RFP Exhibit B.pdf

STATE OF COLORADO

acting by and through the

Department of Natural Resources, for the use and benefit of the

Division of Parks and Wildlife and the Parks and Wildlife Commission

CONCESSION CONTRACT

with

INSERT LEGAL NAME OF CONCESSIONAIRE

TABLE OF CONTENTS

1. PARTIES

2. EFFECTIVE DATE and NOTICE of NONLIABILITY

3. RECITALS

4. DEFINITIONS

5. TERM and EARLY TERMINATION

6. GRANT OF CONCESSION

7. USE OF CONCESSION

8. STATE DUTIES AND OBLIGATIONS

9. CONCESSIONAIRE’S CONSIDERATION

10. CONCESSION SERVICES – DUTIES AND OBLIGATIONS OF CONCESSIONAIRE

11. CONCESSION OPERATIONS – DUTIES AND OBLIGATIONS OF CONCESSIONAIRE

12. EVENTS IF APPLICABLE OTHERWISE DELETE ............................................................ Error! Bookmark not defined.

13. SPECIAL ACTIVITIES

14. INSERT TYPE OF CONCESSION FACILITIES AND INSERT TYPE OF CONCESSION PROPERTY

15. MAINTENANCE AND REPAIR

16. SUBORDINATION IF APPLICABLE OTHERWISE DELETE

17. NO TITLE IN LICENSE

18. WARRANTIES and REPRESENTATIONS

19. CONDITION ON EXPIRATION OR TERMINATION

20. EMINENT DOMAIN

21. CONFLICTS OF INTEREST

22. CASUALTY

23. INSURANCE

24. DEFAULT

25. REMEDIES

26. NOTICES and REPRESENTATIVES

27. STATE LIABILITY LIMITATIONS

28. GENERAL PROVISIONS

29. COLORADO SPECIAL PROVISIONS

30. SIGNATURE PAGE

31. EXHIBIT A (Concession Area Map) ...................................................................................... Error! Bookmark not defined.

32. EXHIBIT B (Park Map) .......................................................................................................... Error! Bookmark not defined.

33. EXHIBIT C () ......................................................................................................................... Error! Bookmark not defined.

1. PARTIES

This concession contract (hereinafter called “Contract”) is entered into by and between INSERT LEGAL NAME

OF PARTY (“Concessionaire”) as Concessionaire, and the State of Colorado acting by and through the Department of Natural Resources, for the use and benefit of the Division of Parks and Wildlife and the Parks and Wildlife

Commission (the “State” or “CPW”) as grantor of this concession. Concessionaire and the State hereby agree to the following terms and conditions.

2. EFFECTIVE DATE and NOTICE of NONLIABILITY

This Contract shall not be effective or enforceable until the Effective Date. The State shall not be liable for any performance under this Contract including or be bound by any provision hereof prior to the Effective Date.

3. RECITALS

A. Authority, Appropriation, and Approval

Authority to enter into this Contract exists in C.R.S. § 33-1-104, § 33-1-105, § 33-10-107, § 33-9-109, et seq.

Required approvals, clearances, and coordination have been accomplished from and with appropriate agencies.

B. Consideration

The Parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Contract.

C. Exhibits and other Attachments

The following are attached hereto and incorporated by reference herein: EXHIBIT A (Concession Area);

EXHIBIT B (Park Map); EXHIBIT C ( ); EXHIBIT D ( ); EXHIBIT E ( ); and EXHIBIT

F ( ).

D. Purpose

This Contract is entered into for the purpose of granting Concessionaire the right to operate a Yurt and Hut

Concession that provides the public with the opportunity to rent yurts and huts located within State Forest

State Park.

E. References

All references in this Contract to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted.

4. DEFINITIONS

The following terms as used herein shall be construed and interpreted as follows:

A. Alternative Fee

“Alternative Fee” means the fee charged for admission of Patrons attending or participating in an Event or

Special Activity as set forth in the then current CPW regulations pertaining to special activities requiring permits.

B. Artificial Noise

“Artificial Noise” means any vibration or audible sound generated by a human source not common to the Park.

C. Equipment

“Equipment” means five sixteen-foot yurts, three twenty-foot yurts, and two huts.

D. Concession Area

“Concession Area” means those portions of the Park where Concessionaire may operate the Yurt and Hut

Concession as depicted in EXHIBIT A.

E. Contract

“Contract” means this Contract, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Contract, and any future modifying agreements, exhibits, attachments or references incorporated herein pursuant to Colorado State law, Fiscal Rules, and State Controller Policies.

F. State Land Board

“State Land Board” means the Colorado State Land Board.

G. C.R.S.

“C.R.S.” means the Colorado Revised Statutes as amended.

H. Effective Date

“Effective Date” means the date on which this Contract is approved and signed by the State.

I. Electrical System

“Electrical System” means all substations, light polls, light boxes, warning lights, subpanels, and electrical lines as they exist in the Concession Area on the Effective Date of this Contract.

J. Goods

“Goods” means all tangible material that has been acquired, produced, or delivered by Concessionaire either separately or in conjunction with the Services Concessionaire renders under this Contract.

