ATTACHMENT 5_Sample Contract.pdf

Pahaska Concession

Sample License Agreement 1

CITY AND COUNTY OF DENVER

DEPARTMENT OF PARKS AND RECREATION

CONCESSION LICENSE

The City and County of Denver, hereinafter referred to as the “City”, acting by and through its Executive Director of Parks and Recreation (“DPR”), hereinafter referred to as the “Executive Director”, pursuant to the authority granted in Section 2.4.4(C) of the Charter of the City and County of Denver, and pursuant to the manner, terms and conditions fixed in this license, hereby grants to Concessionaire hereinafter named the license or privilege of operating a concession for selling goods and merchandise, and providing services in the park or recreational facility hereinafter described. Concessionaire, by execution of this Concession License, has accepted all of the terms and conditions thereof and agrees to comply with the same, including the obligations to pay such compensation to the City and to perform such duties and responsibilities for the Term of the Concession License, all as specified herein.

I. CONCESSION SITE: Operation of indigenous-focused food and beverage, retail marketplace, and cultural programming concession services at Denver Mountain Parks’ historic Pahaska facility located at Lookout Mountain Park, 987 Lookout Mountain Road, Golden, CO 80401 (the “Concession Site”). The Concession Site is defined as and shall include the kitchen, dining room, public bathrooms, identified storage rooms, and main lobby of the building (approximately 3,278 square feet), all as depicted in Exhibit A. The southeast wing will be utilized as shared programmatic space between the Concessionaire, the Buffalo Bill Museum, and Denver Mountain Parks (approximately 1,062 square feet).

The lower and upper levels of the facility will not be available. On-site housing for Concession staff will not be available. Limited use of outdoor spaces is subject to City approval.

II. CONCESSIONAIRE: CONCESSIONAIRE’S ADDRESS:

III. CONCESSION: The Concession shall include the sale and service of food, beverages, and retail products to the general public at the Pahaska facility and Concession Site as depicted in Exhibit A, and other services such as general maintenance, repair, and replacements as specified in this Concession License.

IV. CONCESSIONAIRE’S RESPONSIBILITIES: The primary obligation of Concessionaire is to serve the needs of park patrons. All other customer service activities for which Concessionaire may be engaged shall be subordinate to this primary obligation.

A. Notice of Occupancy and Concession Commencement: City shall provide express written notice of the first date that the Concessionaire may occupy the Concession Site.

Concession operations must begin by May 25, 2026 unless otherwise approved in advance and in writing by the Director of Mountain Parks or other Executive Director designee (“DMP Director”).

Sample License Agreement 2

B. Food & Beverage Service: Concessionaire shall have the nonexclusive right to engage in the sale of food and beverages, including alcohol beverages, in the Park;

however, all such sales must be conducted only within the defined Concession Site unless otherwise approved in advance and in writing by the DMP Director. Such service shall be tailored to and appropriate for the typical patrons of the Park and shall be provided in a customer friendly manner. Concessionaire has been engaged specifically to provide, in part, indigenous and Native American food and cuisine. Concessionaire is not obligated to limit its menu to indigenous and Native American food and cuisine. The menu of foods and beverages to be served along with associated pricing shall be submitted to the DMP Director in writing and shall be subject to the prior approval of the DMP Director. The Concessionaire shall post a menu and price list. Only good quality, fresh food and beverage products shall be served, with any cooked foods being prepared within the Concession Site kitchen, or by an approved commissary or other food preparation center authorized to cook and dispense foods for public consumption (no home-cooked foods). The City shall make the existing kitchen area available to the Concessionaire for food storage and preparation.

All equipment must be provided by and is the sole responsibility of the Concessionaire.

For the purposes of this Concession License, unless otherwise defined, equipment shall be regarded as “Personal Property” as described in subsection G., below, and defined in Section 2-5 of the Terms and Conditions (see Section IX). Prepackaged food products must be provided in individual servings, labeled as to ingredients, dated for expiration of product, transported in individual servings, and stored under proper conditions. The use of Styrofoam containers is prohibited. No glass food or beverage containers are allowed.

Concessionaire is encouraged to minimize waste by using environmentally-friendly disposables. All food storage must be wildlife resistant.

C. Licensing; Limitations: All state and local laws, regulations, and orders regarding food handling, including required inspections, shall be complied with, and all required food service permits shall be obtained, kept current, and provided to the DMP Director upon request. All safety and sanitation laws and regulations shall be complied with.

D. Liquor Sales; Suspension or Termination of Liquor Sales: The sale and service of alcoholic beverages are allowed, limited to beer and wine only, and subject to the following: 1) It is solely the responsibility of Concessionaire to secure a liquor license for the premises from the proper Jefferson County licensing authority; 2) Concessionaire shall comply with any and all terms and conditions of the licensing authority and the Executive Director. See Section IX, below, and subsection 3-4 of the Terms and Conditions.

Concessionaire shall provide a copy of the liquor license upon the DMP Director’s request.

