License Agreement - Shellbank Restaurant Corp. and City of New York
[Logo] City of New York The Arsenal
Parks & Recreation Central Park
New York, New York 10021
Henry J. Stern
Commissioner
LICENSE AGREEMENT
BETWEEN
SHELLBANK RESTAURANT CORP.
AND
CITY OF NEW YORK
PARKS & RECREATION
BATTERY PARK RESTAURANT FACILITY
DATED: Dec '94
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TABLE OF CONTENTS
PAGE
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SECTION 1 GRANT OF LICENSE........................................ 2
SECTION 2 DEFINITIONS............................................. 5
SECTION 3 TERM OF LICENSE......................................... 11
SECTION 4 PAYMENT TO CITY......................................... 12
SECTION 5 CAPITAL IMPROVEMENTS.................................... 15
SECTION 6 UTILITIES AND PUBLIC TELEPHONE SERVICE.................. 26
SECTION 7 OPERATIONS.............................................. 27
SECTION 8 MAINTENANCE, SANITATION AND REPAIRS..................... 38
SECTION 9 APPROVALS............................................... 40
SECTION 10 RESERVATION FOR SPECIAL EVENTS.......................... 40
SECTION 11 ASSIGNMENTS AND SUBLICENSES............................. 42
SECTION 12 RESERVATION FOR PARKS CONSTRUCTION...................... 44
SECTION 13 GENERAL PROVISIONS INCORPORATED......................... 46
EXHIBIT A GENERAL PROVISIONS
EXHIBIT B SCHEDULE OF CAPITAL IMPROVEMENTS
EXHIBIT C SITE PLAN
EXHIBIT D EMPLOYEE UNIFORMS
EXHIBIT E APPROVED MENU, MERCHANDISE PRICE LIST AND
OPERATING HOURS
EXHIBIT F SIGNAGE
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LICENSE AGREEMENT made this ____ day of ____________ 1994,
between the City of New York (the "City") acting by and through Henry J. Stern,
Commissioner of the Department of Parks and Recreation ("Commissioner" and
"Parks", "Department" or "DPR" respectively), whose address is The Arsenal,
Central Park, New York, New York 10021, and Shellbank Restaurant Corp.
("Licensee") a corporation organized under the laws of the State of New York,
with principal office is 1163 Forest Avenue, Staten Island, NY 10310.
W I T N E S S E T H:
WHEREAS, Parks, pursuant to the City Charter, has jurisdiction
over parklands of the City of New York and facilities therein including Battery
Park and certain buildings therein, located in the Borough of Manhattan; and
WHEREAS, the Commissioner desires to provide food service in
Battery Park in the form of a restaurant (the "Restaurant") as well as the
provision of rest room facilities for the public and the relocation of a Parks
maintenance facility to a reconstructed facility in Battery Park; and
WHEREAS, the Licensee has expressed its willingness, intent
and capability to supply the services which the Commissioner desires to provide;
and
WHEREAS, Parks complied with the requirements of the Franchise
and Concession Review Committee ("FCRC") for the selection of concessionaires
including the issuance of a Request
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for Proposals (RFP) for the operation and maintenance of the Restaurant and the
conduct of a public hearing regarding the intent to award a license agreement
upon the terms and conditions contained herein.
NOW THEREFORE, in consideration of the premises and covenants
contained herein, the parties hereby do agree as follows:
SECTION 1
GRANT OF LICENSE
1.1 The Commissioner hereby grants to Licensee and Licensee
hereby accepts from Commissioner this License ("License") to reconstruct and
operate certain facilities including a restaurant in Battery Park in accordance
with the terms herein and to the satisfaction of the Commissioner.
1.2 Licensee is required to perform capital improvements with
a value of Eight Hundred Fifty-one Thousand dollars ($851,000,000) as described
on the Schedule of Capital Improvements annexed hereto as Exhibit B including,
but not limited to renovation to the following:
(a) Renovation of the restaurant building, identified
as Building A ("Building A") in Exhibit C, annexed hereto, including
improvements to the roof top to accommodate public dining;
(b) Renovation of the kiosk, identified as Building B
("Building B") in Exhibit C, annexed hereto, including
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improvements to accommodate the Licensee's merchandise shop, souvenir boutique
and/or food and beverage service operations;
(c) Reconstruction of the existing comfort station,
identified as Building C ("Building C") in Exhibit C, annexed hereto, including
construction on the site of a new facility to accommodate Parks offices and
Parks staff rest rooms and changing areas.
1.3 Licensee shall complete renovations to Building A and
operate, maintain and manage the Restaurant Facility in and adjacent to Building
A at its sole cost and expense. Operation, maintenance and management
obligations shall include the following:
(a) the operation and maintenance of a snack bar,
incorporating a fast food walk-away concession with merchandise sales on the
first floor of Building A, sit-down restaurant service on the second floor of
Building A and, weather permitting, sit-down patio restaurant service adjacent
to the first floor of Building A;
(b) the provision and ongoing maintenance of a large
rest room facility in Building A, which shall be directly accessible to the
members of the general public who are not restaurant customers;
(c) the maintenance and cleaning of all areas within
100' of the limit lines as illustrated in Exhibit C, Site Plan annexed hereto
and made a part hereof.
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1.4 At its sole cost and expense, Licensee shall complete
renovations to Building B and provide a merchandise shop, souvenir boutique,
tourist information center and/or food and beverage service operation in
Building B.
1.5 At its sole cost and expense, Licensee shall substantially
rehabilitate Building C and therein provide a reconstructed facility for the
Parks Department designed to accommodate office, equipment storage and training
rooms as well as separate staff restrooms, shower rooms and changing areas for
women and men Parks Department personnel.