K. Gross Revenue

“Gross Revenue” means the total amount of income in cash or credits, excluding promotional material not re-sold, received by Concessionaire from all business done at the Yurt and Hut Concession and all gross revenues received from subcontractors, if any. Federal, state, and local sales tax are not included in this amount.

L. Human Advertising

“Human Advertising” means the use of individuals or groups to advertise by applying advertisements to their person, holding advertisements, or otherwise using humans as a means of attracting attention to

Concessionaire’s business to the extent of creating a public nuisance.

M. Improvements

“Improvements” means such permanent and or semi-permanent fixtures, facilities, structures, and earthwork not currently existing at the Concession Area, that are reasonably necessary for Concessionaire to fulfill its obligations under this Contract.

N. Yurt and Hut Concession

“Yurt and Hut Concession” means the operation of an onsite Yurt and Hut rental at the Park through the offering of Goods and Services for the purpose of providing the public with the opportunity to rent yurts and huts.

O. Yurt and Hut Parking Lot

“Yurt and Hut Parking Lot” means the area designated for parking by the State to service the Concession Area.

P. Yurt and Hut Patrons

“Yurt and Hut Patrons” means any person who purchases, rents, consumes, or otherwise uses any Goods or

Services offered by Concessionaire under the terms of this Contract at the Concession Area.

Q. Yurt and Hut Property

“Yurt and Hut Property” means all Equipment, Electrical System, Fixtures, Fueling Equipment, Utility

Fixtures, the Water and Sewer System, and INSERT OTHERS AS NEEDED.

R. Operating Equipment

“Operating Equipment” means such personal property such as tools, machinery, furniture, supplies, electronics, and other movable equipment not currently existing in the Concession Area and supplied by

Concessionaire as are reasonably necessary for Concessionaire to fulfill its obligations under this Contract.

S. Park

“Park” means the State Forest State Park, located in Jackson and Larimer County, Colorado as depicted in

Exhibit B.

T. Party or Parties

“Party” means the State or Concessionaire and “Parties” means both the State and Concessionaire.

U. Services

“Services” means those services Concessionaire is to provide to fulfill its obligations under this Contract, including those listed in §10.B.

V. Special Activities

“Special Activities” means: (1) any activity taking place outside the Concession Area; (2) activities which have the potential for a significant adverse impact on Park values or health, safety or welfare of Park visitors;

or (3) activities which may otherwise require special planning/ scheduling for proper management.

W. Staff

“Staff” means all employees, volunteers, agents, delivery personnel, representatives, and Subcontractors, paid or unpaid, engaged by, or associated with Concessionaire.

X. Subcontractor

“Subcontractor” means third-parties, if any, engaged by Concessionaire to aid in performance of its obligations under this Contract. For purposes of this Contract, “Subcontractor” includes but is not limited to, Sub-concessionaires.

Y. Sub-concessionaire

“Sub-concessionaire” means any individual or entity with whom Concessionaire enters into an agreement, formal or otherwise, to offer Goods and/or Services to Yurt and Hut Patrons.

Z. Use Charges

“Use Charges” means the regularly monthly charges incurred by Concessionaire for use of electricity, gas and water.

AA. Utility Fixtures

“Utility Fixtures” means the Water and Sewer System, gas, and Electrical System.

BB. Water and Sewer System

“Water and Sewer System” means all water lines, water system hookups, sewer lines, holding tanks, pump-out stations, and aeration systems as they exist in the Concession Area on the Effective Date of this Contract.

5. TERM and EARLY TERMINATION

A. Term

The term of this Contract shall be for a term of INSERT NUMBER OF YEARS years beginning on INSERT

COMMENCEMENT DATE, and ending on INSERT EXPIRATION DATE, unless sooner terminated as provided for herein.

B. Holdover and Extension Provisions

The provisions of this Contract in effect, including, but not limited to, consideration due under §9, shall remain in effect if Concessionaire holds over after the expiration of the initial term or any extension thereof.

6. GRANT OF CONCESSION

Subject to the terms and conditions set forth in this Contract, the State hereby grants to Concessionaire, including its employees, officers, agents, and other authorized parties, the right, and Concessionaire hereby assumes the obligation, to operate a Yurt and Hut Concession at the Park. Concessionaire may access and occupy the

Concession Area for the uses and purposes set forth in §3.D and shall have the exclusive right to operate and maintain the Yurt and Hut Concession at the Park. This grant is limited to the right of Concessionaire to use and possess the Concession Area, Yurt and Hut Facilities, and Yurt and Hut Property for the term set forth in §5.A, and does not, and shall not be construed, to grant Concessionaire an ownership interest in the Park, Concession Area, Improvements, Yurt and Hut Facilities, or Yurt and Hut Property, or otherwise entitle Concessionaire to any compensation of any kind.

7. USE OF CONCESSION

The grant of concession set forth in §6, shall be for the use and benefit of the public frequenting the Park.

Concessionaire shall not use the Concession Area, Yurt and Hut Facilities, Yurt and Hut Property, or Improvements solely for private gain, but shall provide them to the public for its use.

8. STATE DUTIES AND OBLIGATIONS

The State shall provide Concessionaire the Park services and property set forth in this §8. The State shall not have any other duty, obligation, or responsibility towards Concessionaire, expressed or implied, except as provided for in this §8.

