Employee Housing and Recreation

(1) If the Concessioner is required to

provide employee housing under this

CONTRACT, the Concessioner’s charges

to its employees for this housing must

be reasonable.

(2) If the visitor services required and/

or authorized under this CONTRACT

are located in a remote or isolated area,

the Concessioner shall provide

appropriate employee recreational

activities.

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

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

26066 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

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, at 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 byproduct.

(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 12 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 selfVerDate 27<APR>2000 13:58 May 03, 2000 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\04MYN2.SGM pfrm07 PsN: 04MYN2
Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26067

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 the

following Concession Facilities to the

Concessioner for the purposes of this

CONTRACT:

(i) certain parcels of Area land as

described in Exhibit D upon which,

among other matters, the Concessioner

may be authorized to construct real

property; and

(ii) certain real property

improvements described in Exhibit D in

existence as of the effective date of this

CONTRACT, as may be modified from

time to time to include additional real

property improvements completed in

accordance with the terms and

conditions of this CONTRACT.

(2) The Director shall from time to

time amend Exhibit D to reflect changes

in Concession Facilities assigned to the

Concessioner, including, without

limitation, amending Exhibit D to reflect

the addition of real property

improvements completed in accordance

with the terms and conditions of this

CONTRACT and to reflect the

withdrawal of concession facilities as

set forth below.

(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 16. The

Concessioner will be compensated

pursuant to Section 17 for the value of

any Leasehold Surrender Interest it may

have, if any, in permanently withdrawn

Concession Facilities. No other

compensation is due the Concessioner

in these circumstances.

(d) Right of Entry

The Director shall have the right at

any time to enter upon or into the

Concession Facilities assigned to the

Concessioner under this CONTRACT for

any purpose he may deem necessary for

the administration of the Area.

(e) Personal Property

(1) Personal Property Provided by the

Concessioner. The Concessioner shall

provide all personal property, including

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 E to

the Concessioner as of the effective date

of this CONTRACT. This Exhibit E 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.’’

26068 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

(g) Utilities Provided by the Director

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.

(h) Utilities Not Provided by the Director

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 or shall install the utilities

within the Area with the written

permission of the Director, subject to the

following conditions:

(1) Any water rights deemed

necessary by the Concessioner for use of

water on Area or other federal lands

must be acquired at the Concessioner’s

expense in accordance with applicable

State procedures and law. Upon

expiration or termination of this

CONTRACT for any reason, the

Concessioner must assign these water

rights to the United States without

compensation, and these water rights

will become the property of the United

States;

(2) If requested by the Director, the

Concessioner must provide to the

Director any utility service provided by

the Concessioner under this section to

such extent as will not unreasonably

restrict anticipated use by the

Concessioner. Unless otherwise agreed

by the Concessioner and the Director in

writing, the rate per unit charged the

Director for such service shall be

approximately the average cost per unit

of providing such service; and

(3) All appliances and machinery to

be used in connection with the

privileges granted in this subsection, as

well as the plans for location and

installation of such appliances and

machinery, shall first be approved by

the Director.

Sec. 9. Construction or Installation of

Real Property Improvements

(a) Construction of Real Property

Improvements

The Concessioner may construct or

install upon lands assigned to the

Concessioner under this CONTRACT

only those real property improvements

that are determined by the Director to be

necessary and appropriate for the

conduct by the Concessioner of the

visitor services required and/or

authorized under this CONTRACT.

Construction or installation of real

property improvements may occur only

after the written approval by the

Director of their location, plans, and

specifications. The form and content of

the application and the procedures for

such approvals, as may be modified by

the Director from time to time, are set

forth in Exhibit F. All real property

improvements constructed or installed

by the Concessioner will immediately

become the property of the United

States and be considered Concession

Facilities.

(b) Removal of Real Property

Improvements

(1) The Concessioner may not remove,

dismantle, or demolish real property

improvements in the Area without the

prior approval of the Director.

(2) Any salvage resulting from the

authorized removal, severance or

demolition of a real property

improvement within the Area shall be

the property of the United States.

(3) In the event that an assigned real

property improvement is removed,

abandoned, demolished, or substantially

destroyed and no other improvement is

constructed on the site, the

Concessioner, at its expense, shall

promptly, upon the request of the

Director, restore the site as nearly as

practicable to its original condition.

(c) Leasehold Surrender Interest

(1) This CONTRACT hereby provides

the Concessioner, subject to all

applicable definitions, requirements and

limitations of this CONTRACT and

Exhibit A, a Leasehold Surrender

Interest in Capital Improvements

constructed by the Concessioner under

the terms of this CONTRACT, including,

but not limited to, those Capital

Improvements constructed as part of the

Concession Facilities Improvement

Program and those Capital

Improvements which result from the

Major Rehabilitation of an existing real

property improvement. Upon

completion of a Major Rehabilitation by

the Concessioner, an existing real

property improvement assigned to the

Concessioner in which the Concessioner

had no Leasehold Surrender Interest

prior to the Major Rehabilitation shall

be considered as a Capital Improvement

for all purposes of this CONTRACT.

(2) This CONTRACT may provide the

Concessioner a Leasehold Surrender

Interest in real property improvements

resulting from possessory interest

obtained under the terms of a

possessory interest concession contract.

Exhibit G describes the real property

improvements, if any, in which the

Concessioner has such a Leasehold

Surrender Interest and states the value

of this Leasehold Surrender Interest as

of the effective date of this CONTRACT.

(3) The Concessioner shall not obtain

Leasehold Surrender Interest under this

CONTRACT except as may be provided

in Exhibit A and Exhibit F. Among other

matters, no Leasehold Surrender Interest

shall be obtained as a result of

expenditures from the Repair and

Maintenance Reserve described in this

CONTRACT, and this CONTRACT does

not provide a Leasehold Surrender

Interest as a result of expenditures for

repair and maintenance of Concession

Facilities of any nature.

(d) Concession Facilities Improvement

Program

(1) The Concessioner shall undertake

and complete an improvement program

(hereinafter ‘‘Concession Facilities

Improvement Program’’) costing not less

than $llll as adjusted for each

project to reflect par value in the year

of actual construction in accordance

with the appropriate indexes of the

Department of Labor’s CPI–U Index, as

published by the Department of Labor.

(2) The Concession Facilities

Improvement Program shall include:

[Provide detailed description of the

Concession Facilities Improvement

Program.]

(3) The Concessioner shall commence

construction under the Concession

Facilities Improvement Program on or

before llll in a manner that

demonstrates to the satisfaction of the

Director that the Concessioner is in good

faith carrying the Concession Facilities

Improvement Program forward

reasonably under the circumstances. No

construction may begin until the

Concessioner receives written approval

from the Director of plans and

specifications in accordance with

Exhibit F. During the period of

construction, the Concessioner shall

provide the Director with such evidence

or documentation, as may be

satisfactory to the Director, to

demonstrate that the Concession

Facilities Improvement Program duly is

being carried forward.

(4) The Concessioner shall complete

and have the real property

improvements available for public use

on or before llll. The Director may

extend this date in circumstances where

the Director determines that the delay

resulted from events beyond the control

of the Concessioner.

Sec. 10. Maintenance

(a) Maintenance Obligation

The Concessioner shall be solely

responsible for maintenance, repairs,

housekeeping, and groundskeeping for

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26069

all Concession Facilities to the

satisfaction of the Director.

(b) Maintenance Plan

For these purposes, the Director,

acting through the Superintendent, shall

undertake appropriate inspections, and

shall establish and revise, as necessary,

a Maintenance Plan consisting of

specific maintenance requirements

which shall be adhered to by the

Concessioner. The initial Maintenance

Plan is set forth in Exhibit H. 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.

(c) Repair and Maintenance Reserve

[No Repair and Maintenance Reserve

is included in this CONTRACT.] OR

(1) The Concessioner shall establish

and manage a Repair and Maintenance

Reserve. The funds in this Reserve shall

be used to carry out, on a project basis

in accordance with Exhibits F and H,

repair and maintenance of Concession

Facilities that are non-recurring within

a seven-year time frame. Such projects

may include repair or replacement of

foundations, building frames, window

frames, sheathing, subfloors, drainage,

rehabilitation of building systems such

as electrical, plumbing, built-in heating

and air conditioning, roof replacement

and similar projects. Projects will be

carried out by the Concessioner as the

Director shall direct in writing in

advance of any expenditure being made

and in accordance with project

proposals approved by the Director. No

projects may be commenced until the

Concessioner receives written approval

from the Director.