1.6 Licensee shall maintain the entire Licensed Premises
within the limit line, as illustrated on Exhibit C, Site Plan, annexed hereto
and made a part hereof. Maintenance shall include any and all daily, regular or
routine maintenance or repair necessary, as required by the Commissioner, to
keep the premises clean and free of dirt and litter within a one hundred (100)
foot radius of Building A and Building B so that the Licensed Premises are
capable of being used by the public as a first class facility. Subject to the
provisions of Section 10 herein, Parks has not and will not issue other licenses
or permits for food and beverage service or merchandise sales within the
Licensee's maintenance and cleaning areas of responsibility, provided Licensee
performs its obligations under this License to the Commissioner's reasonable
satisfaction.
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1.7 This license is granted to Licensee provided Licensee
obtains any and all approvals, permits, and other licenses required by federal,
state and City laws, rules, regulations and orders and approvals necessary to
operate the facility in accordance with the terms of this License. In order to
be in compliance with this License Agreement, Licensee must fulfill the
obligations contained within this Section 1. Commissioner may deem as a default
Licensee's failure to provide said services for any reason within the control of
the Licensee.
SECTION 2
DEFINITIONS
2.1 As used throughout this License, the following terms shall
have the meanings set forth below:
(a) "Substantial Completion" or "Substantially
Complete" shall mean that the Commissioner certifies that the Restaurant or
maintenance facilities have been completed substantially in accordance with the
plans, specifications, schematics, working and mechanical drawings approved by
Parks, notwithstanding that minor work remains to be completed in accordance
with work schedule provided for herein and/or set forth as "Punch List" items as
provided for in Section 5.18 herein and that the Recreation Facility may be
opened to the public.
(b) "Final Completion" or "Finally Complete" shall
mean that the construction of the Recreation Facility has
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been completed to such an extent that the Commissioner of Parks certifies that
it has been finally completed and no further work is required by Licensee
pursuant to this Agreement in connection with the construction of said facility.
Notwithstanding the issuance of any such certification, Licensee shall be liable
for any claims related to such construction and shall be responsible for any
other responsibility (including maintenance, repair and indemnity) set forth in
this Agreement.
(c) "Year," or "Operating Year" shall mean the period
between the anniversary of the Fee Commencement Date of this License in any
calendar year and the day before the anniversary of the Fee Commencement Date of
this License in the following calendar year.
(d) "Licensed Premises" shall mean the areas denoted
on Exhibit C annexed hereto and made a part hereof, and shall be deemed to
extend to the limit lines surrounding Building A and Building B, Building C for
the purposes of completing the reconstruction work for Parks use, all sidewalks,
curbs, pathways, trees, landscaping, and other improvements within said limit
lines. The Licensed Premises are located in Battery Park, Block 3, Lot 1,
Borough of Manhattan, New York, New York. At its sole cost and expense, Licensee
shall maintain the entire Licensed Premises, provided that the Licensee shall
not maintain utility lines between the Licensed Premises and the main utility
trunk lines under the streets, except insofar as the Licensee may
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alter or connect to utility service lines in order to complete its Capital
Improvements program as provided in Section 5 of this License Agreement.
(e) "Capital Improvements" shall mean all
construction, reconstruction or renovation of the Licensed Premises whether
performed directly by the Licensee or by subcontractors or agents of the
Licensee. Capital Improvements shall not include routine maintenance and repair
of existing facilities required to be performed in the normal course of
management and operation of the Restaurant Facility or Parks Facility.
(f) "Restaurant Facility" shall mean both the main
building and the kiosk, Buildings A and B respectively. Notwithstanding any
rights to assign or sublicense the Restaurant Facility and operations pursuant
to Section 11 hereof, the Licensee shall design, operate and maintain the
Restaurant Facility as a unified business operation with common architectural
and aesthetic themes maintained throughout the Restaurant Facility and
operations.
(g) "Parks Facility" shall mean the existing comfort
station, Building C, which the Licensee shall completely renovate and in the
shell thereof shall construct a new facility to accommodate the needs of the
Parks Department.
(h) (i) "Gross Receipts" shall mean, except as
otherwise provided in this sub-section 2.1(h), all funds received
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by Licensee without deduction or set-off of any kind, from the sale of food and
beverages, wares, merchandise or services of any kind, resulting directly or
indirectly from the operation of this License, provided that Gross Receipts
shall exclude the amount of any federal, state or city taxes which may now or
hereafter be imposed upon or be required to be paid by Licensee as against its
sales. Gross Receipts shall include any orders, placed or made directly or
indirectly at Licensed Premises, although delivery of merchandise or services
may be made outside, or away from the Licensed Premises, and shall include all
receipts for services to be rendered or orders taken at the Licensed Premises
for services to be rendered outside thereof. Notwithstanding any provision
herein to the contrary, proceeds realized by other caterers in which the
principals of Licensee have an interest are excluded from Gross Receipts under
this License, notwithstanding the fact that a catered event customer originally
solicited Licensee at the Licensed Premises. Licensee is nonetheless required to
always act in good faith in its efforts to book catered events at the Licensed
Premises. All other sales made or services rendered directly or indirectly from
Licensed Premises shall be construed as made and completed therein even though
payment therefor may be made at some other place, and although delivery of
merchandise sold or services rendered directly or indirectly upon Licensed
Premises may be made other than at Licensed Premises.
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(ii) Gross Receipts shall also include all
sales made by any other operator or operators using the Licensed Premises,
provided that in the event that the use of vending machines on the Licensed
Premises for the sale of food, drink, and other items is approved by Parks,
Licensee's actual income realized from such vending machine operations shall be
included in Gross Receipts, and provided further that Gross Receipts shall be
limited to include Licensee's actual income realized from fees or commissions
from any third party vendors operating at the Licensed Premises, including but
not limited to florists, photographers, bands and equipment rental companies the
services or merchandise of which are provided to Licensee's customers of catered
events, and rental, sublicense or subcontracting fees in connection with all
services, including but not limited to such services as valet parking
operations, provided by Licensee's approved subcontractors or sublicensees.