City reserves the right to require Concessionaire to suspend or terminate liquor sales upon written notice from the City. Concessionaire shall suspend or terminate liquor sales within thirty (30) days of the date of the notice from the City. Failure to suspend or terminate liquor sales may result in the immediate suspension, revocation or termination of the Concession License.

E. Retail Sales: Concessionaire may engage in sales within the Pahaska retail marketplace (“Marketplace”) of merchandise and related items at the Concession Site as are appropriate for the needs and interests of the public (“Retail Services”). Concessionaire shall emphasize the marketing and sale of indigenous, local, and park and museum-related items intended to represent indigenous history and contemporary indigenous artisans and

Sample License Agreement 3 crafters. Concessionaire may store merchandise for sale at Pahaska. Concessionaire may, in addition and at the Concessionaire’s election, sell those items typically found and available at similar retail stores and concessions serving tourists, hikers, campers, and visitors to parks, including but not limited to clothing, confections, packaged food, drinks in cans or plastic bottles, decorative and hand-crafted items, puzzles and games, novelties, curios, souvenirs, local literature, or maps and guidebooks. The sale of the following is strictly prohibited: tobacco products (consistent with Section 3-4 of the Terms and Conditions); e-cigarettes; adult materials; packaged spiritous liquor; fireworks; and any marijuana paraphernalia and marijuana-themed merchandise. The City in its sole judgement and discretion reserves the right to disallow and require the Concesisonaire to remove any item for sale.

F. Service Area: All primary food and beverage service shall be conducted in the area depicted in Exhibit A, as further delineated by the Executive Director under Section I, above, and shall be conducted from facilities approved by the DMP Director. The City shall provide picnic tables for public use as depicted in Exhibit A, but the Concessionaire may not restrict use of the picnic tables to its customers. DPR does not and will not allow park patrons to reserve picnic table use. The Concessionaire may propose additional site furnishings subject to prior approval by the DMP Director.

G. Furniture, Fixtures, and Equipment: The Concessionaire will be responsible for placement and installations to the dining and food service area subject to City approval, and will supply, install, and maintain all equipment necessary for concession operations, such as restaurant and kitchen equipment, Point-of-Sale system, telephone system, stove, refrigerator, ice machines, dishwasher, food preparation units, tables and chairs, as well as all minor equipment, smallwares, and utensils needed. Any capital improvements in addition to these installations that may be needed to accommodate the Concessionaire’s equipment beyond what is initially supplied, including utility installations, will be the sole financial responsibility of the Concessionaire. The Concessionaire must purchase, lease or supply all equipment needed to operate the Concession. All newly purchased furniture, fixture and equipment must be pre-approved by the DMP Director to ensure quality and compatibility with facility. The Concessionaire shall maintain, repair and keep in good and safe condition all furniture, fixtures and equipment and maintain records of all preventative maintenance and repairs, which shall be provided to the DMP Director upon request. The

Concessionaire shall be responsible for replacing or repairing any furniture, fixtures and equipment that is inoperable or in disrepair. Upon expiration or termination of this

Concession License, any furniture, fixtures and equipment that are permanently attached to the facility, whether purchased by the Concessionaire or the City, shall become and/or remain the property of the City. Equipment that is not or has not become City property shall be considered and remain Concessionaire Personal Property. With approval from the

DMP Director, the City may in its discretion provide credits against Percentage Payments and/or GAMP (see Section VII. Compensation to be Paid to the City) for furniture, fixtures and equipment purchased by the Concessionaire subject to proof of payment or purchase by the Concessionaire.

1. Smallwares. The Concessionaire shall supply, and shall be responsible for repairing and replacing when necessary, all smallwares including but not

Sample License Agreement 4 limited to, plates, glasses, silverware, serving dishes, pots, pans, knives, measuring cups, cooking sheets, blenders, microwaves, small toaster ovens, toasters and any other similar items necessary for the operation of a good quality food and beverage service at the Concessionaire’s expense. Smallwares shall be considered Concessionaire Personal Property. Upon expiration or termination of this Concession License, all smallwares will remain

Concessionaire Personal Property.

2. At the termination or expiration of this License, Concessionaire is required to remove all Concessionaire Personal Property from the Premises and City property. The Parties may opt to negotiate for the City’s purchase of

Concessionaire Personal Property at the time of termination or expiration.

Unpurchased Concessionaire Personal Property (if any) must be removed.

H. Concessionaire Maintenance: The Concessionaire will be responsible for general maintenance and repair services for their assigned areas of the Pahaska building and all public bathrooms, including all food and kitchen equipment inspections, regular cleaning and stocking of materials, safe storage of supplies, minor repairs under $2,000.00, rodent and pest control, and snow removal for the walkways into the building. The DMP Director may, as dictated by facility needs, require that any of the services listed below be performed by a professional third-party service provider at the Concessionaire’s cost.