A. Approval of Offerings

The State shall have the right to approve the articles for rent or sale, the Services and Goods offered, and the price at which they may be rented, sold, or used.

B. Concession Area

Concessionaire shall have access to and use of the Concession Area as it currently exists including use of Yurt and Hut Facilities and Yurt and Hut Property.

C. Park Access

Concessionaire’s Staff and other approved personnel may access the Park without charge while in performance of their obligations and duties under this Contract.

D. Park Closure

The State may close the Park when deemed necessary and has established limits of visitation at the Park, based on public safety, and the number of parking spaces available at any given time. Any enforcement by the State of these limitations shall not be considered a breach of this Contract nor shall it limit Concessionaire’s obligations under this Contract. The State may temporarily close the Concession Area, or otherwise suspend operations in the Concession Area if conditions at the Park, whether natural, budgetary, or man-made, create an unreasonable risk to the public as determined by the State in its sole discretion. The State shall provide immediate notice of such closure if the State exercise its rights under this §8.D.

E. Rule and Regulation Enforcement

The State shall not grant special treatment to Concessionaire or Yurt and Hut Patrons in the enforcement of rules, regulations, or policies of the Park.

F. State Access

The State shall have full right and authority to enter any area, building, or property in the Concession Area for inspection purposes and to enforce all laws and regulations of the State, or for any other lawful purpose.

G. Special Events

The State shall provide Concessionaire with notice of special events held by the State or a third party within the Park that, at the Park’s determination, has the potential to impact Concessionaire’s operation of the Yurt and Hut Concession. Such special events are permitted and shall not be considered an interference with

Concessionaire’s performance at the Yurt and Hut Concession.

H. Utility Fixtures

The State shall provide and maintain Utility Fixtures to the Concession Area as they exist on the Effective

Date of this Contract up to the point of demarcation as designated by the State and set forth in EXHIBIT

. Concessionaire shall be solely responsible for Use Charges of utilities at the Concession Area.

9. CONCESSIONAIRE’S CONSIDERATION

Concessionaire shall, in accordance with the provisions of this §9, pay the State rent, fees, and any other amounts due hereunder in the amounts and using the methods set forth below:

A. Annual Fee

Concessionaire shall pay the State an annual fee of $1,500 on or before the Effective Date and on or before the anniversary of the Effective Date every year thereafter.

B. Administrative Fee

Concessionaire shall pay the State an administrative fee of $500 on or before the Effective Date.

C. Gross Revenue

Concessionaire shall pay the State a monthly fee of INSERT PERCENTAGE% of its Gross Revenue as shown in the monthly report required in §11.G.ii. Concessionaire shall submit payment pursuant to this §9.C on or before the 15th day of each month for the preceding calendar month.

D. Interest and Late Fee

Concessionaire shall be liable for a late fee of $250 and interest on amounts due pursuant to this §9 not received by the State by the 20th of each month at a rate of 2% per month compounded monthly until paid in full.

E. Performance Deposit

i. Deposit

On the Effective Date of this Contract, Concessionaire shall pay to the State a performance deposit of $

INSERT AMOUNT.

ii. Use of Deposit

If Concessionaire defaults or fails to perform obligations under this Contract, the State may apply as much of the performance deposit as the State, in its sole discretion, deems is necessary to cure such default or failure to perform obligations. If the State applies any of the performance deposit under this

§9.D.ii, Concessionaire shall replenish the total performance deposit to $INSERT AMOUNT within 14 days.

iii. Return of Deposit

Any remaining balance of the performance deposit at the expiration or termination of this Contract shall be returned to Concessionaire without interest within 60 days, provided Concessionaire is not in default under this Contract and vacated the Concession Area in a timely manner.

F. Lost Revenue

Concessionaire operates the Yurt and Hut Concession at its own risk and shall, as part of its business operation, account for risks of lost revenue as a result of flood, drought, water levels, tornado, or other man-made and natural disasters. In no event shall Concessionaire’s payment obligations under this §9 be limited.

10. CONCESSION SERVICES – DUTIES AND OBLIGATIONS OF CONCESSIONAIRE

Concessionaire shall provide the following Goods and Services as part of this Contract:

A. Use of Concession Area

Concessionaire shall use or permit the use of the Concession Area only for the purpose set forth in §3.D and in accordance with this Contract. Concessionaire shall not conduct other businesses from the Concession Area or any other location in the Park.

B. Offered Services

Concessionaire shall provide the following Services and perform all tasks reasonably related thereto, and supply all reasonably related Goods, in a manner consistent with accepted practices for similar services, to-wit:

i. LIST REQUIRED SERVICES

a) DESCRIBE REQUIRED SERVICE

ii. LIST REQUIRED SERVICES

b) DESCRIBE REQUIRED SERVICE

iii. LIST REQUIRED SERVICES

c) DESCRIBE REQUIRED SERVICE

C. Rental Restrictions IF APPLICABLE OTHERWISE DELETE

Concessionaire shall deny rentals of any kind, including but not limited to, INSERT TYPES OF RENTALS to persons who appear to be intoxicated or under the influence of intoxicating liquors or narcotics, or who are rowdy or unruly, or whose condition may represent a hazard to their own life or property or the lives or property of others. Concessionaire may refuse service to anyone who fails to comply with Concessionaire or

Park policies.