(iii) Gross Receipts shall include sales
made for cash or credit (credit sales shall be included in gross receipts as of
the date of the sale) regardless of whether the sales are paid or uncollected,
it being the distinct intention and agreement of the parties that all sums
received by Licensee from all sources from the operation of this License shall
be included in Gross Receipts, provided however that any gratuities transmitted
by Licensee directly or indirectly to employees and staff shall not be included
within Gross Receipts. Licensee shall
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provide sufficient documentation to prove that such gratuities were paid to
employees and staff in addition to their regular salaries.
[Intentionally Left Blank]
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SECTION 3
TERM OF LICENSE
3.1 This License shall commence and become effective upon full
execution by the parties. This License shall be for an operating term of twenty
(20) years beginning on the earlier of the date the Commissioner certifies that
the Licensee's Capital Improvements to Building A are substantially complete or
November 1, 1995 ("Fee Commencement Date") and ending on the twentieth
anniversary of the Commissioner's certification or October 31, 2015, whichever
is earlier.
3.2 In addition to the rights to terminate as provided in
Section 13 herein and the General Provisions annexed hereto as Exhibit A, this
License is terminable at will by the Commissioner in his sole and absolute
discretion at any time and such termination shall be effective after thirty (30)
days written notice to Licensee. The Commissioner, the City, its employees and
agents shall not be liable for damages to Licensee in the event that this
License is terminated by Commissioner as provided for herein. In the event such
notice is not given, this License shall terminate on the twentieth anniversary
of the Commissioner's certification that Capital Improvements to Building A are
substantially complete or October 31, 2015, whichever is earlier.
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SECTION 4
PAYMENT TO CITY
4.1 Licensee shall pay to City, in equal installments on the
dates specified in Section 4.2 herein, License Fees for each Operating Year,
consisting of the higher of the Minimum Annual Fee versus the annual percentage
of Gross Receipts derived from operations under this License according to the
schedule below.
OPERATING MINIMUM PERCENTAGE OF
YEAR NUMBER ANNUAL FEE vs. GROSS RECEIPTS
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1 $50,000 06% of restaurant gross receipts and 10%
of merchandise gross receipts.
2 $50,000 07% of restaurant gross receipts and 10%
of merchandise gross receipts.
3 $50,000 08% of restaurant gross receipts and 10%
of merchandise gross receipts.
4 $50,000 08% of restaurant gross receipts and 10%
or merchandise gross receipts.
5 $50,000 08% of restaurant gross receipts and 12%
or merchandise gross receipts.
6 $50,000 " " "
through
20 $50,000 " " "
4.2 The Minimum Annual Fees for each Operating Year shall be
paid to the City in twelve (12) equal installments on or before the first day of
each month. Any additional amount resulting from the applicable Percentage of
Gross Receipts shall
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be paid on for before sixty days following the end of the applicable Operating
Year.
4.3 On or before the thirtieth (30th) day following each month
of each Operating Year, Licensee shall submit to Parks in a form satisfactory to
Parks, a statement, signed and verified by an officer of Licensee, reporting the
preceding months Gross Receipts broken down into the following categories: food
and beverage service at snack bar, food and beverage service at sit-down
restaurant, alcoholic beverage service, parking, vending machines, merchandise
sales, information and tour booth services and miscellaneous sources of income.
Licensee must indicate whether or not these amounts are inclusive of sales tax
collected.
4.4 On or before the thirtieth (30th) day following each
Operating Year, Licensee shall submit to Parks an income and expense statement,
in form satisfactory to Parks, signed and verified by an officer of Licensee.
The form of the statement annexed hereto as Exhibit G, Income and Expense
Statement, is approved as the initial Statement of Annual Income and Expenses.
Licensee may designate such income and expense statements or any part thereof
confidential and exempt from disclosure under applicable freedom of information
laws. Parks will consider such designation when making determinations for
disclosure under applicable freedom of information laws.
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4.5 Licensee shall keep books and records as set forth in
Article IV of the General Provisions, annexed hereto as Exhibit A, and shall
institute a revenue control system acceptable to Commissioner.
4.6 In the event Parks determines that Licensee or his/her
employees, agents, sublicenses, or subcontractors have breached sections 4.1
through 4.5, hereinabove or sections 7.1 through 7.5, herein, Licensee may be
subject to a charge of $100.00 as liquidated damages with respect to each
incident of such breach provided that Licensee has been given reasonable notice
of such breach and has failed to cure within thirty (30) days of such notice.
4.7 Prior to commencement of operations hereunder, Licensee
shall deposit with the City the sum of Twelve Thousand Five Hundred Dollars
($12,500) as a security deposit ("Security Deposit"). Pursuant to the terms of
Article VI of the General Provisions annexed hereto as Exhibit A, the Security
Deposit shall be held by the City without liability for interest thereon, as
security for the full, faithful and prompt performance of and compliance with
each and every term and condition of this License to be observed and performed
by the Licensee.
4.8 License fees to Parks, shall be made payable to the City
of New York Department of Parks and Recreation, Attention Revenue Division, The
Arsenal, Central Park, New York, NY 10021.