1. Premises Maintenance. Grounds and walkways within thirty (30) feet of

Pahaska, the picnic area, and related support areas (“Maintenance Premises”) shall be cleaned of litter and garbage on a daily basis. Concessionaire shall be responsible for snow removal on all sidewalks, stairs and paths leading to the building. Concessionaire shall be responsible for assuring that access to and from the Concession Site is safe for walking and ice free. DPR will perform snow removal for the parking lot and the path to the Buffalo Bill Grave.

2. Equipment Maintenance. Concession facilities must be maintained and serviced as needed to ensure proper function and appearance including but not limited to appliances, hardware, and plumbing fixtures. Electrical fixtures, light bulbs, and other electrical appliances shall be maintained in an operating and safe condition. Kitchen equipment shall be inspected as required by local regulations including ANSUL and vent hood inspections and maintenance. The City is otherwise responsible for the costs and management of fire monitoring, inspections, maintenance, and repairs related to the Pahaska building.

3. General Interior Cleaning. Structures at the Concession Site, including common areas, shall be maintained in good condition. Logs documenting daily cleanings shall be maintained on site and provided to the DMP Director upon request. All floors and floor coverings shall be vacuumed, swept, or mopped, and carpets cleaned, as appropriate, on a regular basis and when needed, and interior walls and interior wall coverings shall be cleaned on a regular basis and when needed. All floors and interior wall surfaces that are exposed to water or regular washing shall be sealed, and the seal maintained, so as to prevent any structural damage to the facilities. Furnishings and equipment shall be dusted

Sample License Agreement 5 or cleaned on a regular basis and when needed. All doors, windows, and window glass shall be cleaned on a regular basis and when needed.

4. Public Rest Rooms. Rest rooms in the Pahaska Concession site shall be open to the use of patrons of the Concession. Concessionaire shall be responsible for properly maintaining and repairing the restrooms throughout any open days. All rest rooms are to be cleaned and supplies provided on a daily basis. Trash and debris within the restroom shall be regularly collected and properly disposed

of. All surfaces shall be swept, washed, and sanitized as needed. At closing, the restrooms are to be inspected to ensure they are vacant before locking. At opening, the restrooms shall be unlocked and inspected to determine if they are clean and properly supplied.

5. Graffiti. Graffiti (stickers, marker and paint) shall be promptly removed from all surfaces, so long as the removal does not damage historic surfaces or finishes.

6. Tools and Supplies. All tools, equipment, and cleaning and janitorial supplies kept on site for maintaining the Concession Site shall be stored in a safe location, not accessible by the public, and used in a manner that protects the public from any injury or harm. All toxic, hazardous, or flammable materials or waste shall be stored, handled, used, and disposed of in a manner that conforms with all federal, state, and local laws and regulations. Concessionaire shall maintain on site Material Safety Data Sheets (MSDA) describing all chemical products used and stored on the Concession Site Premises.

7. Trash and Recycling Service. The City shall provide trash service for pick up and hauling of accumulated trash and rubbish and single stream recycling service. Concessionaire is responsible for daily collection and proper disposal of litter and trash resulting from Concessionaire’s operations, including trash that may have blown outside of the Concession Site. Concessionaire shall maintain the Concession Site including the indoor retail and Marketplace areas and bathrooms in a neat, clean, safe, stocked, and sanitary condition. All trash, debris, junk, waste, packing boxes or materials shall not be allowed to accumulate at the Concession Site including the indoor retail and Marketplace areas and bathrooms, or any adjoining City-owned property, and must be containerized, if possible, and regularly removed each day and throughout the course of the day from the Concession Site and disposed of in accordance with law. Spills of any nature shall be promptly cleaned up. The City or its vendor will provide bear-resistant trash cans and on-site dumpsters and recycling bins.

The Concessionaire will be responsible for managing all concession-related waste as follows: empty bear-resistant trash cans at the picnic area daily

(Concessionaire will provide trash bags); ensure that dumpsters and trash cans are properly secured to prevent bears and other wildlife from obtaining access;

sort materials for recycling including but not limited to cardboard, paperboard, plastics, glass, aluminum cans, and steel cans into provided bins daily.

8. Rodent and Pest Control. The Concession Site shall be maintained free of rodents and pests at all times. Concessionaire is responsible for hiring or retaining exterminator and other pest and rodents control services. A copy of

Sample License Agreement 6 the contract or service agreement for pest control shall be provided to the DMP

Director upon request.

9. Architectural Features. Concessionaire shall, at all times, diligently enhance the architectural and unique features of the building and Facility. No permanent alterations or modifications to the Facility’s architectural features are permitted unless the written approval of the Executive Director is first obtained. Executive

Director or designee reserves the right to require removal of any displays or other objects placed on architectural features that, in the Executive Director’s discretion, negatively impact the features’ qualities.

10. The Parties agree to the distribution of responsibilities regarding care and maintenance of the Premises as described in Exhibit B – Maintenance and

Repairs Matrix (“Matrix”), attached hereto and incorporated herein. Exhibit B may be modified upon the written authorization of the DMP Director to correct minor, technical errors. The City will not be liable for any reason for any loss or damage resulting from an interruption of any of these services.