(2) Projects paid for with funds from

the Repair and Maintenance Reserve

will not include routine, operational

maintenance of facilities or

housekeeping and groundskeeping

activities. Nothing in this section shall

lessen the responsibility of the

Concessioner to carry out the

maintenance and repair of Concession

Facilities or housekeeping and

groundskeeping responsibilities as

required by this CONTRACT from

Concessioner funds exclusive of the

funds contained in the Repair and

Maintenance Reserve.

(3) The Concessioner shall establish

within its accounting system a Repair

and Maintenance Reserve. The

Concessioner shall debit to this Reserve,

within fifteen (15) days after the last day

of each month that the Concessioner

operates a sum equal to: lll percent

(lll%) of the Concessioner’s gross

receipts for the previous month. If the

Concessioner fails to make timely debits

to the Repair and Maintenance Reserve,

the Director may terminate this

CONTRACT for default or may require

the Concessioner to post a bond in an

amount equal to the estimated annual

Repair and Maintenance Reserve

allocation, based on the preceding year’s

gross receipts.

(4) The balance in the Repair and

Maintenance Reserve shall be available

for projects in accordance with the

Reserve’s purpose. For all expenditures

made for each project from the Repair

and Maintenance Reserve, the

Concessioner shall maintain auditable

records including invoices, billings,

canceled checks, and other

documentation satisfactory to the

Director. Failure to expend Repair and

Maintenance Reserve Funds when

directed by the Director shall be

considered as a material breach of this

CONTRACT for which the Director may

seek monetary damages and other legal

relief, including, without limitation,

termination of this CONTRACT.

(5) Repair and Maintenance Reserve

funds shall not be used for a major

rehabilitation as defined in this

CONTRACT. The Concessioner shall

obtain no ownership, Leasehold

Surrender Interest, or other

compensable interest as a consequence

of the expenditure of Repair and

Maintenance Reserve funds.

(6) Any Repair and Maintenance

Reserve funds not duly expended by the

Concessioner as of the termination or

expiration of this CONTRACT shall be

retained by the Concessioner (subject to

otherwise applicable terms and

conditions of this CONTRACT).

Sec. 11. Fees

(a) Franchise Fee

(1) For the term of this CONTRACT,

the Concessioner shall pay to the

Director for the privileges granted under

this CONTRACT a franchise fee equal to

lll percent (lll %) 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

(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

26070 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

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. 12. Indemnification and Insurance

(a) Indemnification

The Concessioner agrees to assume

liability for and does hereby agree to

save, hold harmless, protect, defend and

indemnify the United States of America,

its agents and employees from and

against any and all liabilities,

obligations, losses, damages or

judgments (including without limitation

penalties and fines), claims, actions,

suits, costs and expenses (including

without limitation attorneys fees and

experts’ fees) of any kind and nature

whatsoever on account of fire or other

peril, bodily injury, death or property

damage, or claims for bodily injury,

death or property damage of any nature

whatsoever, and by whomsoever made,

in any way 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 I. 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 I.

Furthermore, the commercial general

liability package shall provide no less

than the coverages and limits described

in Exhibit I.

(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 I 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.

(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

I 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 I.

(3) Commercial property insurance

shall provide for the Concessioner and

the United States of America to be

named insured as their interests may

appear.

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26071

(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 13 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 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 I.

Sec. 13. 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 and any

Leasehold Surrender Interest of the

Concessioner.

Sec. 14. Accounting Records and

Reports

(a) Accounting System

(1) The Concessioner shall maintain

an accounting system under which its

accounts can be readily identified with

its system of accounts classification.

Such accounting system shall be

capable of providing the information

required by this CONTRACT, including

but not limited to the Concessioner’s

repair and maintenance obligations. The

Concessioner’s system of accounts

classification shall be directly related to

the Concessioner Annual Financial

Report Form issued by the Director.

(2) If the Concessioner’s annual gross

receipts are $250,000 or more, the

Concessioner must use the accrual

accounting method.

(3) In computing net profits for any

purposes of this CONTRACT, the

Concessioner shall keep its 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. The balance sheet shall be

accompanied by a schedule that

identifies and provides details for all

capital improvements in which the

Concessioner claims a Leasehold

Surrender Interest. The schedule must

describe these capital improvements in

detail showing for each such capital

improvement the date acquired,

constructed or installed.

(2) Statements of Reserve Activity. [No

Repair and Maintenance Reserve is

included in this CONTRACT.] OR

[The Concessioner shall submit

annually, not later than one hundred

twenty (120) days after the end of the

Concessioner’s accounting year, a

statement reflecting total activity in the

Maintenance Reserve for the preceding

accounting year. The statement must

reflect monthly inflows and outflows on

a project by project basis.]

Sec. 15. Other Reporting Requirements

The following describes certain other

reports required under this CONTRACT:

(a) Insurance Certification

As specified in Section 12, 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.

26072 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

Sec. 16. 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, the requirement to duly

expend funds from the repair and

maintenance reserve 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

16(a).

(4) The Director may terminate this

CONTRACT upon the filing or the

execution of a petition in bankruptcy by

or against the Concessioner, a petition

seeking relief of the same or different

kind under any provision of the

Bankruptcy Act or its successor, an

assignment by the Concessioner for the

benefit of creditors, a petition or other

proceeding against the Concessioner for

the appointment of a trustee, receiver, or

liquidator, or, the taking by any person

or entity of the rights granted by this

CONTRACT or any part thereof upon

execution, attachment or other process

of law or equity. The Director may

terminate this CONTRACT if the

Director determines that the

Concessioner is unable to perform the

terms of CONTRACT due to bankruptcy

or insolvency.

(5) Termination of this CONTRACT

for any reason shall be by written notice

to the Concessioner.

(c) Notice of Bankruptcy or Insolvency

The Concessioner must give the

Director 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, the total

compensation due the Concessioner for

such termination or expiration shall be

as described in Section 17 of this

CONTRACT. No other compensation of

any nature shall be due the

Concessioner in the event of a

termination 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).

(3) To avoid interruption of services

to the public upon termination of this

CONTRACT for any reason, or upon its

expiration, the Concessioner, upon the

request of the Director, shall consent to

the use by another operator of the

Concessioner’s personal property,

excluding inventories if any, not

including current or intangible assets,

for a period of time not to exceed one

(1) year from the date of such

termination or expiration. The other

operator shall pay the Concessioner an

annual fee for use of such property,

prorated for the period of use, in the

amount of the annual depreciation of

such property, plus a return on the book

value of such property equal to the

prime lending rate, as published by the

Federal Reserve System Board of

Governors, effective on the date the

operator assumes managerial and

operational responsibilities. In such

circumstances, the method of

depreciation applied shall be either

straight line depreciation or

depreciation as shown on the

Concessioner’s Federal income tax

return, whichever is less. To avoid

interruption of services to the public

upon termination of this CONTRACT

for any reason or its expiration, the

Concessioner shall, if requested by the

Director, sell its existing inventory to

another operator at the purchase price

as shown on applicable invoices.

Sec. 17. Compensation

(a) Just Compensation

The compensation provided by this

Section shall constitute full and just

compensation to the Concessioner for

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26073

all losses and claims occasioned by the

circumstances described below.

(b) Compensation for CONTRACT

Expiration or Termination

If, for any reason, including

CONTRACT expiration or termination,

the Concessioner shall cease to be

authorized by the Director to conduct

operations under this CONTRACT, the

Concessioner shall convey to a person

designated by the Director (including

the Director if appropriate) any

Leasehold Surrender Interest it has

under the terms of this CONTRACT and

the Director shall, subject to the terms

and conditions of this CONTRACT,

assure that the Concessioner is paid the

Leasehold Surrender Interest Value.

(c) Procedures for Establishing the

Value of a Leasehold Surrender Interest

At any time during the term of this

CONTRACT, the Concessioner shall,

when requested by the Director, enter

into negotiations with the Director as to

the value of the Concessioner’s

Leasehold Surrender Interest under this

CONTRACT. In the event that such

negotiations fail to determine an agreed

upon value within a reasonable period

of time as determined by the Director,

the Director or the Concessioner may

initiate arbitration proceedings to

determine such value upon written

request to the other party. Such

arbitration proceedings shall be

conducted in accordance with the

arbitration procedures set forth in

Exhibit A. In these circumstances, the

Concessioner and the Director shall

each select an arbiter. The two arbiters,

within thirty (30) days of selection,

must agree to the selection of a third

arbiter to complete the arbitration panel

in accordance with Exhibit A. The

arbitration panel shall consider the

written submissions and any oral

presentations made by the Concessioner

and the Director and shall determine the

value of the Leasehold Surrender

Interest consistent with the terms of this

CONTRACT, including without

limitation Exhibit A. The arbitration

panel shall also provide a means to

calculate the change in the value of such

Leasehold Surrender Interest as may

occur for up to two (2) years from the

date of the initial determination. The

determination of the arbitration panel

shall be binding on the Director and the

Concessioner.