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SECTION 5
CAPITAL IMPROVEMENTS
5.1 Licensee shall spend or cause to be expended during the
term hereof, a minimum of Eight Hundred Fifty-One Thousand Dollars ($851,000)
for Capital Improvements as defined in Section 2 hereof. These Capital
Improvements shall include but are not limited to the following
(a) Complete renovation of Building A, including
improvements necessary to accommodate the operations of the Licensee's food and
beverage service and merchandise sales operations including the accommodation of
roof top dining, to provide a separately accessed comfort station/restroom area
for the general public with no fewer than 24 stalls in the women's room and no
fewer than 11 stalls and 10 urinals in the men's room, and to provide one
garbage compactor and one closed container equivalent in service capacity to the
McClain "MAG" 6-yard compactor and the "RP 2240B" 40-yard closed container
respectively, together with any required site work to make the compactor and
container functionally operable to the Commissioner's satisfaction;
(b) Renovation of Building B to accommodate the
Licensee's operation of a merchandise shop, tourist information center or food
and beverage service operations, subject to Parks approval;
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(c) Complete renovation of Building C, the existing
comfort station, and reconstruction of the facility so as to accommodate office,
equipment storage and training rooms as well as separate staff rest rooms,
shower rooms and changing areas for both female and male Parks Department
personnel; and
(d) Design and installation of appropriate barriers
to control access to the parking area adjacent to Building A.
5.2 All Capital Improvements shall be completed in accordance
with the attached schedule of Capital Improvements annexed hereto as Exhibit B,
which includes the following information:
(a) Capital Improvement items to be constructed;
(b) Capital Improvement cost commitments; and
(c) Capital Improvement completion schedule.
Licensee shall perform and complete such Capital Improvements at its sole cost
and expense. The Licensee shall make no other Capital Improvements or
alterations without the prior written consent of the Commissioner.
5.3 The value of the Capital Improvements and equipment
purchases shall be determined by the Commissioner based upon construction
documents, invoices, labor time sheets and such other supporting documents or
other data. Expenditures for ordinary repairs and maintenance shall not be
considered Capital Improvements. In making the determination of value,
Commissioner
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may request any information he reasonably believes would be helpful to make such
determination. Licensee shall forward such information to Commissioner upon
request by Commissioner.
5.4 A percentage of the total cost ("Total Cost") for all
Capital Improvements will be charged to the Licensee for the review of design
documents by DPR personnel (the "Design Review Fee"). Total Cost of the Capital
Improvements will be the total amount stipulated in Section 5.1 herein or the
total of the actual construction and design cost, whichever is greater.
DESIGN REVIEW FEE SCHEDULE
Cost of Capital Improvements Fee
Up to $1,000,000 1%
Above $1,000,000 .5%
The schedule for payment of the Design Review Fee is as follows:
(a) Upon execution of this License Agreement: $8,510.00
(b) Upon the Final Completion of Capital Improvements, the
Licensee shall made a supplementary payment based upon the amount of Capital
expenditures (including both construction and design) which exceeds the amount
of the Capital Improvements stipulated in the License Agreement.
5.5 Pursuant to any approved schedule of Capital Improvements,
Licensee shall pay all applicable fees and shall submit to Parks and all other
governmental agencies having jurisdiction, for their prior approval, all plans,
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specifications, schematics, working and mechanical drawings for such Capital
Improvements. All plans, specifications, schematics, and working and mechanical
drawings shall be in such detail as Parks shall require. All work shall be
undertaken in strict accordance with the plans, specifications, schematics, and
working and mechanical drawings approved in writing in advance by Parks. No
Capital Improvement project shall be deemed Finally Completed until the
Commissioner certifies in writing that the Capital Improvement project has been
completed to his satisfaction.
5.6 Upon certification by Parks of Final Completion of the
Capital Improvements performed by Licensee, as defined herein, Licensee shall
provide Parks with one complete set of final, approved plans in "camera-ready
wash-off mylar" or other medium acceptable to Parks.
5.7 For any Capital Improvements commenced subsequent to
execution of this License, Licensee shall obtain a permit from the construction
permit office located in the Olmsted Center, Flushing Meadows Corona Park prior
to commencement of work. Licensee shall commence Capital Improvements only after
the issuance of a construction permit from Parks construction permit office;
conceptual approval of plans does not authorize the Licensee to begin
construction. Once Licensee has obtained the required construction permit,
Licensee shall notify Commissioner of the specific date on which construction
shall begin.
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5.8 Licensee shall proceed in good faith and with due
diligence to complete all Capital Improvements in accordance with the schedule
of dates indicated in Exhibit B attached hereto unless such work cannot be
completed due to circumstances beyond the control of Licensee including acts of
God, war, enemies or hostile government actions, revolutions, insurrection,
riots, civil commotion, strikes, fire or other casualty, or the inability,
through no fault of Licensee to obtain either a Certificate of Occupancy, or
other permits, licenses, or certificates required by any agency having
jurisdiction thereof or other similar circumstances which the Commissioner has
determined to be beyond the control of Licensee. In such situations, Licensee
shall employ its "best efforts" to continue Capital Improvements.
5.9 Licensee shall spend or cause to be expended the entire
amount required to complete each Capital Improvement item listed in Exhibit B,
including any amount needed above any estimated cost shown. In the event that
Licensee performs all Capital Improvements for less than the amounts listed in
Exhibit B, any excess monies shall be remitted to the City as additional license
fees upon the expiration or sooner termination of this Agreement. If excess
monies become payable pursuant to this paragraph, the excess monies shall be
remitted to the City within thirty (30) days following the Commissioner's
determination of Final Completion of the last Capital Improvement to be
completed
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according to Exhibit B; in the alternative, the Licensee shall have the option
of applying such excess monies (savings) to additional Capital Improvements to
the Licensed Premises, provided its proposals for such work are approved by the
Commissioner and all Capital Improvement activity is completed by April 1, 2000.