D. Staff

Concessionaire shall ensure that anyone working or performing services in any capacity within the Concession

Area shall be in the direct employ of Concessionaire or is a Subcontractor. Concessionaire shall also be required to meet the following:

i. Appearance, Comportment, and Customer Service

Concessionaire’s Staff shall have a neat, clean, and sanitary personal appearance and Staff who come in contact with the public shall wear clothing or identification, approved by the State, that distinguishes them as part of Concessionaire’s Staff. Members of the public shall be treated in a courteous and professional manner. Concessionaire’s Staff shall not use improper language, be guilty of immoral, disreputable, or unbecoming conduct, or engage in objectionable activities at the Park. Concessionaire shall honor all reasonable requests for refunds by Yurt and Hut Patrons dissatisfied with Good or Services supplied by Concessionaire.

ii. Employee List

Concessionaire shall provide the State with an up-to-date list of all paid Staff on Concessionaire’s payroll on a quarterly basis.

iii. Staffing

Concessionaire shall provide staffing sufficient to provide the highest quality customer service and to meet its obligations under §10.B. Concessionaire shall plan staffing in advance and anticipate special events, holidays, and the like that may require additional staffing.

iv. Supervisor Concessionaire shall provide a competent and trained supervisor who shall be on duty at all times during operational hours.

E. Goods

Concessionaire shall offer for sale to the public all Goods reasonably related to the Services offered. The State, in its sole discretion, may prohibit Concessionaire from selling any Goods not reasonably related to Services offered or which are offensive to public morals.

F. Hours of Operation

Subject to weather conditions, Concessionaire shall operate the Yurt and Hut Concession and provide Goods and Services daily from INSERT MONTH AND DAY through INSERT MONTH AND DAY of each year.

For the remainder of the year, Concessionaire shall maintain necessary operations including responding to customer inquiries, websites, etc. Concessionaire shall, at a minimum, operate during the following hours, unless adjusted by written agreement with the Park manager:

i. Peak Season Hours

From INSERT BEGINNING OF PEAK SEASON (MEMORIAL DAY?) to INSERT END OF PEAK

SEASON (LABOR DAY) of each year, Concessionaire shall operate the INSERT TYPE OF

CONCESSION Concession from 9:00 a.m. until 5:00 p.m.

ii. Off-Peak Season Hours

For all days falling outside the peak hours set forth in §10.F.i, Concessionaire shall operate a minimum of

INSERT NUMBER OF HOURS hours Wednesday through Sunday for the remainder of the minimum season described in this §10.F.

iii. Additional Hours

Concessionaire may operate the Yurt and Hut Concession beyond the minimum hours and dates set forth in this §10.F as Concessionaire deems appropriate.

G. Pricing

Concessionaire shall price all Goods and Services competitively with similar Goods and Services offered to the public. All pricing shall be approved by the State pursuant to the approval process set forth in §11.G.iii.

Concessionaire shall be allowed an emergency price escalation with approval by the State during the operating season if actual costs of Goods or Services delivered are demonstrated to have increased. Concessionaire shall post all rules and rates for all Goods and Services offered by Concessionaire in locations visible to Yurt and

Hut Patrons. Concessionaire may make arrangements regarding rates or discounts on Goods and Services with any person(s) or organization(s), provided that such discounts are not greater than 50%. Concessionaire shall receive written approval from the State for any discount greater than 50%.

H. Accessibility

Concessionaire shall comply with the Americans with Disabilities Act at all times during the performance of this Contract. Concessionaire shall make and ensure that all Services, Yurt and Hut Property, and Yurt and Hut

Facilities are accessible to persons with disabilities as required by the Americans with Disabilities Act.

I. Non-Discrimination

Concessionaire shall be required to practice non-discrimination in the furnishing of Goods and Services to the public. Concessionaire shall not refuse service to the public without reasonable cause.

11. CONCESSION OPERATIONS – DUTIES AND OBLIGATIONS OF CONCESSIONAIRE

A. Alcohol

i. Location

Concessionaire shall not serve alcohol, or permit Yurt and Hut Patrons to possess or consume alcohol purchased or otherwise provided by Concessionaire outside the Alcohol Service Boundary.

ii. Time

Concessionaire shall terminate the sale of alcohol no later than INSERT TIME p.m. If an Event ends prior to INSERT TIME p.m., Concessionaire shall terminate alcohol sales 30 minutes prior to the scheduled end of that Event.

B. General Restrictions

i. Decorations

Concessionaire shall limit all decorations to inside the Concessions Area and shall receive approval by the

State prior to displaying decorations.

ii. Light Pollution

Concessionaire shall minimize all light pollution in the Concession Area. If, at the sole discretion of the

State, the State determines that light pollution is causing a loss of enjoyment to other Park visitors or disrupting uses to the rest of the Park generally, Concessionaire shall reduce any light pollution causing such disruption. If the problem persists, the State may terminate the Event or operations causing said light pollution without further notice.

iii. Location of Activities

Any activity that, in whole or in part, occurs outside the Concession Area shall be handled under the

State’s Special Activities Policy. Operations of a Sub-concessionaire, routine or not, occurring outside the

Concessions Area require prior approval by the State on an annual basis.