(d) Compensation for Personal Property

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. 18. 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, including, but not limited to,

Leasehold Surrender Interest 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. 19. General Provisions

(a) The Director and Comptroller

General of the United States, or any of

their duly authorized representatives,

shall have access to the records of the

Concessioner as provided by 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.

In Witness Whereof, the duly

authorized representatives of the parties

have executed this CONTRACT as of

thellllday of l l,ll.

26074 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

Concessioner

United States of America

BYlllll

(Title),

(Company Name).

BYlllll

Director,

National Park Service.

[Corporations]

ATTEST:

BY:lllll

TITLE:lllll

[Sole Proprietorship]

WITNESSES:

NAMElllll

ADDRESSllllll

TITLEllllll

NAMEllllll

ADDRESSlllll

TITLEllllll

[Partnership]

WITNESSES AS TO EACH:

[Concessioner]

NAMEllllll llllll

ADDRESS

(NAME)

NAMEllllll

ADDRESS llllll

NAME

Exhibit A

Leasehold Surrender Interest

This Exhibit A to this CONTRACT

establishes certain terms and conditions

of the CONTRACT regarding the nature,

scope and applicable conditions of

leasehold surrender interest. In event of

any inconsistency between this Exhibit

A and Exhibit F of this CONTRACT this

Exhibit A shall prevail.

Section 1. Definitions

‘‘Arbitration’’ means binding

arbitration conducted by an arbitration

panel. All arbitration proceedings

conducted under the authority of this

Exhibit A will utilize the following

procedures unless otherwise agreed by

the Concessioner and the Director. One

member of the arbitration panel will be

selected by the Concessioner, one

member will be selected by the Director,

and the third (neutral) member will be

selected by the two party-appointed

members. The neutral arbiter must be a

licensed real estate appraiser. The

expenses of the neutral arbiter and other

associated common costs of the

arbitration will be borne equally by the

Concessioner and the Director. The

arbitration panel will adopt procedures

that treat each party equally, give each

party the opportunity to be heard, and

give each party a fair opportunity to

present its case. Determinations must be

made by a majority of the members of

the panel and will be binding on the

Concessioner and the Director.

A‘‘capital improvement’’ is a

structure, fixture, or non-removable

equipment provided by the

Concessioner pursuant to the terms of

this CONTRACT and located on lands of

the United States within the area. A

capital improvement does not include

any interest in land. Additionally, a

capital improvement does not include

any interest in personal property of any

kind including, but not limited to,

vehicles, boats, barges, trailers, or other

objects, regardless of size, unless an

item of personal property becomes a

fixture as defined in this Exhibit A.

‘‘Construction cost’’ of a capital

improvement means the total of the

incurred eligible direct and indirect

costs necessary for constructing or

installing the capital improvement that

are capitalized by the concessioner in

accordance with Generally Accepted

Accounting Principals (GAAP).

‘‘Consumer Price Index’’ means the

national ‘‘Consumer Price Index—All

Urban Consumers’’ published by the

Department of Labor. If this index

ceases to be published, the Director will

designate another regularly published

cost-of-living index approximating the

national Consumer Price Index.

‘‘Depreciation’’ means the loss of

value in a capital improvement as

evidenced by the condition and

prospective serviceability of the capital

improvement in comparison with a new

unit of like kind.

‘‘Eligible direct costs’’ means the sum

of all incurred capitalized costs (in

amounts no higher than those prevailing

in the locality of the project), that are

necessary both for the construction of a

capital improvement and are typically

elements of a construction contract.

Eligible direct costs may include,

without limitation, the costs of (if

capitalized in accordance with GAAP

and in amounts no higher than those

prevailing in the locality of the project):

building permits; materials, products

and equipment used in construction;

labor used in construction; security

during construction; contractor’s shack

and temporary fencing; material storage

facilities; power line installation and

utility costs during construction;

performance bonds; and contractor’s

(and subcontractor’s) profit and

overhead (including job supervision,

worker’s compensation insurance and

fire, liability, and unemployment

insurance).

‘‘Eligible indirect costs’’ means,

except as provided in the last sentence

of this definition, the sum of all other

incurred capitalized costs (in amounts

no higher than those prevailing in the

locality of the project) necessary for the

construction of a capital improvement.

Eligible indirect costs may include,

without limitation, the costs of (if

capitalized in accordance with GAAP

and in amounts no higher than those

prevailing in the locality of the project):

architectural and engineering fees for

plans, plan checks; surveys to establish

building lines and grades;

environmental studies; if the project is

financed, the points, fees or service

charges and interest on construction

loans; all risk insurance expenses and

ad valorem taxes during construction.

The actual capitalized administrative

expenses (in amounts no higher than

those prevailing in the locality of the

project did) of the Concessioner for

direct, on-site construction inspection

are eligible indirect costs. Other

administrative expenses of the

Concessioner are not eligible indirect

costs.

‘‘Fixtures and non-removable

equipment’’ are manufactured items of

personal property of independent form

and utility necessary for the basic

functioning of a structure that are

affixed to and considered to be part of

the structure such that title is with the

Director as real property once installed.

Fixtures and non-removable equipment

do not include building materials (e.g.,

wallboard, flooring, concrete, cinder

blocks, steel beams, studs, window

frames, windows, rafters, roofing,

framing, siding, lumber, insulation,

wallpaper, paint, etc.). Because of their

special circumstances, floating docks

(but not other types of floating property)

that may be constructed by the

Concessioner pursuant to the terms of

this CONTRACT are considered to be

non-removable equipment for leasehold

surrender interest purposes only. Except

as otherwise indicated in Exhibit A, the

term ‘‘fixture’’ includes the term ‘‘nonremovable equipment.’’

‘‘Leasehold surrender interest’’ solely

means a right to payment in accordance

with this CONTRACT for related capital

improvements that the Concessioner

makes or provides within the area on

lands owned by the United States

pursuant to the terms and conditions of

this CONTRACT. The existence of a

leasehold surrender interest does not

give the Concessioner, or any other

person, any right to conduct business in

a park area, to utilize the related capital

improvements, or to prevent the

Director or another person from

utilizing the related capital

improvements. The existence of a

leasehold surrender interest does not

include any interest in the land on

which the related capital improvements

are located.

‘‘Leasehold surrender interest value’’

means the amount of compensation the

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26075

Concessioner is entitled to be paid for

a leasehold surrender interest in capital

improvements in accordance with this

CONTRACT. The leasehold surrender

interest value in existing capital

improvements under the terms of this

CONTRACT is an amount equal to:

(1) The initial construction cost of the

related capital improvement;

(2) Adjusted by (increased or

decreased) the same percentage increase

or decrease as the percentage increase or

decrease in the Consumer Price Index

from the date the Director approves the

substantial completion of the

construction of the related capital

improvement to the date of payment of

the leasehold surrender interest value;

(3) Less depreciation of the related

capital improvement on the basis of its

condition as of the date of termination

or expiration of this CONTRACT, or, if

applicable, the date on which the

Concessioner ceases to utilize a related

capital improvement (e.g., where the

related capital improvement is taken out

of service by the Director pursuant to

the terms of this CONTRACT).

‘‘Major rehabilitation’’ means a

planned, comprehensive rehabilitation

of an existing structure that:

(1) The Director approves in advance

and determines is completed within 18

months from start of the rehabilitation

work (unless a longer period of time is

approved by the Director in special

circumstances); and

(2) The construction cost of which

exceeds fifty percent of the prerehabilitation value of the structure.

‘‘Pre-rehabilitation value’’ of an

existing structure means the

replacement cost of the structure less

depreciation.

‘‘Real property improvements’’ means

real property other than land, including,

but not limited to, capital

improvements.

‘‘Related capital improvement’’ or

‘‘related fixture’’ means a capital

improvement in which the Concessioner

has a leasehold surrender interest.

‘‘Replacement cost’’ means the

estimated cost to reconstruct, at current

prices, an existing structure with utility

equivalent to the existing structure,

using modern materials and current

standards, design and layout.