Concessionaire shall have no right to make repairs to the Premises at City's expense. The City at its sole discretion reserves the right to undertake capital improvements during the Term of this License at its own expense. The City will notify the Concessionaire before undertaking any such improvements. The

Concessionaire will notify the City of any major damage to the property to include, but not limited to, any life safety issues, structural issues, fires, and/or water issues. All requests for maintenance and repair to the City, if applicable, must be sent to the City through their preferred method of notification. In the case of conflict between Exhibit B and the Concession License, the Concession

License shall supersede Exhibit B.

11. Any maintenance performed through contracts or other service agreements with third party providers requires that the Concessionaire provide copies of the contract or service agreement to the DMP Director. Concessionaire shall also provide copies of any modifications or cancellations of contracts or service agreements. City may in its discretion and upon request require a copy of the service providers certificate of insurance.

I. Schedule; Hours of Operation: Unless otherwise agreed to in writing by the DMP Director, Concession Services are to be provided seven (7) days per week from the Saturday of Memorial Day weekend through Labor Day (the “May to September Schedule”) during the Term. The Park is open to the public seven days per week on a year-round basis, and Park hours are from one hour before sunrise to one hour after sunset. For the period the day after Labor Day through the Friday before Memorial Day (the “September to May Schedule”), the Concessionaire may set its operating schedule based on volume and demand. Temporary suspension or closure of operations is allowed under this Agreement for certain weather conditions including hail, heavy rain, strong winds, lightning, accumulating snow fall, freezing sleet, severe cold (under 35 degrees F.), and any similar conditions that makes patron use of the parks and the Concession impractical.

The retail services for the Marketplace shall also be provided during the same May to September Schedule. During the September to May Schedule, the Concessionaire may set its operating schedule based on volume and demand. For the first year of the Concession

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Services and the Retail Services, the September to May Schedule may be set at the Concessionaire’s election and shall not require prior approval by the DMP Director, however, the Concessionaire shall provide the schedule to the DMP Director. After the first year of the Term, and for the remainder of the Term, the September to May Schedule for the Concession Services and Retail Services shall require prior approval of the DMP Director and shall be submitted to the DMP Director by no later than August 1.

J. Signage; Displays: Concessionaire is responsible for providing any signage related to its operation. All signage used at the Concession Site shall be subject to the prior written authorization by the DMP Director and subject to the restrictions set forth in Sub-section

3-5 of the Terms and Conditions (see Section IX below). All external signage must conform with applicable code(s) and DPR signage rules.

K. Utilities: The Concessionaire will be responsible for account maintenance and all costs for phone, internet, and cable services for their assigned areas of the building. The

City will pay the remainder of utility costs for Pahaska and will bill the Concessionaire for reimbursement on a quarterly, biannual, or annual basis depending on the frequency of services. The Concessionaire will be responsible for reimbursing the City for utilities and services as follows:

1. 70% of Electric costs

2. 70% of Natural Gas costs

3. 45% of Water costs

4. 50% of Septic costs

5. 100% of Grease Trap costs

6. 50% of Trash Removal and Recycling costs

L. Other Pahaska Facilities; Special Events:

1. Along with the retail use of the Pahaska building, the southeast wing of the building may be utilized as a multiuse room for education programs, meetings, or other appropriate uses. The space may be used by the Concessionaire for special programs with prior written approval of the DMP Director. The

Concessionaire may host special events outside of business hours at Pahaska so long as they are consistent with the mission of Denver Mountain Parks and the

Buffalo Bill Museum & Grave and receive prior approval from the DMP

Director.

2. By no later than ______, Concessionaire shall annually provide a proposed programming calendar and schedule for the upcoming year. The proposed schedule shall include the proposed event; subject and purpose of the event;

dates and times; anticipated number of attendants; proposed food and beverage or catering arrangements; and proposed fees to be charged to the attendants.

Concessionaire shall indicate whether any of the above information cannot be provided, and the DMP Director will set a deadline for Concessionaire to provide the information. DMP Director may approve the proposed calendar;

Sample License Agreement 8 approve with conditions or modifications; suspend approval until all required information is provided; or reject the proposal.

3. Concessionaire may utilize additional areas for administrative and office space if requested and approved by DMP Director.

4. City will allow one ranger caretaker to reside in the private apartment on the ground floor. The caretaker will have full access to the building during and outside of business hours.

M. Capital Improvements:

1. In each year of the License term, the Concessionaire shall propose and perform

Capital Improvements, subject to the needs of the respective buildings and facilities within the Premises, in an amount equal to or greater than _________

($____.00) (“Capital Improvements”) per year. The Concessionaire shall provide the appropriate building or facility assessments to determine building needs, or shall coordinate with the DMP Director to complete an assessment of

Capital Improvement needs. By _______ of each year, the Concessionaire shall submit a list of proposed projects and costs, and/or its proposal to rollover the

Capital Improvements to the next contract year. The DMP Director shall either approve or disapprove the Concessionaire’s proposal, either in whole or in part, within thirty (30) days of submittal.