iv. Motor Vehicles

Concessionaire’s use of motor vehicles related to the Yurt and Hut Concession is limited to vehicles identified in those certificates of automobile liability insurance provided to the State.

v. LIST OTHER RESTRICTIONS AS NEEDED

DESCRIE OTHER RESTRICTIONS AS NEEDED

C. Management

i. Glass Prohibition

Concessionaire shall ensure that no items dispensed within the Concession Area are in glass containers.

ii. Landscaping

Concessionaire shall landscape the Concession Area and develop and implement a maintenance and operation plan for landscaping throughout the Concession Area. Said plan shall include weed control and maintenance of existing landscaping.

iii. Natural Conditions

Concessionaire shall monitor and evaluate fluctuating water, ice, and all weather conditions at all times and appropriately regulate Yurt and Hut Patron access to the Concession Area to ensure a safe environment in the Concession Area. Concessionaire shall inform the Park manager, or a designee, immediately regarding any safety issues caused by a condition described under this §11.C.v.

iv. Patron Conduct

Concessionaire shall be responsible for the proper conduct of Yurt and Hut Patrons while in the

Concession Area. Concessionaire shall ensure good behavior and conduct by all Yurt and Hut Patrons with full recognition of the rights and privileges of other Park visitors. Concessionaire may request Yurt and Hut Patrons who violate the rules and regulations of good conduct to leave the Concession Area.

v. Public Safety

Concessionaire shall comply with a State suspension request made in accordance with §8.D.

Concessionaire may temporarily suspend operations in the Concession Area if conditions (natural or man-caused) represent an unreasonable risk to the public. If Concessionaire suspends operations pursuant to this §11.C.vii, Concessionaire shall notify the Park manager within 24 hours. Concessionaire shall commence operations immediately following the removal or cessation of the hazard causing the temporary suspension.

vi. Reservations

Concessionaire shall include a provision in any agreement with Yurt and Hut Patrons which states that

Yurt and Hut Patrons do not have preemptory rights over other visitors to access the Park, or portions of the Park, in the event the Park, portions of the Park, or access to the Park is temporarily closed or otherwise restricted.

vii. Security

Concessionaire shall secure the Concession Area, including but not limited to, maintaining existing fences and by restricting access to the rental docking area to Yurt and Hut Patrons, Park staff, and

Concessionaire’s Staff.

viii. Trash Services

Concessionaire shall provide trash services for the Concession Area and at minimum, shall provide

INSERT NUMBER six-yard dumpster. Said dumpster shall be placed in the Concession Area and shall be accessible to Yurt and Hut Patrons.

ix. Utilities

Concessionaire shall directly arrange with the respective utility providers (such as water, gas, electric, and cable) to connect all utilities it needs or desires to operate the Yurt and Hut Concession. Concessionaire shall be solely responsible for working directly with said utility providers and for payment to such utility providers. Concessionaire shall maintain meters to determine use levels if so required by the utility provider. Concessionaure may, with State approval, extend utility services from currently existing Utility

Fixtures to service points.

x. Waste

Concessionaire shall develop and implement a hazardous material management plan, approved by the

State, for handling hazardous waste, including petroleum products. All hazardous waste generated by

Concessionaire, Concessionaire’s Staff, or Yurt and Hut Patrons shall be disposed of by Concessionaire in a proper manner consistent with said plan. Concessionaire shall keep and maintain current at all times hazardous waste disposal records which are to be readily available for inspection by State personnel.

D. Noise

All Artificial Noise and acoustical music shall be contained to the Concession Area. If at any time, at the sole discretion of the State, the State determines that noise is causing a loss of enjoyment to other Park visitors or disrupting uses in the rest of the Park generally, Concessionaire shall reduce any noise causing such disruption.

If the problem persists, the State may terminate the Event or operation causing the noise without further notice.

E. Operating Equipment

Concessionaire shall provide all necessary Operating Equipment required for the operation of the Yurt and Hut

Concession, Yurt and Hut Facilities, and Yurt and Hut Property. Concessionaire shall supply all Operating

Equipment in accordance with industry safety standards.

F. Parking

i. Concessionaire Parking

Concessionaire shall restrict all parking for Staff to the spaces designated by the State in the Yurt and Hut

Parking Lot. All vehicles belonging to Staff shall prominently display Concessionaire employee hang tags in their vehicle.

ii. Snow Removal

Snow removal in the Concession Area shall be performed in accordance with the Park snowplowing policy as it currently exists in EXHIBIT or as it may exist in the future. Concessionaire is solely responsible for any additional snowplowing at its sole expense.

iii. Visitor Use

All Yurt and Hut Patrons and Staff shall display a valid parks pass unless they enter the Park under the alternative fee arrangement described in §Error! Reference source not found., displaying a hang tag pursuant to §11.F.i, or have entered under another arrangement approved by CPW.