‘‘Structure’’ means a building, dock,

or similar edifice affixed to the land so

as to be part of the real estate. A

structure may include both constructed

infrastructure (e.g., water, power and

sewer lines) and constructed site

improvements (e.g., paved roads,

retaining walls, sidewalks, paved

driveways, paved parking areas) that are

permanently affixed to the land so as to

be part of the real estate and that are in

direct support of the use of a building,

dock, or similar edifice. Landscaping

that is integral to the construction of a

structure is considered as part of a

structure. Interior furnishings that are

not fixtures are not part of a structure.

‘‘Substantial completion of a capital

improvement’’ means the condition of a

capital improvement construction

project when the project is substantially

complete and ready for use and/or

occupancy.

Section 2. Obtaining a Leasehold

Surrender Interest

The Concessioner will obtain

leasehold surrender interest in capital

improvements constructed in

accordance with the terms and

conditions of this CONTRACT,

including, without limitation, the terms

and conditions of this Exhibit A to the

CONTRACT.

Section 3. Authorizing the Construction

of a Capital Improvement

The Director may only authorize or

require the Concessioner to construct

capital improvements on area lands in

accordance with the terms and

conditions of this CONTRACT and for

the conduct by the Concessioner of

visitor services, including, without

limitation, the construction of capital

improvements necessary for the conduct

of visitor services.

Section 4. Requirements for Beginning

To Construct a Capital Improvement

Before beginning to construct any

capital improvement, the Concessioner

must obtain written approval from the

Director in accordance with the terms of

this CONTRACT, including the terms

and conditions of this Exhibit A and

Exhibit F. The request for approval must

include appropriate plans and

specifications for the capital

improvement and any other information

that the Director may specify. The

request must also include an estimate of

the total construction cost of the capital

improvement. The estimate of the total

construction cost must specify all

elements of the cost in such detail as is

necessary to permit the Director to

determine that they are elements of

construction cost as defined in this

Exhibit. (The approval requirements of

this and other sections of this

CONTRACT also apply to any change

orders to a capital improvement project

and to any additions to a structure or

replacement of fixtures as described in

this CONTRACT.)

Section 5. Requirements After

Substantial Completion of a Capital

Improvement

Upon substantial completion of the

construction of a capital improvement

in which the Concessioner is to obtain

a leasehold surrender interest, the

Concessioner must provide the Director

a detailed construction report in

accordance with the terms and

conditions of this CONTRACT,

including without limitation Exhibit A

and Exhibit F. The construction report

must be supported by actual invoices of

the capital improvement’s construction

cost together with, if requested by the

Director, a written certification from a

certified public accountant. The

construction report must document, and

any requested certification by the

certified public accountant must certify,

that all components of the construction

cost were incurred and capitalized by

the Concessioner in accordance with

GAAP, and that all components are

eligible direct or indirect construction

costs as defined in this Exhibit. Invoices

for additional construction costs of

elements of the project that were not

completed as of the date of substantial

completion may subsequently be

submitted to the Director for inclusion

in the project’s construction cost.

Section 6. Determining Construction

Cost for Purposes of Leasehold

Surrender Interest Value

After receiving the detailed

construction report (and certification, if

requested), from the Concessioner, the

Director will review the report,

certification and other information as

appropriate to determine that the

reported construction cost is consistent

with the construction cost approved by

the Director in advance of the

construction and that all costs included

in the construction cost are eligible

direct or indirect costs as defined in this

Exhibit A. The construction cost

determined by the Director will be the

construction cost for purposes of the

leasehold surrender interest value in the

related capital improvement unless the

Concessioner requests arbitration of the

construction cost under Section 7 of this

Exhibit A. The Director may at any time

amend a construction cost

determination (subject to arbitration

under Section 7 of this Exhibit A) if the

Director determines that it was based on

false, misleading or incomplete

information.

Section 7. Arbitrating the Construction

Cost of a Capital Improvement

If the Concessioner requests

arbitration of the construction cost of a

26076 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

capital improvement determined by the

Director, the request must be made in

writing to the Director within 3 months

of the date of the Director’s

determination of construction cost

under Section 6 of this Exhibit A. If a

timely request is not made, the

Director’s determination of construction

cost under Section 6 shall be the final

determination of the construction cost.

The arbitration procedures are described

in Section 1 of this Exhibit A. The

decision of the arbitration panel as to

the construction cost of the capital

improvement will be binding on the

concessioner and the Director.

Section 8. Actions the Concessioner May

or Must Take Regarding Leasehold

Surrender Interest

The Concessioner:

(a) May encumber a leasehold

surrender interest in accordance with

the terms of this CONTRACT;

(b) Where applicable, must transfer its

leasehold surrender interest in

connection with any assignment,

termination or expiration of this

CONTRACT; and

(c) May waive or relinquish a

leasehold surrender interest.

Section 9. Extinguishment of a

Leasehold Surrender Interest

A leasehold surrender interest may

not be extinguished by the expiration or

termination of this CONTRACT and a

leasehold surrender interest may not be

taken for public use except on payment

of just compensation. Payment of

leasehold surrender interest value

pursuant to the terms of this

CONTRACT will constitute the payment

of just compensation for leasehold

surrender interest within the meaning of

this CONTRACT and for all other

purposes.

Section 10. Leasehold Surrender Interest

Under a New Concession Contract

If the Concessioner under this

CONTRACT is awarded a new

concession contract by the Director, and

the new concession contract continues a

leasehold surrender interest in related

capital improvements, then the

Concessioner’s leasehold surrender

interest value (established as of the date

of expiration or termination of this

CONTRACT) in the related capital

improvements will be continued as the

initial value of the Concessioner’s

leasehold surrender interest under the

terms of the new concession contract.

Section 11. Payment for Leasehold

Surrender Interest if the Concessioner is

not Awarded a New Concession

Contract

(a) If the Concessioner is not awarded

a new concession contract after

expiration or termination of this

CONTRACT, or, the Concessioner, prior

to such termination or expiration, ceases

to utilize under the terms of this

CONTRACT capital improvements in

which the Concessioner has a leasehold

surrender interest, the Concessioner will

be entitled to be paid its leasehold

surrender interest value in the related

capital improvements. The leasehold

surrender interest will not be transferred

until payment of the leasehold

surrender interest value. The date for

payment of the leasehold surrender

interest value, except in special

circumstances beyond the Director’s

control, will be the date of expiration or

termination of this CONTRACT, or the

date the Concessioner ceases to utilize

related capital improvements under the

terms of this CONTRACT. Depreciation

of the related capital improvements will

be established as of the date of

expiration or termination of this

CONTRACT, or, if applicable, the date

the Concessioner ceases to utilize the

capital improvements under the terms

this CONTRACT.

(b) In the event that extraordinary

circumstances beyond the control of the

Director prevent the Director from

making the leasehold surrender interest

value payment as of the date of

expiration or termination of this

CONTRACT, or, as of the date the

Concessioner ceases to utilize related

capital improvements under the terms

of this CONTRACT, the payment when

made will include interest on the

amount that was due on the date of

expiration or termination of this

CONTRACT or cessation of use for the

period after the payment was due until

payment is made (in addition to the

inclusion of a continuing Consumer

Price Index adjustment until the date

payment is made). The rate of interest

will be the applicable rate of interest

established by law for overdue

obligations of the United States. The

payment for a leasehold surrender

interest value will be made within one

year after the expiration or termination

of this CONTRACT or the cessation of

use of related capital improvements

under the terms of this CONTRACT.

Section 12. Process for Determining

Leasehold Surrender Interest Value

In the event that the Concessioner and

the Director cannot reach agreement as

to a leasehold surrender interest value

where required by the terms of this

CONTRACT, the leasehold surrender

interest value will be determined by

arbitration upon request of the Director

or the Concessioner. The arbitration

procedures are described in Section 1. A

prior decision as to the construction

cost of capital improvements made by

the Director or by an arbitration panel

in accordance with this Exhibit A are

final and not subject to further

arbitration.

Section 13. Payment of Leasehold

Surrender Interest by a New

Concessioner

A new concession contract awarded

to a new concessioner will require the

new concessioner to pay the

Concessioner its leasehold surrender

interest value in existing capital

improvements as determined under

Section 12.

Section 14. Obtaining Additional

Leasehold Surrender Interest by

Undertaking a Major Rehabilitation or

Adding to a Structure in Which the

Concessioner has a Leasehold Surrender

Interest

If the Concessioner, with the written

approval of the Director, undertakes a

major rehabilitation or adds a new

structure (e.g., a new wing to an existing

building or an extension of an existing

sidewalk) to an existing structure in

which the Concessioner has a leasehold

surrender interest, the Concessioner will

increase its leasehold surrender interest

in the related structure, effective as of

the date of substantial completion of the

major rehabilitation or new structure, by

the construction cost of the major

rehabilitation or new structure. The

Consumer Price Index adjustment for

leasehold surrender interest value

purposes will apply to the construction

cost as of the date of substantial

completion of the major rehabilitation

or new structure. Approvals for major

rehabilitations and additions to

structures are subject to the same

requirements and conditions applicable

to new construction as described in this

CONTRACT.