2. Concessionaire and the DMP Director shall cooperate in developing the improvement design and construction plans and schedule, including selection of the design and construction professionals, to first develop an appropriate cost proposal for the Capital Improvements, then to cooperate and coordinate on further design and construction through completion of the improvements.

3. All Capital Improvements made are to be permanent in nature to enhance the value and utility of the Concession Site. All proposed Capital Improvements, including plans, are subject to the prior written approval of the DMP Director and the requirements of Section 2-1 of the Terms and Conditions (See Section

X below). All completed Capital Improvements shall be the property of the City upon completion and acceptance by the City. Additional improvements may be proposed by Concessionaire to be constructed or installed, at Concessionaire’s sole expense, subject to the requirements of Section 2-1 of the Terms and

Conditions (See Section X below). The City shall have no obligation under this

Agreement to perform or complete any City capital improvements, but shall assist the Concessionaire in performing Capital Improvements as limited by this

Agreement.

4. Subject to the limitations and requirements of this subparagraph M., as well as the Agreement and its Terms and Conditions (See Section X below), the

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Concessionaire may either perform the Capital Improvements, or may contribute funds to the City in the amount of $______.00 per year. The selected

Capital Improvements projects must be approved in advance by the DMP

Director. The DMP Director may in any given year, subject to negotiation, consider the cost or value of any completed Capital Improvements as a credit toward or offset against the GAMP or Percentage Payment.

5. If Capital Improvements in an amount less than the agreed upon amount for that year is performed, then any remaining work or amounts may be rolled over into the next contract year with prior written approval of the DMP Director; except that all work must be performed, and all funds must be expended prior to the end of the term of the Agreement. If all work is not fully performed and all funds not expended by the end of the Agreement’s term, then the City shall be entitled to payment of the Capital Improvements contribution or the same value of the work from the Concessionaire. Promptly upon completion of all Capital

Improvements Contribution projects, the Concessionaire shall submit final invoices or receipts documenting the actual costs of each project to the Director.

N. Terms & Conditions: The City shall have the right to exercise all authority set forth in the applicable Terms and Conditions (Section X below).

VI. TERM: EFFECTIVE DATE: EXPIRATION DATE:

Date Concession License _________________ is executed by City

Unless revoked in accordance with Section 7 of the Terms and Conditions (See Section X below).

VII. COMPENSATION TO BE PAID TO CITY:

A. In consideration for the right to operate the Concession Site, the City will require monetary compensation in the form of a Guaranteed Annual Minimum Payment (“GAMP”) as well as monthly payments equal to a percentage of gross revenues once the total percentage of sales exceeds the GAMP amount. Annual CPA audited gross revenues reports and monthly itemized revenues reporting will be required.

ALL SALES AT THE CONCESSION MUST BE REPORTED, AND ALL

FINANCIAL RECORDS ARE SUBJECT TO AUDIT BY THE CITY.

Compensation shall be paid to the City and financial records shall be maintained in accordance with Section 4 of the Terms and Conditions (See Section X below) and as follows: Starting on the effective date of this Concession License, all Concession sales and receipts shall be recorded on a Point-of-Sale system designed to accurately record all sales and receipts. Paper and electronic records of all transactions and bank deposits shall be maintained along with appropriate bookkeeping and accounting practices to document Gross Revenues.

B. Guaranteed Annual Minimum Payment of ________ ($____), to be paid by April 1st each year during Term of Concession License. For the first year, GAMP will be

Sample License Agreement 10 waived. After GAMP has been paid, no Percentage Payments will be due until the total percentage of sales exceeds the GAMP amount for that year.

C. Percentage Payment of ____ percent (__%) of all Gross Revenues, to be paid to the City monthly during Term of Concession License (subject to proration from the date of occupancy for the first partial year). Payment shall be made no later than the _____day___________ following the first full month of operation. The percentage payments shall be paid each month on the 20th day of the month for Gross Revenues received in the previous month. An itemized revenue report showing Gross Revenues for the previous month shall be provided each month with the percentage payments.

D. Not later than April 1st of each year during the Term, Concessionaire shall furnish to the City a true and accurate statement of the total of Gross Revenues during the preceding calendar year or any part thereof that the Concession operated along with the prior year’s tax returns and an annual income statement specific to the Concession Site operation (“Annual Report”). The Annual Report shall itemize the authorized deductions and exclusions in computing the amount of such Gross Revenues and shall include a breakdown of Gross Revenues on a month-by-month basis. The Annual Report shall be prepared and certified by an independent certified public accountant who has audited the Gross Revenues in accordance with generally accepted accounting procedures for special reports. The above requirements for the Annual Report may be modified by the Executive Director, in the Executive Director’s discretion, if such modification is in the best interests of the City.