G. Records and Reports

Concessionaire shall keep, maintain, and provide to CPW the following books, records and reports:

i. Initial Records

On or before the Effective Date, Concessionaire shall provide the State with a copy of all insurance required by §22, accounting systems required by §11.G.iv, workers compensation coverage of all employees, and tax certificates.

ii. Monthly

Concessionaire shall submit to the Park manager a monthly report, on or before the 15th day of each month, for the preceding calendar month. The report shall show daily revenues from all sources, taxes collected, totals for the month, and the commission due to the State based on the percentage fee set forth in §9.C.

iii. Annual

Concessionaire shall provide the State with an annual report, on or before January 31 of each year, for the preceding calendar year. The annual report shall summarize Concessionaire’s operations for the previous year including: the Services provided, the Goods sold, and all sources of income and expenses. Said annual report shall also include the following information submitted for approval by the State for the then current calendar year: a comprehensive list of Goods, Services, prices, maintenance schedule, Yurt and

Hut Patron contracts, and an operation and maintenance plan. Concessionaire shall provide further detail on any item summarized in such annual report within 30 days of request by the State and provide any information not contained in the report which the State requests.

iv. Gross Revenue

Concessionaire shall install and keep books and records detailing its Gross Revenue and expenditures in accordance with generally accepted accounting procedures. Said books shall be open to inspection by

CPW or its authorized representative during normal business hours and upon reasonable notice.

Concessionaire and any Subconcessionaire shall submit said books to CPW for audit at such times and place as CPW may direct. If such records and books are not maintained in a manner consistent with good and generally accepted accounting principles, methods, and procedures, CPW may require Concessionaire to maintain them under the supervision of an independent, certified public accountant.

v. Method

All sales and rentals shall be recorded by cash registers or other electronic means displaying the amount of the sale to Yurt and Hut Patrons and that automatically issue receipts certifying the transaction amount, and which are equipped with devices that lock in the sales and rentals totals, transactions records, produce duplicate audit tapes, contain counters which cannot be reset and which record the transaction numbers and details thereof on such tape. Errors shall be noted by Concessionaire on the audit tape with an explanation.

vi. Tax Returns

Concessionaire shall provide copies of all federal, State, and local tax returns, including, but not limited to income tax and sales tax returns, to CPW for review within 15 days of request by CPW.

vii. Subcontractors

Concessionaire shall require any of its Subcontractors to comply with all provisions of this §11.G.

H. Signs, Notices, and Advertising

Concessionaire shall obtain written approval from the State as to design, content, and location of reasonable signage to be placed on or about the Concession Area advertising its Goods and Services. Prior to being displayed, distributed, advertised, or posted in any location or forum, Concessionaire shall submit to the State, and obtain from the State, written approval for all notices to the public, including but not limited to stationary, brochures, post cards, press releases, display advertising and other like material that Concessionaire intends to use in connection with this Contract, or any advertising in any manner or form located on the Premises, or in any newspaper or otherwise. Said approvals may be obtained during the annual approval process required by

§11.G.iii. Concessionaire shall not utilize Human Advertising in any manner. The requirements of this §11.H shall not apply to responses of Concessionaire to inquires made by the general public.

I. Spill Response

Concessionaire shall provide and possess a state approved fuel or hazardous materials spill response kit capable of absorbing at least 95 gallons of petroleum based liquids. If a spill is caused by Fueling Equipment or Yurt and Hut Patrons, Concessionaire shall appropriately respond and resolve said spill to the best of

Concessionaire’s ability. Concessionaire shall allow the State to use the spill response kit in an emergency.

After any such emergency requiring the State to use Concessionaire’s spill response kit, the State shall restock the kit or otherwise compensate Concessionaire for the cost of replacing said spill response kit, unless the State is acting in place of Concessionaire, at which point Concessionaire shall be responsible for the cost of replacing the spill response kit.

12. SPECIAL ACTIVITIES

Concessionaire may allow for certain, State-approved special activities to take place pursuant to the requirements set forth in the then current Division of Parks and Wildlife Special Activities Policy. Since such policy is subject to change, Concessionaire shall be responsible for knowing the current special activities policy.

13. YURT AND HUT FACILITIES AND YURT AND HUT PROPERTY

A. Existing Yurt and Hut Facilities and Yurt and Hut Property

Concessionaire may, at Concessionaire’s sole cost and expense, use the existing Yurt and Hut Facilities and

Yurt and Hut Property located at the Concession Area on the Effective Date of this Contract. Concessionaire shall accommodate up to INSERT NUMBER CPW sponsored events annually in the Concessions Area. CPW shall give Concessionaire at least 30 days advance written notice of a date CPW has selected pursuant to this

§13.A. Concessionaire waives all event or facility fees for events sponsored by the State. The State shall be responsible for the cost of all Goods utilized by the State for a CPW sponsored event under this §13.A.

B. Improvements

Concessionaire may, at Concessionaire’s sole cost and expense, and as part of a business decision for which it is solely responsible financially and otherwise, build, construct, or otherwise supply Improvements to the

Concession Area, subject to the following conditions:

i. Ownership

All Improvements made to the Concession Area become the sole property of the State. Concessionaire shall not have any ownership interest or make any claim of ownership over Improvements, or otherwise dispute the State’s ownership of Improvements. Concessionaire may not remove Improvements supplied to the Concession Area unless directed as set forth in this §13.B.

ii. Approval

a) State

Concessionaire shall request written approval from the State prior to making Improvements to the

Concession Area. Concessionaire shall provide the State with the following information:

architecture plans, engineering plans, appearance plans, estimated cost, proposed schedule, hired contractors, permits, construction schedule, completion date, and any other information requested by the State. The State, in its sole discretion, with or without cause, may approve or deny any request. Such approval or denial shall be in writing and issued within 60 days of the date the State received the request. Any request not approved or denied within such 60 days is deemed denied.