Section 15. Obtaining Additional

Leasehold Surrender Interest by

Replacing a Fixture in Which the

Concessioner has a Leasehold Surrender

Interest

If the Concessioner replaces an

existing fixture in which the

Concessioner has a leasehold surrender

interest with a new fixture, the

Concessioner will increase its leasehold

surrender interest by the amount of the

construction cost of the replacement

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26077

fixture less the construction cost of the

replaced fixture.

Section 16. Obtaining a Leasehold

Surrender Interest in Existing Real

Property Improvements in which no

Leasehold Surrender Interest Exists

(a) If the main body of this

CONTRACT requires the Concessioner

to replace fixtures in real property

improvements in which there is no

leasehold surrender interest (e.g.,

fixtures attached to an existing

government facility assigned by the

Director to the Concessioner), a

leasehold surrender interest will be

obtained by the Concessioner in such

replacement fixtures subject to the

approval and determination of

construction cost and other conditions

contained in CONTRACT.

(b) If the main body of this

CONTRACT requires the Concessioner

to undertake a major rehabilitation of a

structure in which there is no leasehold

surrender interest (e.g., a governmentconstructed facility assigned to the

Concessioner), upon substantial

completion of the major rehabilitation,

the Concessioner will obtain a leasehold

surrender interest in the structure. The

initial construction cost of this

leasehold surrender interest will be the

construction cost of the major

rehabilitation. Depreciation for purposes

of leasehold surrender interest value

will apply only to the rehabilitated

components of the related structure.

Section 17. No Leasehold Surrender

Interest Results from Repair and

Maintenance of Real Property

Improvements

The Concessioner will not obtain

initial or increased leasehold surrender

interest as a result of repair and

maintenance of real property

improvements unless a repair and

maintenance project is a major

rehabilitation.

Exhibit B

(Sample) Operating Plan

I. Introduction

This Operating Plan between llll

(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 C

Nondiscrimination

Section I: Requirements Relating to

Employment and Service to the Public

A. 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,

26078 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

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.

B. 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.

C. 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.

A. 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.

B. 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 D

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 llll, 20ll

By: llllll

Regional Director, llll Region

Exhibit E

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 llday of llll, 20

ll.

By:llllll

Regional Director,llRegion

Exhibit F

Concessioner Construction, Major

Rehabilitation, and Repair and

Maintenance Project Procedures

A. Introduction

This exhibit presents step-by-step

procedures for the administration of

Concessioner building projects

(construction, major rehabilitation, and

repair and maintenance projects) within

the park Area. Important terms are

defined first. Project planning and

design are presented second, followed

by guidelines for project supervision.

All projects undertaken by the

Concessioner require a coordinated

effort between the Concessioner and the

Superintendent. This exhibit applies to

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26079

the building of new structures or

facilities, major rehabilitations, and the

repair and maintenance (‘‘R&M

projects’’) of existing Concession

Facilities that change the nature,

appearance or value of existing

Concession Facilities. Rehabilitation

projects that are not major

rehabilitations as defined in the

Contract are considered as R&M

projects. Facility operations, custodial

and preventive maintenance and

maintenance needed for facility

operations are not considered R&M

projects subject to these procedures.

Repair and maintenance is also not to be

considered as a project subject to these

procedures when the activity does not

change the nature, appearance or value

of existing Concession Facilities. All

projects must be proposed, approved,

and accomplished under these

procedures. In the event of any

inconsistency between this exhibit and

the main body of this CONTRACT and

Exhibit A, the main body of the

CONTRACT and Exhibit A will prevail.

In accordance with the Contract, only

certain new construction and major

rehabilitation projects may qualify for

leasehold surrender interest (LSI).

Following these administrative

procedures for both LSI and non-LSI

projects will enable NPS to approve LSI,

as well as to ensure that all

requirements of law and NPS policy are

undertaken with respect to any project.

In addition, these procedures will

enable the appraisal of LSI to occur in

an orderly way. The documentation

collected and organized by the use of

these guidelines will provide a record of

decision or ‘‘paper trail’’ of project

development and implementation that

will assist the park and concessioner in

future planning and facility appraisal.

All project activities shall be directed

and managed as presented in the

‘‘Annual Construction and Repair and

Maintenance Management Plan’’ (CMP).

In addition to these activities, the CMP

is also to present scheduled project

development and implementation, as

presented below under Item C, Project

Planning and Design, paragraph 1.

Individual projects included in the CMP

will be authorized by NPS through an

approved Project Statement (PS).

Projects may be required to be

reviewed under the National

Environmental Policy Act (NEPA) of

1969, as amended. Projects within

historic and culturally significant areas

may require certain building

management methods established under

the National Historic Preservation Act of

1966, as amended. All construction

shall comply with codes and building

requirements adopted by NPS,

including without limitation and where

applicable, the most recent International

Building Code (IBC), National Fire

Protection Association (NFPA) codes,

the Americans with Disabilities Act

(ADA) requirements, and NPS

management policies.

The Concessioner is responsible for

all aspects of project development and

implementation. The role of the NPS is

to provide direction, authorization and

oversight. The Concessioner and the

Park staff must work closely together to

successfully complete construction

projects in a manner that achieves the

goals and objectives of the park Area

and the NPS.

B. Definition of Terms

‘‘Annual Construction and Repair and

Maintenance Management Plan’’ (CMP):

A written document presenting all

construction, major rehabilitation and

R&M projects to be undertaken by the

Concessioner during the following

calendar year after the final submittal

date.

‘‘Approved Project Documents’’:

Project drawings and specifications

approved by the Park Superintendent

and used by the Concessioner to direct

a contractor in the type, size and quality

of projects.

‘‘Change Order’’: A written agreement

between the ‘‘Construction Supervisor’’

and the Contractor or Consultant that

changes the contract documents or

scope of project work as agreed upon

contractually.

‘‘Construction’’: The removal or

assembly of a building, road, utility or

any other facility part or material that

changes the nature, appearance, or value

of that facility.

‘‘Construction Supervisor’’: A

Concessioner employee designated to

administer and coordinate day-to-day

projects representing the interests of the

Concessioner and NPS and assuring

quality work is performed that meets the

design and specifications of the project.

This person must have the authority to

direct the contractor in any way that

may change the contractual agreement

between the Concessioner and the

contractor.

‘‘Conventional Design-Bid-Build

Methods’’: Construction developed and

implemented under several separate

agreements managed and coordinated

directly by the Concessioner.

‘‘Contact Person’’: A Concessioner

employee designated as the person to

contact with regard to a specific matter,

concern, or issue.

‘‘Facilitator’’: A Concessioner

employee designated to have the role of

providing structure and agendas for

meetings with NPS and who records

meeting discussions and outcomes.

‘‘Guaranteed Maximum Price DesignBuild Construction Methods’’: An

industry recognized type of construction

where project consultants and

contractors form an agreement to work

as one entity providing facility

construction in response to a developed

request for proposal issued by the

Concessioner. (Reference: Design Build

Institute of America).

‘‘Licensed Contractor’’: An entity

performing construction certified or

licensed by the State to perform

construction services within that State.

‘‘Major Rehabilitation’’: (Defined in

the CONTRACT).

‘‘Project Coordinator’’: A Concession

employee vested with the authority to

direct consultants and contractors in the

expenditure of construction and R&M

funds.

‘‘Project Statement’’ (PS): An

agreement between NPS and the

Concessioner approved by the Park

Superintendent that authorizes the

development and implementation of

individual projects identified in a CMP.

‘‘Registered Technical Professionals’’:

Architects, engineers, or any subject

area expert either certified or licensed

by the State to perform specialized

services or certified by a widely

recognized industry regulator held

responsible for quality and standard

application of technical subject matter.

‘‘Substantially Complete’’: (Defined in

the CONTRACT).

‘‘Total Project Cost’’: The total of all

actual project expenditures (invoiced

and paid) for completion of a project.

‘‘Total Project Price’’: The total of all

estimated project expenditures for

completion of a project.

C. Project Planning and Design

(1) Submit an Annual Construction and

Repair and Maintenance Plan (CMP)

Before approval to proceed with any

project is granted by NPS, the

Concessioner must submit a CMP for

implementation the following year.