5.10 In the event Licensee is delayed or prevented from
completing all Capital Improvements in accordance with Exhibit B due to the
conditions enumerated in section 5.8 above, then the Commissioner may extend any
dates for performance of any remaining Capital Improvements. The number of days
by which performance may be extended shall be determined by the Commissioner
after inspection of the Restaurant Facility and consultation with Licensee.
5.11 In the event the Licensee fails to complete a particular
Capital Improvement by the date specified for final completion, Licensee shall
pay the City liquidated damages of $100.00 per day until the outstanding
improvement is completed. Licensee's failure to comply with any phase of the
schedules for Capital Improvements for a period of thirty (30) days shall
constitute a default upon which Commissioner may terminate this License upon ten
(10) days notice as provided in Article XXX of the General Provisions, annexed
hereto as Exhibit A.
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5.12 Licensee shall perform all Capital Improvements in
accordance with all federal, state, and city laws, rules, regulations, orders,
and industry standards, and with materials as set forth in the plans,
specifications, schematics, working and mechanical drawings. All equipment and
materials installed as part of the Capital Improvements shall be new, free from
defects, of the best grade quality, suitable for the purpose intended and
furnished in ample quantities to prevent delays. Licensee shall obtain all
manufacturers warranties and guarantees for all such equipment and materials.
5.13 As required by Section 24-216 of the New York City
Administrative Code, devices and activities which will be operated, conducted,
constructed or manufactured pursuant to this License and which are subject to
the provisions of the New York City Noise Control Code (the "Code") shall be
operated, conducted, constructed or manufactured without causing a violation of
such Code. Such devices and activities shall incorporate advances in the art of
noise control developed for the kind and level of noise emitted or produced by
such devices and activities, in accordance with regulations issued pursuant to
federal, state, City laws, rules, regulations or orders.
5.14 Unless otherwise provided, Licensee shall choose the
means and methods of completing the Capital Improvements unless Commissioner
reasonably determines that such means and methods constitute or create a hazard
to the Capital Improvements
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or to persons or property or will not produce finished Capital Improvements in
accordance with the Schedule of Capital Improvements annexed hereto as
Exhibit B.
5.15 No temporary storage or other ancillary structures or
staging areas may be erected or maintained without a permit obtained from Parks
Department's Construction Division, Permit Office.
5.16 Licensee may not cut down, replant, or remove any trees
from the Licensed Premises without the prior written approval of the Parks
Department's Forestry Division.
5.17 During performance of the Capital Improvements and up to
the date of Final Completion, Licensee shall be responsible for the protection
of the finished and unfinished Capital Improvements against any damage, loss or
injury. In the event of such damage, loss or injury, Licensee shall promptly
replace or repair such Capital Improvements.
5.18 Licensee shall provide written notice to Commissioner
when the Capital Improvements of each phase are substantially completed. After
receiving such notice, Commissioner shall inspect such Capital Improvements.
After such inspection Commissioner and Licensee shall jointly develop a single
final "punch list" incorporating all findings of Commissioner and Licensee of
all work not completed or not completed to the satisfaction of the Commissioner.
Licensee shall
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proceed with diligence to complete all "punch list" items within a reasonable
time as determined by the Commissioner.
5.19 Licensee, within three (3) months of Certification of
Final Completion, shall furnish the Commissioner with a statement signed and
certified by an officer of Licensee, detailing the actual costs of construction.
Accompanying such statement shall be construction documents, bills, invoices,
labor time books, accounts payable, daily reports, bank deposit books, bank
statements, checkbooks and canceled checks. Licensee shall maintain accurate
books and records of account of construction costs which shall be segregated
from other accounts or shall itemize and specify those costs attributable to the
Licensed Premises to permit audit by Parks or the Comptroller upon request.
5.20 For any Capital Improvements commenced subsequent to full
execution of this License, Licensee at its sole cost and expense shall provide
Parks with payment and performance bonds, or upon the approval of the
Commissioner, irrevocable letters of credit naming the City of New York as
beneficiary, in a three-phased schedule, corresponding to the three phases of
the schedule of Capital Improvements, and in the amount of each respective phase
of the estimated cost of the Capital Improvements, as security for the faithful
completion of the Capital Improvements. Such surety company shall be licensed to
conduct surety business in the State of New York and subject to
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the prior approval of Commissioner. Such Bond shall remain in full force and
effect until Parks certifies construction as finally complete. The first such
performance bond or letter of credit, shall be in the amount of $220,000 for all
Capital Improvements to be completed by May 31, 1995. The second bond or letter
of credit shall be in the amount of $390,500 for all Capital Improvements to be
completed by May 31, 1996 and the third bond or letter of credit shall be in the
amount of $240,000 for all Capital Improvements to be completed by May 31, 1997.
The required bond or letter of credit shall be delivered to Parks prior to the
commencement of any work under this License.
5.21 Licensee shall promptly repair, replace, restore, or
rebuild, as the Commissioner reasonably may determine, items of Capital
Improvements in which defects of materials, workmanship or design may appear or
to which damages may occur because of such defects, during the two-year period
subsequent to the date of the Final Completion of such Capital Improvements.
Failure to comply with this section shall constitute a default and may result in
the termination of this License as provided in Article XXX of the General
Provisions annexed hereto as Exhibit A.
5.22 Neither Parks, nor the City, its agencies, officers,
agents, employees or assigns thereof, shall be bound, precluded or estopped by
any determination, decision, approval, order, letter, payment or certificate
made or given under or in
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connection with this License by the City, the Commissioner, or any other
officer, agent or employee of the City, before the Final Completion and
acceptance of the Capital Improvements, from showing that the Capital
Improvements or any part thereof does not in fact conform to the requirements of
this License Agreement and from demanding and recovering from the Licensee such
damages as Parks or the City may sustain by reason of Licensee's failure to
perform each and every part of this License Agreement in accordance with its
terms, unless such determination, decision, approval, order, letter, payment or
certificate shall be made pursuant to a specific waiver of this paragraph signed
by the Commissioner or his authorized representative.