b) State Land Board

In addition to the approval requirements of §13.B.ii.a), Concessionaire shall receive appropriate written approval from the State Land Board in advance of making Improvements to the Concession

Area if the State or State Land Board determines that State Land Board approval is required.

c) Engineer Approval

Concessionaire shall obtain approval from an engineer licensed and certified in the State of

Colorado on final plans and construction of Improvements for those Improvements requiring an engineers stamp. Said engineer shall be approved by the State. After construction of an

Improvement is complete, the engineer shall provide the State with a certificate stating that the structural integrity of the Improvement is sound and the Improvement is safe for public use.

iii. Standards

All architectural, engineering, and appearance plans shall meet the appearance standards set forth by the

State and State Land Board. Improvements shall also meet the conditions and requirements of the Omaha

District Land Use Development Policy (LUPD).

iv. Permitting

All applicable local and county permitting is required as part of the approval process including but not limited to: fire safety, storm water, and building permits.

v. Improvements at Expiration or Termination

a) Removal

At the expiration or the termination Date of this Contract, the State may require Concessionaire to remove any Improvements placed on the Concession Area. If the State elects to require

Concessionaire to remove Improvements, removal shall be done within 90 days of the date of expiration or termination. If Concessionaire fails to remove Improvements in accordance with this

§13.B.v.a), the State may have such Improvements removed and Concessionaire shall be solely liable to reimburse the State for the cost of such removal. Upon removal of Improvements, Concessionaire shall restore the land to the condition in which it existed prior to the placement of

Improvements.

b) No Compensation

Concessionaire supplies any Improvements as part of a business decision for which it is solely responsible, and at its own financial risk. Concessionaire shall not be compensated, in any form, for any Improvements made under this §13.B. Concessionaire recognizes that Improvements shall be considered a normal business expense of Concessionaire of which Concessionaire is solely responsible. The State shall not, under any circumstances, be liable, responsible, or otherwise subject to providing compensation or reimbursement of any kind, for Improvements constructed under §13.B, or removed under §13.B.v.a).

vi. Operating Equipment at Expiration or Termination

Concessionaire shall remove all Operating Equipment and personal property from the Concession Area within 60 days of the expiration or termination of this Contract. Any Operating Equipment and personal property remaining after 60 days from the termination or expiration of this Contract shall become the property of the State and Concessionaire shall give up all rights and title in said Operating Equipment and personal property. Concessionaire shall not have any right or claim to reimbursement, payment, or compensation of any kind for any Operating Equipment and personal property vesting with the State in accordance with this §13.B.vi. If Concessionaire fails to remove Operating Equipment and personal property in accordance with this §13.B.vi, the State may have them removed and Concessionaire shall be solely liable to reimburse the State for the cost of such removal.

C. Modifications

The provisions of §13.B shall also apply to modifications, rehabilitation, or any other change to existing or additional Yurt and Hut Facilities and Yurt and Hut Property.

14. MAINTENANCE AND REPAIR

A. Concession Area Generally

Concessionaire shall keep the Concession Area, including but not limited to, the Yurt and Hut Property, Yurt and Hut Parking Lot, and Improvements in good repair and working order during the term of this Contract.

B. Yurt and Hut Property and Yurt and Hut Facilities

The State is providing all Yurt and Hut Facilities and Yurt and Hut Property in “as is” condition and the State is not obligated to upgrade or perform any repairs before or after the Effective Date.

i. Maintenance and Repair

Concessionaire shall, at its own cost and expense, keep the Yurt and Hut Facilities and Yurt and Hut

Property in the same or better condition in which it was received by regularly maintaining and repairing the same. In order to ensure that a high standard of physical appearance, operations, repair and maintenance is assured, the State may carry out appropriate inspections to determine if such maintenance and repair are acceptable.

ii. Replacement

All loss and/or damage to Yurt and Hut Facilities and Yurt and Hut Property shall be dealt with in accordance with this §14.B.ii.

a) Claim under State Insurance Program

In the event of loss or damage to Yurt and Hut Facilities or Yurt and Hut Property, the State shall submit a claim under the State self-insured property fund for loss or damage caused by any of the hazards set forth in C.R.S. § 24-30-1510.5(5). The State shall only be required to submit a claim under this §14.B.ii for hazards covered under C.R.S. § 24-30-1510.5(5) as it currently exists or may hereafter be amended. This §14.B.ii.a) shall not be construed to expand any of the limitations existing under C.R.S. § 24-30-1510.5 regarding claims for loss or damage.

b) Coverage

Pursuant to C.R.S. § 24-30-1510.5(3), claims for loss or damage to real property shall be based on replacement cost and claims for loss or damage to personal property shall be based on actual cash value.