VIII. PAYMENT AND PERFORMANCE BOND: The Concession License shall not be effective until the Concessionaire delivers to the Executive Director a satisfactory performance bond or letter of credit to assure performance under this Concession License in the amount of Fifty Thousand Dollars ($50,000.00), as specified in Sub-section 5-4 of the Terms and Conditions (See Section X below), and a satisfactory performance and payment bond or letter of credit to assure all contracted maintenance and repair work and all financial obligations associated with said work, as specified in paragraph f. of Sub-section 2-4 of the Terms and Conditions (See Section X below), in the amount of Ten

Thousand Dollars ($10,000.00).

IX. INSURANCE COVERAGE: In accordance with Sub-section 5-2 of the Terms and

Conditions (See Section X below), the following amounts of insurance coverage are required:

Commercial General Liability $1,000,000.00 per occurrence

$2,000,000.00 general aggregate limit

$1,000,000.00 products-completed operations

Sample License Agreement 11 aggregate limit

$1,000,000.00 personal & advertising injury

$300,000.00 fire damage legal

Worker’s Compensation Colorado statutory requirements

Business Auto Liability $1,000,000.00 per occurrence

Liquor Liability Insurance $1,000,000.00

Commercial Crime $1,000,000.00

The amounts and types of insurance coverage required above shall be subject to review every four (4) years during the term of this Concession License and upon any renewal of this Concession License. If it is determined by Risk Administration for the City that changes in the amounts or types of insurance coverage are needed in order to address changed conditions or inflationary conditions, Concessionaire shall be notified, in writing, to make the required changes in insurance coverage within ninety (90) days of notification.

The City has the option to require Concessionaire to carry property insurance on the

Concession Site, including business interruption coverage, with the City named as a Loss

Payee.

X. TERMS AND CONDITIONS: All sections and sub-sections of the Terms and Conditions, hereto attached and hereby incorporated into this Concession License, are applicable to this

Concession License, except as otherwise provided in this Concession License. In the event of any conflicts or inconsistencies between the specific provisions of the Concession

License set out above and the attached Terms and Conditions, the specific provisions above shall control.

XI. EXAMINATION OF RECORDS: Any authorized agent of the City, including the City

Auditor or his or her representative, has the right to access and the right to examine any pertinent books, documents, papers and records of the Concessionaire as set forth in

Section 4 of the Terms and Conditions.

XII. ELECTRONIC SIGNATURES AND ELECTRONIC RECORDS: Concessionaire consents to the use of electronic signatures by the City. The Agreement, and any other documents requiring a signature under the Agreement, may be signed electronically by the

City in the manner specified by the City. The parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original.

CONCESSION LICENSE

TERMS AND CONDITIONS

The terms and conditions stated herein, as modified and supplemented by the specific provisions of the Concession License to which these Terms and Conditions are attached, shall constitute the terms and conditions of the Concession License to the extent specified in the

Concession License, Section X.

NOTE: The granting of a Concession License to a Concessionaire allows the use of the Concession Site for the operation of a Concession. The Concession License does not create or recognize, nor shall it be construed to create or recognize, any obligation on the part of the City or the Department of Parks and Recreation to provide the Concessionaire with an operating business or to guarantee the success of the business operated by the Concessionaire on the Concession Site.

SECTION 1 -- DEFINITIONS

As used throughout, the following definitions shall apply:

1-1. “Auditor” shall mean the City Auditor or the Auditor’s authorized representative.

1-2. “City” shall mean the City and County of Denver.

1-3. "Compensation" shall mean the amount of money due to the City during or following the

Term of the Concession License from Concessionaire in accordance with any payment schedule and other requirements in the Concession License and subject to any adjustments in amount provided for in the Concession License.

1-4. “Concessionaire” shall mean the party identified in the Concession License and the

Concessionaire’s successors and approved assigns, subcontractors, and transferees.

1-5. “Concession” shall mean the right to operate sales, service and other concession activities as expressly authorized by the Concession License.

1-6. “Concession License” shall mean the concession license agreement to which these Terms and Conditions are attached and any exhibits and other attachments to that Concession

License and any duly approved and executed amendments to the Concession License.

1-7. “Concession Site” shall mean the kitchen, kitchen storage areas, dining area, and bar areas and office as defined in the Concession License.

1-8. “Executive Director” shall mean the Executive Director of the Department of Parks and

Recreation, City and County of Denver, or the Executive Director’s authorized representative.

1-9. “Fixture” shall mean any goods, items and other articles, other than Improvements, which are affixed to the Concession Site and which ultimately becomes the property of the City because they cannot be removed without damage to the Concession Site.

1-10. “Gross Revenues” shall mean the aggregate of fees, receipts, sales, and income of any kind derived directly or indirectly from the operation of the Concession after deducting any discount at the point of sale, but before deducting any costs, expenses, or losses, except applicable excise taxes collected from customers on behalf of government agencies, tips and gratuities, and deposits for a rental, function or event, but only if all of the revenue from the rental, function or event including the deposit is reported together after completion of the rental, function or event, may be deducted. If Concessionaire provides discounts the amount of which the Concessionaire is later reimbursed, then the discount shall not be deducted from Gross Revenues, but shall be included in the reported Gross Revenues.