5.23 Upon installation, title to all construction, renovation,
improvements, equipment and fixtures made to the Licensed Premises shall vest in
and thereafter belong to the City at the City's option, which may be exercised
at any time after the Substantial Completion of their construction, renovation,
improvement, affixing, placement or installation. To the extent the City chooses
not to exercise its option with respect to. any of the construction, renovation,
improvements, equipment or fixtures made to the Licensed Premises it shall be
the responsibility of Licensee to remove such items at its sole cost and
expense.
5.24 Licensee warrants that it is financially solvent and
sufficiently experienced and competent to perform, or cause
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to be performed, the Capital Improvements required pursuant to this License.
SECTION 6
UTILITIES AND PUBLIC TELEPHONE SERVICE
6.1 Except as provided in Section 6.2 and Section 2.1(d)
herein, Licensee, at its sole cost and expense, shall install or cause to be
installed, and maintain all utility lines, meters and supplies of power
necessary for the proper operation of this License as described herein and pay
all utility cost. Utilities may include, but shall not be limited to
electricity, gas, heat, coolant, water, sewer and rubbish removal. Parks does
not make representation or warranty that existing cables, meters or supplies of
power are adequate for Licensee's needs or that any entity can or will make such
service available.
6.2 Once Licensee has completed reconstruction of the existing
Building C and the Parks Facility is Finally Complete, Parks will accept ongoing
responsibility for payment of the cost of utilities to the Parks Facility
throughout the remainder of the term of this License Agreement. In no event will
Licensee become obligated to maintain the existing Building C prior to the time
that Licensee commences renovating construction. In addition, once Licensee has
completed installation of the garbage compactor and container as required under
this License Agreement, Parks will provide for the ongoing removal of compacted
garbage from the compactor. However, Licensee shall have continuous and
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ongoing responsibility for maintenance and servicing of the compactor and
container, as well as for utility costs associated with it. Parks will pay
utility costs for the public restroom portion of Building A, provided that
Licensee installs separate meters for measuring electricity and water
consumption at the restroom portion of Building A as part of its Capital
Improvements.
6.3 In the event that New York Telephone Company is unable to
supply telephone service to the Licensed Premises, Licensee may, at its option,
contract directly with any telephone company for public telephone services at
Licensed Premises, but nothing herein shall obligate City to contract with any
telephone company for such services in the event Licensee fails to do so. To the
extent that rates for such public telephone services are not otherwise regulated
by federal, state or local authorities, such rates shall be subject to Parks
approval.
SECTION 7
OPERATIONS
7.1 License, at its sole cost and expense, shall operate and
maintain the Restaurant Facility under authority of this License for the
accommodation of the public and in such manner as the Commissioner reasonably
shall prescribe and as permitted by federal, state, and City laws, rules,
regulations or orders. Licensee shall have the right to use the Restaurant
Facility only for the activities described herein as follows:
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(a) operation and maintenance of a snack bar with a concession
stand on the ground floor level of the main building, (Building A in Exhibit C,
annexed hereto) for fast-food and merchandise walk away purchases;
(b) operation and maintenance of a full service restaurant
with an interior dining room on the ground floor level of Building A featuring a
display kitchen on the back wall, glass doors leading to the outside patio and a
large spiral staircase leading to rooftop dining;
(c) operation and maintenance of a partially enclosed, outdoor
patio dining area adjacent to the interior dining room incorporating bench
seating and cafe tables, an outdoor bar with tables, umbrellas and chairs.
(d) operation and maintenance of a roof top dining area on the
second level of Building A;
(e) operation and maintenance of a valet parking concession in
the area adjacent to Building A to accommodate patrons of the Restaurant
Facility;
(f) operation and maintenance of a large rest room facility on
the ground floor level of Building A, part of which shall be directly accessible
to be public without entering through the interior dining room described above
and which shall be provided without charge to the public. No fewer than 24
stalls in the womens' rest room and 11 stalls and 10 urinals in the mens' rest
room shall be directly accessible to
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the public from outside the Restaurant Facility without entering the interior
dining area. The number of rest room stalls accessible through the interior
dining room shall not be fewer than the number of stalls required by City
Building Code for the number of seats at tables in the interior dining room and
roof top dining area combined;
(g) subject to the prior written approval of the Commissioner,
operation and maintenance of a merchandise shop and souvenir boutique and/or
food and beverage operation in the kiosk structure, Building B in Exhibit C,
annexed hereto.
7.2 Notwithstanding its obligations to maintain the Licensed
Premises, once Licensee has completed the Capital Improvements to the existing
comfort station, Building C in Exhibit C annexed hereto, as required pursuant to
Section 5 herein, and has turned the Parks Facility over to Parks as Finally
Complete, no continuing operational duties pertaining to Building C shall be
required of Licensee except for its warranty of construction.
7.3 Licensee may place chairs, tables and umbrellas in the
patio areas within the Limit Line of Building A on the Licensed Premises, as
illustrated on Exhibit C, annexed hereto, for the use of patrons of the
restaurant. Additionally, Licensee will be responsible for placing and
maintaining tables in a designated area adjacent to the walk-away food service
concession which will be made available for use by the general public.
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Licensee must operate, maintain and clean the entire seating area including the
public tables, whenever the outdoor patio or walk-away fast food concessions are
operating. Licensee must arrange the seating area so that pedestrian traffic
along the pathways is not impeded.