C. Improvements

If Concessionaire exercises its right to construct Improvements pursuant to §13.B, Concessionaire shall, at its own cost and expense, keep the Improvements in the condition in which they were constructed by regularly maintaining and repairing the same. The State shall not be responsible for Improvements or upgrades to the

Improvements.

i. Replacement – Fully Constructed

In the event of loss or damage to a completed Improvement, replacement of said Improvement shall occur in accordance with §14.B.ii, so long as the following conditions are met:

a) Approval

The Improvement was approved, in writing, by the State in accordance with §13.B.ii.

b) Notification

Concessionaire informed the State, in writing, that the Improvement has been fully constructed and supplied the State with documentation of the actual costs incurred for constructing said

Improvement.

ii. Replacement – Partial Construction

In the event of loss or damage to a partially constructed Improvement, Concessionaire shall be solely responsible for all costs.

15. SUBORDINATION

This Contract is subject and subordinate to the lease between the State Land Board and the State regarding the administration and development of certain lands and facilities located on the Park, and any amendments thereof. An abridged copy of said lease is attached hereto as EXHIBIT . In the event of the termination of the lease between the State Land Board and the State, the State Land Board shall be deemed to stand in the stead of the State as grantor for the remainder of the term of this Contract; provided however, in the event of such termination, the

State Land Board may, at any time within 90 days thereafter, terminate this Contract by giving Concessionaire 60 days written notice. Should the State Land Board terminate this Contract pursuant to this §15, the State Land Board shall have the same rights set forth in this Contract as the State, including the ownership rights set forth in §13.B.i.

16. NO TITLE IN LICENSE

This Contract does not and shall not be construed to vest in Concessionaire title, tenure, or any property rights in the real estate, Fixtures, or any personal property belonging to the State or the United States now located or which may hereafter be located in or around the premises occupied by Concessionaire or anyone employed by

Concessionaire.

17. WARRANTIES and REPRESENTATIONS

Concessionaire makes the following specific representations and warranties, each of which was relied on by the

State in entering into this Contract.

A. Authority

Concessionaire warrants that it possesses the legal authority to enter into this Contract and that it has taken all actions required by its procedures, by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Contract and to bind Concessionaire to its terms. The person signing and executing this Contract on behalf of Concessionaire hereby represents, warrants, and, guarantees that they have full authorization to do so. If requested by the State, Concessionaire shall provide the

State with proof of Concessionaire’s authority to enter into this Contract within 15 days of receiving such request.

B. Business, Financial, and Legal Decisions

Concessionaire represents that its decision to enter into this Contract was made after careful deliberation, that

Concessionaire has received advice from trusted and sophisticated business advisors before entering into this

Contract, and that Concessionaire received such independent legal and financial advice regarding this Contract as Concessionaire deemed necessary and prudent, and based thereon, and upon Concessionaire and

Concessionaire’s principal’s informed judgment, Concessionaire voluntarily entered into this Contract.

C. Licenses, Permits, Etc.

Concessionaire represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have and maintain, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorizations required by law to perform its obligations hereunder. Concessionaire warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Contract, without reimbursement by the State or other adjustment in Contract

Funds. Additionally, all Staff performing Services under this Contract shall hold all required licenses or certifications, if any, to perform their responsibilities. Concessionaire, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for

Concessionaire to properly perform the terms of this Contract is a material breach by Concessionaire and constitutes grounds for termination of this Contract.

D. Standard and Manner of Performance

Concessionaire warrants and represents that Concessionaire has the requisite skills, experience, and means to perform Concessionaire’s obligations under this Contract, including, but not limited to, those listed in §10 and

§11, and shall perform such obligations in accordance with the highest standards of care, skill and diligence in

Concessionaire’s industry, trade, or profession and in the sequence and manner set forth in this Contract.

18. CONDITION ON EXPIRATION OR TERMINATION

At the expiration or termination hereof, Concessionaire shall surrender and deliver the Concession Area in as substantially good order and condition as exists at the inception hereof; excepting however, loss by fire, inevitable accident, acts of God, damage or neglect attributable to the State, and ordinary wear and tear.

19. EMINENT DOMAIN

If the Concession Area shall be taken by right of eminent domain, in whole or in part, for public purposes, then this

Contract, at the option of either Party, shall forthwith cease and terminate. In such event, the entire damages which may be awarded for such taking shall belong to the State.

20. CONFLICTS OF INTEREST

Concessionaire shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Concessionaire’s obligations hereunder. Concessionaire acknowledges that with respect to this Contract, even the appearance of a conflict of interest is harmful to the

State’s interests. Absent the State’s prior written approval, Concessionaire shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Concessionaire’s obligations to the State hereunder. If a conflict or appearance exists, or if Concessionaire is uncertain whether a conflict or the appearance of a conflict of interest exists, Concessionaire shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the apparent conflict constitutes a breach of this Contract.

21. CASUALTY

If the property is damaged by fire, flood, or other casualty, Concessionaire may terminate this Contract within 30 days of the date Concessionaire becomes aware of such occurrence if, in the opinion of Concessionaire, the

Concession Area has been so damaged as to render it wholly or partially untenable or unfit for Concessionaire’s purposes. If Concessionaire so elects, it shall terminate this Contract by giving written notice to the State as provided in §25. Such termination shall be effective 30 days from the date of mailing of the notice of termination.

22. INSURANCE

Concessionaire shall obtain and maintain insurance as specified in this §22 at all times during the term of this

Contract. Concessionaire shall also require each contract with Subcontractors other than those that are public entities, providing Goods or Services in connection with this Contract, to include insurance requirements substantially similar to those required in this §22.