1-11. “Guaranteed Annual Minimum Payment” (“GAMP”) shall mean a minimum dollar amount, which the Concessionaire agrees to annually pay, as specified in the Concession License.

1-12. “Improvement” shall mean any permanent improvement, other than a Fixture, constructed or installed on or in the Concession Site which becomes the property of the City upon construction or installation.

1-13 “Premises” shall mean the entire real property and structures covered by the Concession

License, including the Concession Site, and any Improvements and Fixtures.

1-14. “Term” shall mean the time period between and including the effective date and the expiration date provided in the Concession License and any extension thereto as approved by amendment to the Concession License.

SECTION 2 – IMPROVEMENTS; OWNERSHIP AND USE; MAINTENANCE AND

REPAIR; PERSONAL PROPERTY

2-1. CONSTRUCTION OF IMPROVEMENTS BY CONCESSIONAIRE:

Concessionaire, at no cost to the City and subject to the requirements of this Sub- Section 2-1, shall cause to be designed, constructed and installed in or on the Concession Site Capital

Improvements as set forth in the Concession License, IV.M.

a. Concessionaire agrees that any proposed permanent improvement to the Concession

Site, unless otherwise expressly provided in the Concession License, must receive the prior written approval of the Executive Director, which will not be unreasonably withheld provided the proposed improvement serves the stated purposes of the Concession License. Concessionaire further acknowledges and agrees that, except as expressly provided in the Concession License, the

Concessionaire shall not be entitled to any reimbursement, reduction in Compensation paid to the

City, or any additional extension of the Term or increase in rights or privileges under the

Concession License based on any improvements made by Concessionaire to the Concession Site.

Upon construction or installation, the additional improvement shall be regarded as an Improvement or Fixture, as appropriate under the Concession License.

1) In accordance with City Charter §2.3.3, §20-56, D.R.M.C., and Executive

Order 8, and with the City’s approval, the Concessionaire’s construction contractor shall be selected by competitive selection, either to a lowest, qualified, responsive bidder, or through a request for qualification (RFQ) or request for proposal (RFP).

2) MWBE Participation Requirement: If any Construction is to be performed by the Concessionaire through a construction contractor, then such work shall be subject to all applicable provisions of Divisions 1 and 3 of Article III, of Chapter 28, Denver Revised Municipal

Code (D.R.M.C.), designated as Sections 28-31 – 29-36 and 28-51 – 28-90 D.R.M.C. and referred to as the “MWBE Ordinance”. In accordance with the requirements of the MWBE Ordinance, the

Concessionaire’s construction contractor shall obtain a minimum participation goal to utilize properly certified MWBE subcontractors and suppliers, if that contractor intends to retain subcontractors for the proposed construction. In addition to the applicable provisions of the MWBE

Ordinance, the Concessionaire’s construction contractor shall agree, as an express condition of its performance, to comply with the requirements of any approved Division of Small Business

Opportunity (“DSBO”) Utilization Plan, if applicable. The Concessionaire’s construction contractor shall acknowledge its continuing duty, pursuant to Sections 28-73, 28-74 and 28-75

D.R.M.C. and the MWBE Program, to meet and maintain throughout the duration of the construction its participation and compliance commitments and to ensure that all subcontractors subject to the MWBE Ordinance or the MWBE Program also maintain such commitments and compliance. Failure to comply with these requirements may result, at the discretion of the Director of DSBO, in the imposition of sanctions against the construction contractor in accordance with

Section 28-76, D.R.M.C.

b. With respect to any construction or installation work that may be performed on the

Concession Site, Concessionaire shall obtain and maintain, or require the contractor(s) and subcontractor(s) to obtain and maintain, 1) insurance in the amounts and types of coverages appropriate for the work, substantially as specified in Sub-Section 5.2, unless otherwise agreed in writing by the City’s Risk Management Office, and b) one hundred percent (100%) payment and performance bonds as specified in paragraph a. of Sub-Section 5.4. The City shall be named as additional insured on insurance coverages, and Concessionaire shall be named as the obligee on bonds. Bonds and insurance shall be subject to review and approval by the City prior to the initiation of any work on the Concession Site. In addition, all contractor(s) and subcontractor(s) shall be required to include an indemnification and “hold harmless” clause, approved by and for the benefit of the City, to protect the City against claims, actions, and demands arising from or related to the work performed by the contractor(s) and subcontractor(s). Evidence that such insurance and bonds have been obtained, satisfy the requirements of this paragraph c. of this Sub-

Section 2-1, and have been continuously maintained shall be provided by Concessionaire to the

Executive Director. Copies of any construction contracts shall be provided by Concessionaire upon request by Executive Director. Concessionaire or its contractor(s) and subcontractor(s) shall pay the costs of the bonds and insurance.

c. Prior to the commencement of any work on the Concession Site, Concessionaire shall, at no cost to the City, develop or have developed plans, drawings, and specifications for all construction to be performed and installed on the Concession Site and obtain approval of such plans, drawings, and specifications from the Executive Director and, if required, from the