7.4 Licensee may store tables, chairs and equipment only in
the areas in the Restaurant Facility designated on the Design Plans.
7.5 Licensee's vendors and waiters/waitresses will be required
to wear uniforms that have been approved by the Department, which approval shall
not be unreasonably withheld or delayed. The description of uniforms annexed
hereto as Exhibit D is hereby approved by the Department.
7.6 In addition to a Parks permit, the Licensee must obtain a
Health Department License, and any other licenses, permits or authorizations
from any government agencies having jurisdiction and shall prominently display
said licenses, permits or authorizations, as required in accordance with
applicable federal, state and City rules, laws, statutes, regulations or orders.
In the event that Licensee is unable to obtain a liquor license for the
Restaurant Facility or licenses, permits or authorizations for Licensee to
operate the Restaurant Facility within one year of the execution date of this
License, Licensee shall have the right to terminate this License without penalty
or prejudice. In the event of such termination by Licensee the
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Department shall promptly refund to Licensee the security deposit held pursuant
to Section 4.7 herein.
7.7 Prices for all items and services to be sold at or from
the Licensed Premises, including but not limited to all prices charged for food,
beverages, merchandise, tour services or parking, must be uniform and approved
by the Commissioner. It is understood that all restaurant and snack bar pricing
will be competitive with all similar restaurant and snack bar pricing,
respectively, at facilities under similar licensing arrangements with Parks.
Exhibit E, annexed hereto, contains the pre-approved menu, merchandise, services
and parking price list, however Licensee shall have a liberal right to change
the items being served and sold, subject to approval of Parks which shall not be
unreasonably withheld or delayed, except that daily specials shall not require
Parks' prior approval.
7.8 Commencing on the Fee Commencement Date and thereafter
during the times the Restaurant Facility is in operation, Licensee will be
responsible for keeping the entire Licensed Premises clean and free of litter.
Licensee shall maintain umbrellas, canopies and other equipment utilized in the
operations under this License Agreement in good repair and order.
7.9 Throughout the term of this License Agreement, Licensee
shall operate the Restaurant Facility seven days per week for such hours as the
Commissioner shall approve. Annexed
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hereto as Exhibit E is the initial schedule of operating hours, food service
menu and merchandise price list, which is hereby approved. In regulating the
hours of operation, the Commissioner may consider the hours of operation of
other similar Parks facilities, the nature of the community and the environs of
the concession, the rules and regulations of Parks operations, the public health
and safety, and other similar considerations. Licensee may, subject to the prior
written consent of the Commissioner, suspend operation of the restaurant portion
of the Restaurant Facility during the period between January 1 and March 31 of
any Operating Year, if the Licensee determines that such operation is not
economically feasible; during any such period of restaurant suspended
operations, the Licensee shall continue operations of the snack bar portion of
the Restaurant Facility.
7.10 At its sole cost and expense, Licensee shall open and
maintain the rest rooms which are available to the general public in Building A,
during all hours when any food or beverage service is in operation on the
Licensed Premises. For all rest room space in Building A, including the area
available to the general public, the Licensee shall submit a cleaning schedule
for the prior approval of Parks and adhere to such schedule once it is approved.
Licensee shall provide all required cleaning supplies and services, including
but not limited to soap, towels (or hot air blowers) and toilet paper, paint,
removal of
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graffiti, repair broken stall doors, and toilet seats, and replacement of broken
lights and fixtures.
7.11 Umbrellas, canopies and other equipment shall be of a
design and color as set forth in the Design Plans, once said Design Plans have
been approved by the Department. No advertising of product brands will be
permitted unless approved in advance by the Department.
7.12 Licensee shall, at its sole cost and expense, print,
frame and prominently display in a place and manner designated by Commissioner,
the current approved schedule of hours, fees and rates as required by Section
7.9 herein.
7.13 Licensee shall not use any polystyrene foam packaging or
food containers in the operations under this License Agreement. Additionally,
Licensee will only be allowed to provide paper straws for the walk-away snack
bar concession; plastic straws will be permitted only in the interior restaurant
settings.
7.14 Licensee, at its sole cost and expense, shall provide any
lighting, music, music programming or sound equipment necessary for the proper
operation of the License. Licensee agrees to operate and play said sound
equipment and music only at a sound level reasonably acceptable to the
Commissioner. Any extraordinary musical programming (other than regular
background music, either recorded or live) by the Licensee shall be subject to
Department approval.
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7.15 Licensee warrants that all food, beverages and
merchandise shall be pure and of good quality. Licensee shall maintain adequate
inventory control to assure a constant supply of food, beverages and
merchandise. Licensee shall operate the snack bar in such a manner as to
maintain the highest health inspection rating.
7.16 Licensee shall personally conduct operations under this
License Agreement or employ an operations manager satisfactory to Commissioner.
The designated manager must be available by telephone during all hours of
operation. Licensee shall replace any manager, employee, subcontractor or
sublicensee whenever reasonably demanded by Commissioner.
7.17 Licensee at its sole cost and expense, shall provide
personnel with the requisite qualifications and appropriately train, supervise
and accept responsibility for their acts associated with the operation of this
License, including but not limited to:
(a) the collection of all monies;
(b) the maintenance of the Licensed Premises;
(c) the conduct and supervision of all activities
to be engaged in upon the Licensed Premises, including the provision of food
service personnel;
(d) the maintenance of security of the Licensed
Premises;
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7.18 Licensee shall at its sole cost and expense, provide a
twenty-four (24) hour per day security system at the Restaurant Facility.
7.19 Licensee shall prepare and provide to Parks, reports of
major accidents occurring on the Licensed Premises. Licensee shall promptly
notify Parks, in writing, of any claim for injury, death, property damage or
theft which shall be asserted against Licensee with respect to the Licensed
Premises. Licensee shall also designate a person to handle all such claims,
including all insured claims for loss or damage pertaining to the operations of
the Licensed Premises and Licensee shall notify Parks in writing, as to said
person's name and address.