Some projects may require several years

of planning and design before

construction. The purpose of the plan is

to identify the need and tentative scope

of projects a complete year in advance

of actual work to allow adequate time to

prepare for project commencement. The

CMP should include any intended

projects. Projects shown in the plan

must include at least a project title;

project concept description; a brief

statement of justification; and

anticipated NEPA and Section 106

planning and compliance established in

collaboration with NPS staff.

26080 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

(2) Notify NPS of Intent-to-Proceed

The Concessioner shall formally

notify the Park Superintendent in

writing of intent to proceed with any

facility planning, design and/or projects.

The project must be identified in the

CMP the calendar year before to assist

the NPS in sequencing and scheduling

necessary support staff. The time of

notification shall be sufficiently in

advance of any Concessioner budget

formulation to assure the requirements

of the Park Superintendent are included

in the project scope before the project is

funded.

(3) Identify a Project Coordinator

The Concessioner project coordinator

must be identified for each project. This

person should have the authority to

obligate project expenditures and hire

and direct consultants and contractors,

and concessioner support staff.

(4) Prepare a Proposed Project Statement

(PS)

Arrange and facilitate a project

planning conference with NPS staff and

prepare a proposed PS to be submitted

to the Park Superintendent for review.

The conference should be performed on

the proposed project site, if needed.

(a) Conference goal and product. The

primary goal of the conference is to

clearly identify the project concepts and

scope at sufficient detail to carry the

project through to completion without

significant deviation from an approved

PS. The product of the conference

should be an approved PS prepared by

the Concessioner resulting from

collaboration between the Concessioner

and the Park Superintendent.

(b) Project Statement Content. The PS

shall include the following as a

minimum: Project description;

justification; scope of work, including

NEPA and Section 106 planning and

compliance; estimated Total Project

Price; proposed schedule; milestones of

NPS design review and third party

project inspection and certification. The

elements of the PS will function as

check points of accountability and will

vary in frequency and scope, contingent

upon the nature, complexity and scope

of the proposed project.

(c) Leasehold Surrender Interest. If the

Concessioner seeks leasehold surrender

interest as a result of a construction

project, the Concessioner must request

and receive the written approval of the

proposed construction project by the

Park Superintendent in accordance with

the terms of this leasehold surrender

interest concession contract. An

estimate of the amount of leasehold

surrender interest shall be identified in

advance if the Concessioner requests

leasehold surrender interest. The

estimated leasehold surrender interest

costs shall be separately identified as

part of the Total Project Price and

substantiated, if requested, with written

and competitively acquired price

proposals or construction contracts. Not

all projects qualify for LSI. LSI is only

granted under the terms of this

CONTRACT, including, without

limitation, its Exhibit A.

(d) Methods of Establishing the

Expected Value of Leasehold Surrender

Interest. A number of methods are

available to estimate the Concessioner’s

leasehold surrender interest as long as

eligible direct and indirect costs are

specified. The methods of identifying

the expected value of leasehold

surrender interest include guaranteed

maximum price design-build

construction methods, conventional

design-bid-build methods, and

construction price estimates

professionally prepared by subject area

experts.

(e) Professional Services and

Construction. The Concessioner must

assure the park in its project statement

that for any project requiring

professional services, such services

shall be acquired from appropriate

registered technical professionals.

Licensed contractors shall perform all

project work unless otherwise approved

in writing by the Superintendent. The

Concessioner shall provide for

registered technical professionals to

perform project inspection and/or

facility certification, or any other service

needed for project implementation at

the request of the Park Superintendent.

(f) NPS Operations. Any aspect of the

proposed project where the scope of

work interfaces with NPS operations

such as utility service connections or

road maintenance operations must be

clearly identified in the PS.

(5) Submit Project Statement for NPS

Review

The proposed PS shall be submitted

in written correspondence from the

Concessioner to the Park

Superintendent requesting review. A PS

signed by the Park Superintendent

constitutes official authority for the

Concessioner to continue further project

development to the level specified in

written correspondence from the

Superintendent. The Concessioner may

obtain authority to complete a project

when sufficient planning and design has

been completed to meet the interests of

the park. Projects that do not have the

level of required planning are likely to

receive only conceptual approval with

authorization to proceed with further

planning and/or design as required to

assure park objectives are met.

(a) Project Statements Containing

Claims for Leasehold Surrender Interest.

A PS must present an estimate of project

expenditures to be claimed for LSI

purposes. The eligibility of any

expenditures for LSI will not be

identified until all project planning is

complete to the satisfaction of the Park

Superintendent, including NEPA and

Section 106 compliance, if required. An

approved PS serves only as a guide for

further project development to the level

specified in the PS. The Park

Superintendent shall only approve final

LSI costs after project completion and

written project close-out.

(b) Design Required for Leasehold

Surrender Interest Eligibility and Value.

The Park Superintendent may require

an appropriate level of design to

determine whether a project is eligible

for LSI, and if so, its estimated cost. The

level of project planning and design

required may include completion of

concept design, schematic design, or

preliminary engineering design, to

clearly identify the elements eligible for

LSI. Some projects may require the

completion of construction drawings

and specifications before the proposed

LSI is documented to the satisfaction of

the Park Superintendent. All

improvements for which LSI is claimed

must be defined in record ‘‘as-built’’

construction drawings and

specifications when the Concessioner

submits its request for LSI at Project

Close-out.

(6) Establish a Project File

A file of all project documents shall

be held by the Concessioner as a

chronological audit trail of all project

decision-making activity for each

project from concept development to

completion and NPS acceptance. Each

project shall be identified with a unique

project number assigned by the Park. All

documents entered into the file should

have the project identification number

clearly displayed on it as part of

document identity.

(a) Leasehold Surrender Interest

Project File. The Project File will

become an LSI project file when the

Concessioner requests approval of LSI.

It shall be established and maintained

by the Concessioner and shall include

all of the documents identified in

section 6(C) of this Exhibit. This file

shall be submitted at the time of Project

Close-out to the Park Superintendent as

the basis for the leasehold surrender

interest request. As part of this file, the

Concessioner must maintain auditable

records of all expenditures attributable

to each project and have them available

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26081

for review if requested by NPS

personnel. Invoices shall contain

sufficient information to identify the

tasks completed or products delivered

as agreed upon in contracts presenting

a full scope of work. The file shall

clearly provide a ‘‘paper trail’’ between

expenditures eligible for LSI purposes

and the payment of those expenses.

(b) Typical Project File. The

organization of a typical project file is

presented in the following sections:

Section A. Project Statement. The

approved PS, scope of work, and a copy

of the notice-to-proceed letter,

authorizing planning and design, sent to

the Concessioner by the Park

Superintendent should be filed in this

section.

Section B. Planning. This section

should contain documents pertaining to

any project planning. Typical

documents include those produced for

NEPA and Section 106 compliance.

Also contained in this section should be

any concept design, preliminary design,

or schematic design correspondence and

documents. When the Park

Superintendent grants approval for any

of the above stages of project

development, correspondence from the

Park Superintendent should be filed in

this section.

Section C. Assessment. This section

should contain a record of any

assessment performed during project

implementation. Soil, vegetation,

floodplain, structural, electrical

assessments, for example, should be

filed in this section. Any other existing

site or facility investigative reports, and

all quality assurance documents such as

third party project inspection, testing

and certification should also be filed in

this section.

Section D. Design. This section should

contain a record of documents produced

and decisions made during the design

phase of a project. The design phase

typically occurs when project activity

has shifted from conceptual discussion

to organizing detailed direction

provided to a contractor for

construction. Correspondence from the

Park Superintendent providing design

approval should be in this section.

Section E. Project Work. This section

should contain a record of decisions

made during project work. The letter

from the Park Superintendent granting

notice-to-proceed with the project

should be in this section. All contractor

proposals, change-orders, design

modification documents, daily

construction activity records, weekly

meeting minutes, etc. should be in this

section. Documentation for larger

projects should be organized according

to subcontractor activity or standard

specification enumeration. The final

document filed in this section should be

the NPS correspondence sent to the

Concessioner providing project

acceptance and close-out.

Section F. Financial. This is a very

important section where a copy of all

contracts and contract modifications

should be filed. It is important to assure

that all expenditures are accounted for.

All expenditures must have sufficient

supporting documentation crossreferenced with documents in other file

sections, if necessary. Monthly financial

detail reports shall be prepared and

filed in this section with copies of all

project budget documents. This section

must contain all correspondence

supporting LSI with appropriate cross

reference to other sections for clarity of

the LSI ‘‘paper trail.’’ (For example,

cross reference tabs). Also contained in

this section shall be a copy of the

project acceptance and close-out letter

from the Park Superintendent that

specifies the amount of leasehold

surrender interest, if any, applicable to

the project.