Department of Transportation and Infrastructure (“DOTI”). Any substantive changes in the work schedule, plans, drawings, and specifications must likewise obtain prior approval by the Executive

Director and, if required, from DOTI. All plans, drawings, and specifications shall be prepared under the direction of and certified by licensed professionals such as architects, landscape architects, structural engineers, electrical engineers, or mechanical engineers or others as applicable and appropriate, based on construction project elements. All plans, drawings, and specifications shall meet all requirements of current editions of all applicable codes and regulations established by federal, state, and local law. Concessionaire shall provide City with a schedule of final construction plans and phasing of actual construction.

d. Concessionaire shall secure, keep current, and pay for all necessary licenses, permits, fees, and taxes for its construction and related operations on the Concession Site, including but not limited to site development permits, water and sewer connection fees, building permits, zoning permits, and any other necessary approvals, as required, prior to the commencement of each applicable component of construction and observe and comply with the applicable provisions of the Charter, ordinances, and rules and regulations of the City as well as applicable state, federal and other local laws. To the extent applicable, Concessionaire shall conform with the requirements of the federal Americans with Disabilities Act and any other federal or state laws requiring access for the disabled to public accommodations. Concessionaire shall require its contractors and subcontractors to comply, to the extent applicable, with the environmental requirements of Section

3-12.

e. Depending on the scale of the construction project, the Executive Director may require Concessionaire to purchase, or to arrange for any contractor to purchase, All Risks Form

Builder’s Risk insurance for any Improvements or Fixtures to be constructed or installed. The insurance coverage shall include all equipment, machinery, supplies, and other property intended to be permanently incorporated in the Concession Site for which title or risk of loss shall have passed at the time of loss to the insured. Limits under this insurance shall not be less than 100% of the replacement value of the Improvements or Fixtures to be constructed or installed and for physical damage to property and related expenses. Coverage shall include expense due to delays in completion as a result of the insured perils, subject to a thirty (30) day deductible. Coverage shall apply to such property while it is located at the Concession Site or on nearby City-owned property, or located at temporary off-site storage or staging areas, or while in land-based transit to the Concession Site within the continental United States. Coverage shall include subcontractors working on the Improvements or Fixtures. The deductible shall be no more than 2% of the total value of the Improvements or Fixtures being made or installed, or $10,000, whichever is the greater or at an amount agreed by the City’s Risk Management Office. The City and County of Denver, its employees and officers shall be named as loss payee and additional insured.

f. Prevailing Wage Requirements:

1) Concessionaire shall require every contractor or subcontractor to post in a prominent and easily accessible place at the site of the work the scale of wages to be paid by the contractor and subcontractors of all tiers.

2) In performance of all work under this Sub-Section 2-1, Concessionaire agrees to comply with and be bound by all requirements and conditions of the City's Payment of

Prevailing Wages Ordinance, Sections 20-76 et seq., D.R.M.C., including but not limited to any anniversary date wage rate adjustments, and any determinations made by the City pursuant thereto.

As such, Concessionaire shall require every contractor and subcontractor of any tier performing work under this Sub-Section 2-1 to pay all workers, mechanics, and laborers in accordance with the rates and classifications established under the federal Davis-Bacon Act and Section 20-76, D.R.M.C. and require that employees be paid weekly. Concessionaire shall require every contractor and subcontractor to fully familiarize themselves with all the terms, conditions, and requirements of said Section 20-76, D.R.M.C., which is part of the Concession License.

3) In accordance with Section 20-76(b), D.R.M.C., the prevailing wage rate schedule applicable to any work performed under this Section shall be the most current schedule available at the time Concessionaire executes a contract. The most current schedules are available from the City’s Career Service Authority and the Auditor’s Office. Such schedule must be attached to and incorporated in any contract for construction of Improvements or installation of Fixtures authorized under this Sub-Section 2-1. The Concessionaire shall require every contractor and subcontractor of any tier performing work that is covered by the Section 20-76, D.R.M.C., to furnish to the City for each week during which workers are employed, copies of the payroll records of all such workers demonstrating compliance with the prevailing wage requirements. These payroll records must contain information showing classification, the number of hours worked, itemized deductions made from the pay of each worker, and the gross and net amount of pay received by each worker for the week ending period covered by the payroll. Upon request, the contractor or subcontractor shall provide other documentation deemed necessary by the City. All copies of the payroll records shall be accompanied by sworn statements of the contractor or subcontractor that the copies are true and correct and are the payroll records of all mechanics, workers, and laborers employed; that the payments were made to the workers as stated in the said payroll records; and that no deductions were made other than those set forth in the payroll records.

Three sets of these payroll records are required. The original shall be transmitted to the Auditor of the City and copies to appropriate City departments and agencies.

4) If any laborer, mechanic, or worker employed by any contractor or any subcontractor to perform work for Concessionaire at the Concession Site has been or is being paid less than the rate of wages required by the applicable prevailing wage rate schedule, the City may suspend or revoke the Concession License.