Section G. Photo Documentation.

Complete documentation, including

before-and-after photos, records of any

special situations or conditions

requiring changes, documentation of

methods used, etc., should be kept to

support requests for LSI and to assist

future maintenance and/or appraisal

efforts. Photographic documentation is

also usually required for modifications

to ‘‘listed’’ historic structures. To be

most useful, photos should be filed with

the documents they support.

(7) Submit Resource Compliance

Documents for Review and Approval

During development of the project

statement, responsibility for compliance

work will be established. The

Concessioner must request the

participation of NPS staff early in

project planning to assure uninterrupted

project implementation. Development of

compliance documentation must occur

as soon as possible. Every effort shall be

made to perform compliance document

preparation tasks concurrently with

project planning and design.

(a) Historic/cultural compliance.

Historic and cultural compliance

document approval is required for

property listed in or eligible for

inclusion in the National Register of

Historic Places. Any undertaking

affecting property listed shall be

performed in accordance with The

Secretary of the Interior’s Standards for

Rehabilitation & Illustrated Guidelines

for Rehabilitating Historic Buildings.

The Concessioner must document

proposed actions using the ‘‘XXX Form’’

(available from the National Park

Service) before any work occurs for any

project that may affect a historic

structure, historic district, cultural

landscape, archeological site or historic

object or furnishing. Compliance will

usually require the preparation of at

least ‘‘assessment of effect’’ drawings

and specifications to the level of final

documents if required. Compliance

shall carry through to submission of the

‘‘Construction or R&M Completion

Report’’ for many projects where

significant changes are made to the

historic structure and/or landscape.

Therefore, compliance document

approval usually will not occur until

after submission of project documents.

In-park historic compliance review and

approval will require at least several

weeks from date of submittal. Where

submittal is made to the State Historic

Preservation Officer or the Advisory

Council on Historic Preservation,

additional time will be required before

approval may be given. This may be

performed concurrently with approval

of project documents.

(b) Ground disturbance. Where

ground disturbance will take place

submittal of drawings that show area

and depth of proposed ground

disturbance will be required. Submittal

of this document early in project

planning is recommended. All project

documents that include soil disturbance

shall have the following specification

included within them:

‘‘Petroglyphs, artifacts, burial grounds

or remains, structural features,

ceremonial, domestic, and archeological

objects of any nature, historic or

prehistoric, found within the project

area are the property of and will be

removed only by the Government.

Should Contractor’s operations uncover

or his/her employees find any

archeological remains, Contractor shall

suspend operations at the site of

discovery; notify the Government

immediately of the findings; and

continue operations in other areas.

Included with the notification shall be

a brief statement of the location and

details of the findings. Should the

temporary suspension of work at the site

result in delays, or the discovery site

require archeological studies resulting

in delays of additional work for

Contractor, he/she will be compensated

by an equitable adjustment under the

General Provisions of the contract.’’

(c) Archeological Monitoring.

Monitoring project activity is a

requirement of cultural compliance

when significant ground disturbance

occurs during project work. Any

cultural resource monitoring required

shall be performed under the direction

26082 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

of the NPS. The NPS shall be notified

sufficiently in advance of the need for

a monitor and will assist the

Concessioner in making arrangements

for the services of an archeological

monitor at the expense of the

Concessioner, if the NPS is unable to

provide the expertise.

(d) National Environmental Policy Act

(NEPA) compliance. NEPA compliance

document approval is required before

any construction or R&M project occurs

for any project that has an impact on the

environment. Projects requiring

compliance will be identified by the

NPS early during project planning. The

actual review period length may vary

widely depending on the nature, scope,

and complexity of the project elements

that relate to resource compliance.

Projects that have an insignificant effect

on park resources usually require a

‘‘categorical exclusion’’ determination—

a process that may require sufficient

extended lead-time from submittal of

review documents. Projects having a

significant effect on park resources or

that are not part of other NEPA

compliance documentation may also

require a longer period of

implementation.

(8) Submit Project Documents (PDs) for

Review and Approval

The Concessioner shall submit PDs

for review and approval to establish

project activity for approval by the

Superintendent. Approved PDs

establish the full scope of the project

and the quality of work to be performed

by the Concessioner. The scope of the

documents required will be identified in

the PS. The scope and detail of the

documents will vary depending on the

nature and complexity of the project.

‘‘Manufacturer’s cut-sheets’’ may be all

that is required for some R&M projects,

and for others, complete detailed

drawings and specifications may be

required. The Concessioner is

responsible for the technical accuracy

and completeness of PDs and shall

provide the technical review as needed

to assure compliance with all applicable

federal, state and local statutes, codes,

regulations and appropriate industry

standards. Any exception to this will be

by written authorization from the

Superintendent.

(9) Submit a Project Estimate and

Schedule

An estimate of the Total Project Price

and completion schedule shall be

submitted to the Superintendent before

work begins. This is a revision of the

Total Project Price and completion

schedule estimated in the Project

Statement. It is based on the best

information available identified during

project planning and design.

D. Project Management Procedures

(1) Identify a Project Supervisor

A Project Supervisor shall be

identified and vested with the authority

to direct the contractor on behalf of the

Concessioner. The NPS will direct its

communication concerning the nature

and progress of day-to-day project

activity to this person. This person

should have full responsibility for

assuring that all construction complies

with the approved Project Documents

and specified code compliance. The

NPS should not take any responsibility

for projects until Project Close-out and

Acceptance when the NPS receives

certification of completed work

performed in compliance with Project

Documents and all specified codes.

(2) Submit a Total Project Price for

Review

(a) All projects completed under the

terms of this Contract where LSI is

requested shall include submittal of a

Total Project Price in writing to the

Superintendent for review.

(b) Where no LSI is requested, the

Total Project Price is provided as an

informational item. Formal approval by

the Superintendent is not required.

(3) Notice-to-Proceed with a Project

A ‘‘Notice-to-Proceed’’ with a project

will be issued when all submittals

requested by the Park Superintendent

have been reviewed and approved. The

Notice-to-Proceed must be received by

the Concessioner in writing before any

project work occurs.

(4) Hold a Pre-Project Conference with

the Contractor

The Concessioner shall arrange and

facilitate a pre-project conference as

needed or as requested by the NPS with

the Contractor. The purpose of the

conference is to provide the NPS the

opportunity to meet the Contractor and

confirm that the Contractor has full

understanding and knowledge of all

work to be performed. In addition, the

conference provides the opportunity to

confirm established communication

linkages between the Concessioner, the

Contractor and the NPS. Any questions

the Contractor may have regarding any

matter of the project or anything about

Area access, rules and regulations may

also be discussed.

(5) Submit Project Activity Reports (As

Required)

A record of project activity shall be

provided by the Concessioner on all

approved projects. The scope and

frequency of performing this

documentation shall be identified upon

submittal of PDs for Park approval. The

Concessioner is responsible for the

accuracy and completeness of all design

and completed projects.

(a) Content. Project activity reports

shall summarize daily project activity

recording important observations and

decisions. It shall also identify project

expenditures to date if required for

leasehold surrender interest purposes.

The reports shall identify any changes

to the approved PDs either by change

order or any other variance from

approved PDs. The NPS shall be

notified immediately, if a change is

likely to occur in the Total Project Price

where the project involves LSI. (See

discussion below for review and

approval of change orders and contract

modifications.)

(b) Regulatory code compliance and

project inspection (as required).

Inspection reports specifically

addressing regulatory code compliance

and adherence to PDs will be required,

at the request of the Superintendent,

during certain stages of the work.

Independent industry certified

inspectors or registered professional

subject area experts shall perform all

inspections and project component

certification. Inspection reports shall be

prepared that include all findings and

results of code compliance inspection.

Section and paragraph of applicable

codes shall be referenced when

deficiencies are noted.

Recommendations presenting

remediation shall accompany line item

deficiencies in the report. All inspection

reports shall be included in the final

project completion report submitted

before project acceptance by the

Superintendent.

(6) Submit Requests for Changes in

Approved Project Documents

The Superintendent’s approval will

be required before any significant

changes are made to the project scope

during the completion of projects, as

identified in the approved PDs. The

Concessioner shall provide the NPS

with written notification immediately

upon identifying the need for a change

in project scope that effects any of the

items listed below. The written

notification shall include a request for

change in the approved PDs complete

with justification and explanation of

effect of change on all other aspects of

project design and work. Requests for

any significant changes in the approved

PDs shall be reported in project activity

reports with attachment of any

documentation requested. Changes in

approved project scope during the work

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26083

that will require review and approval of

the Superintendent include the

following:

(a) Changes affecting natural, cultural

and/or historic resources;

(b) Changes in designated visual

appearance;

(c) Changes in the interface with NPS

utility and/or road facility maintenance

operations;

(d) Changes in project scope and/or

the estimated leasehold surrender

interest, as required for facility

improvement projects.

(e) Proposed changes where natural or

cultural/historic resources are involved

may require a significant period of

review depending on the complexity of

the concern.

(7) Submittal of Change Orders for

Review and Approval (For Leasehold

Surrender Interest Only)

When one of the five factors listed

above exists, the Concessioner shall

submit, for the review and approval of

the Park Superintendent,

documentation justifying the proposed

changes. The Concessioner shall also

submit a revised Total Project Price for

each proposed change, as needed,

indicating the proposed change in

estimated LSI. All change orders or any

other means of directing the Contractor

that may have the effect of increasing

the Total Project Price will require the

Park Superintendent’s review and

approval, if the project has LSI

implications.

(8) NPS Project Inspection

The project will be inspected

periodically by a representative of the

Park Superintendent. The purpose of

these inspections is not in lieu of or in

any way a substitute for project

inspection provided by the

Concessioner. The responsibility to

assure safe, accountable project activity

and for providing the contractor with

direction to fulfill the full scope of

approved work is the responsibility of

the Concessioner.

(9) Project Supervision Documents

Project drawings and specifications

must be kept on the project site

complete with any design or project

modifications, in a well-organized form.

The Construction Supervisor shall keep

a current ‘‘red-line’’ copy of approved

PDs updated daily showing any

changes. In addition, a well-organized

file of submittals required in the

approved PDs and approved where

required by professional Architects and/

or Engineers must also be kept on the

project site with the PDs for periodic

inspection by NPS staff.

(10) Substantial Completion Inspection

and Occupancy

Joint inspection by the NPS and the

concessioner will occur upon

notification that the project is

substantially complete. A ‘‘punch list’’

of work items will be formulated and

performed to ‘‘close-out’’ the project.

The Superintendent, in writing will

accept the project, when the ‘‘punchlist’’ items are completed.

The Concessioner is not to occupy the

facility until authorized in writing by

the Park Superintendent.

(11) Requesting Approval of Leasehold

Surrender Interest

Upon substantial completion of a

project, as determined by the Park

Superintendent, the Concessioner must

provide the Superintendent a written

schedule of requested LSI eligible costs

incurred, which becomes the

Concessioner’s request for LSI approval.

The project file, containing actual

invoices and the administrative record

of project implementation, must support

these expenditures and shall be

submitted to the Park Superintendent

for review with the request. If requested

by the Park Superintendent, the

Concessioner shall also provide written

certification from a certified public

accountant regarding the LSI costs. The

certification must comply with the

requirements of Exhibit A of this

Contract.

(12) Project Completion Report

Upon completion of any project, the

Concessioner shall submit a Project

Completion Report to the NPS. The

completion report shall include the

Total Project Cost; before-and-after

photo documentation; warranties;

operation and maintenance manuals, if

required; all inspection and certification

reports; and ‘‘as-constructed’’ drawings

(see item section C(13) below). Projects

where LSI is requested may require the

submittal of any other similar

documents deemed by the NPS

necessary to establish complete project

documentation. The level of

documentation requested may also

include adequate photo-documentation

provided during construction to record

significant unforeseen site and

construction conditions resulting in

changes to approved PDs and the

approved Total Construction Price.

(13) ‘‘As-Constructed Drawings’’

The ‘‘as constructed’’ drawings

included with the Project Completion

Report for all projects shall be full-size

archival quality prepared in accordance

with NPS management policies and

must be submitted before project

acceptance by the National Park Service.

At least two half-size sets of drawings

shall also be provided. The drawings

establishing LSI shall provide a full and

complete record of all ‘‘as-constructed’’

facilities including reproduction of

approved submittals and manufacturer’s

literature documenting quality of

materials, equipment and fixtures in

addition to a record set of project

specifications approved for

construction.

(14) Request Project Acceptance and

Close-out by the Superintendent

The Concessioner shall request

project acceptance by the Park

Superintendent either at the time of

submittal of the Project Completion

Report or at any time thereafter. Project

acceptance will be contingent upon

fulfillment of all requested project

completion work tasks and submittal of

all project documentation in accordance

with these guidelines and as requested

by the NPS. Until receiving formal

written project acceptance and close-out

from the Park Superintendent, the

Concessioner retains full responsibility

for all project construction activity and

liability for both completed and

uncompleted work. For LSI projects, the

project close-out letter issued by the

Superintendent will specify the granted

amount of LSI value resulting from the

project.

Exhibit G

Leasehold Surrender Interest as of the

Effective Date of this Contract

Pursuant to Section 9(c)(2), the

Concessioner’s leasehold surrender

interest in real property improvements

as of the effective date of this

CONTRACT, if any, is as follows:

Building Number

Description

Value

[If there are none, this exhibit should

say ‘‘NONE’’.]

Exhibit G Approved Effective llll

Concessioner

United States of America

By: llll

Director, National Park Service

By: llll

Title: llll

Exhibit H

(Sample) 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

26084 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

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.

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 I

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.

A. Commercial General Liability

1. 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’’

2. The liability coverages may not

contain the following exclusions/

limitations:

a. 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)

3. 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.

4. 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).

B. 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

C. 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

D. 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

E. 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

F. 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.

G. 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.

H. 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

J. 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.

Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices 26085

K. 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

A. Building(s) and/or Contents Coverage

1. Insurance shall cover buildings,

structures, improvements & betterments

and/or contents for all Concession

Facilities, as more specifically described

in Exhibit D of this CONTRACT.

2. Coverage shall apply on an ‘‘All

Risks’’ or ‘‘Special Coverage’’ basis.

3. The policy shall provide for loss

recovery on a Replacement Cost basis.

4. The amount of insurance should

represent no less than 90% of the

Replacement Cost value of the insured

property.

5. The coinsurance provision, if any,

shall be waived or suspended by an

Agreed Amount or Agreed Value clause.

6. Coverage is to be provided on a

blanket basis.

7. The Vacancy restriction, if any,

must be eliminated for property that

will be vacant beyond any vacancy time

period specified in the policy.

8. Flood Coverage shall be maintained

with a limit of not less than $.

9. Earthquake Coverage shall be

maintained with a limit of not less than

$.

10. Ordinance or Law Coverage shall

be maintained with a limit of not less

than $.

B. Boiler & Machinery Coverage

1. Insurance shall apply to all

pressure objects within Concession

Facilities.

2. The policy shall provide for loss

recovery on a Replacement Cost basis.

3. The amount of insurance should

represent no less than 75% of the

Replacement Cost value of the insured

property.

4. The coinsurance provision, if any,

shall be waived or suspended by an

Agreed Amount or Agreed Value clause.

5. Coverage is to be provided on a

blanket basis.

6. 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.

7. Ordinance or Law Coverage shall be

maintained with a limit of not less than

$.

C. Builders Risk Coverage

1. 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.

2. Coverage shall apply on an ‘‘All

Risks’’ or ‘‘Special Coverage’’ basis.

3. The policy shall provide for loss

recovery on a Replacement Cost basis.

4. The amount of insurance should

represent no less than 90% of the

Replacement Cost value of the insured

property.

5. The coinsurance provision, if any,

shall be waived or suspended by an

Agreed Amount or Agreed Value clause.

6. Any occupancy restriction must be

eliminated.

7. Any collapse exclusion must be

eliminated.

8. Any exclusion for loss caused by

faulty workmanship must be eliminated.

9. Flood Coverage shall be maintained

with a limit of not less than $.

10. Earthquake Coverage shall be

maintained with a limit of not less than

$.

D. Business Interruption and/or Expense

1. 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.

E. Deductibles

Property Insurance coverages

described above may be subject to

deductibles as follows:

1. 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).

2. Extra Expense deductibles (when

coverage is not combined with Business

Interruption) shall not exceed $25,000.

F. Required Clauses

1. 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:

1. 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).

2. 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).

3. 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

26086 Federal Register / Vol. 65, No. 87 / Thursday, May 4, 2000 / Notices

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.

Dated: April 27, 2000.

Linda Canzanelli,

Acting Associate Director, Park Operations

and Education, National Park Service.

[FR Doc. 00–10984 Filed 5–3–00; 8:45 am]

BILLING CODE 4310–70–P