7.20 Licensee shall promptly notify Parks personnel of any
unusual conditions that may develop in the course of the operation of this
License Agreement such as, but not limited to, fire, flood, vandalism, casualty
or substantial damage of any character.
7.21 Licensee shall maintain close liaison with the Parks
Enforcement Patrol and New York City Police and cooperate with all efforts to
remove illegal vendors from the Licensed Premises and surrounding areas.
Licensee shall not allow or permit illegal activity to occur on the Licensed
Premises. Although Parks will use its best efforts to remove non-licensed
vendors from the Licensed Premises, Parks makes no warranty that such illegal
vendors will not appear on the Licensed Premises.
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7.22 All deliveries to Licensee shall be made on such days and
at such times of day as Commissioner shall reasonably approve.
7.23 Licensee shall establish an appropriate advertising and
promotion program. Licensee shall have the right, subject to the prior approval
of the Commissioner, to print or to arrange for the printing of programs for
events containing any advertising matter, except advertising matter which in
sole discretion of the Commissioner demonstrates a lack of respect for public
morals or conduct, is otherwise unacceptable or which adversely affects the
reputation of the Restaurant Facility, the Parks Department or the City of New
York.
7.24 Licensee shall employ good faith efforts and cooperate
with any existing licensees operating nearby the Licensed Premises to secure
consent for the Licensee to erect and maintain suitable signs on the Licensed
Premises and in the other areas of Battery Park, as described on Exhibit F
annexed hereto. Such signs shall be informational in nature and direct patrons
to Licensee's facilities at the Licensed Premises, which shall include, for the
purposes of such signage, the rest rooms available to the general public in the
Main Building. Any advertisement used in connection with such facility, shall be
appropriately located and shall state that the Restaurant Facility is a City of
New York, Department of Parks and Recreation concession, operated by Shellbank
Restaurant Corp.
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7.25 If Licensee contemplates placing any signs off-site, such
as on nearby highways or streets for the purpose of directing patrons to the
Restaurant Facility or for any other purpose, it shall be Licensee's
responsibility to obtain any necessary approvals or permits from any
governmental agency having jurisdiction over such highways, streets or
locations. The design and content of all signs, whether on or off Parks
property, are subject to Commissioner's prior approval.
7.26 Licensee shall obtain equipment which will provide
security for all monies received. Licensee shall provide for the transfer of all
monies collected to the bank. Licensee shall bear the loss of any lost, stolen
or counterfeit monies derived from operations pursuant to this License.
7.27 Licensee shall have use of the Parking Area, ("Parking
Area") denoted on Exhibit C annexed hereto and made a part hereof, and may,
subject to the Licensee's obtaining the prior written approval of the
Commissioner and any other state or local authorities having jurisdiction, erect
a vehicular traffic control device at the entrance to the Parking Area nearest
to State Street and develop a parking control system for the use of the Parking
Area by its employees, agents, contractors and patrons. Any such parking control
system shall not impede pedestrian traffic through the Parking Area nor restrict
the access of official and emergency vehicles to the Parking Area and Battery
Park. Licensee agrees to allow and assist tour buses and
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similar vehicles requiring use of the Parking Areas as a turnaround area.
Licensee agrees to maintain the Parking Area in a clean and orderly manner, free
from refuse and litter.
SECTION 8
MAINTENANCE, SANITATION AND REPAIRS
8.1 Licensee, at its sole cost and expense and to the
reasonable satisfaction of Commissioner, shall put, keep, repair and preserve in
good order the Licensed Premises including the main building and kiosk
structures, walkways, curbs, pathways, trees, landscaping, parking lot and other
areas extending to and including the limit line as indicated on Exhibit C
annexed hereto. Licensee shall at all times keep Licensed Premises and the areas
within 100' of the Licensed Premises, clean, free of litter, neat and, with
respect to the food service areas, fumigated, disinfected, deodorized and in
every respect sanitary. Licensee shall provide regular cleaning and maintenance
services for Licensed Premises, including collection and removal of litter,
debris and snow. Licensee shall provide for ongoing maintenance and repair of
the garbage compacting equipment which it installs, as provided in Section 5.1
herein.
8.2 Parks will provide for the regular removal of compacted
material from the compactor supplied by the Licensee.
8.3 Licensee shall maintain and repair the Licensed
Premises in accordance with the standards set forth in this License Agreement.
All such maintenance shall be performed by
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Licensee in a good and worker like manner. Licensee shall submit with its annual
statement of income and expenses required pursuant to Section 4.4 herein, a
report detailing its annual expenditures for material needed for repairs and
maintenance in fulfillment of its obligation pursuant to this Section 8. The
Security Deposit required pursuant to Section 4.7 hereof and Article VI of the
General Provisions, annexed hereto as Exhibit A, shall secure Licensee's
obligation to maintain and repair the Licensed Premises.
8.4 Licensee shall provide adequate waste receptacles on the
Licensed Premises. All waste, garbage, refuse, rubbish and litter shall be
collected, bagged and placed in the compactor/container at the Licensee's sole
cost and expense; compacted garbage will be removed by Parks on a regular, as
needed basis.
8.5 Licensee shall be responsible for all snow removal on the
Licensed Premises.
8.6 Licensee, at its sole cost and expense and to the
reasonable satisfaction of Commissioner, shall provide (and replace if
necessary), all equipment necessary for the operation of this License, and put,
keep, repair, preserve and maintain in good order all equipment found on, placed
in, installed in or affixed to Licensed Premises.
8.7 At the expiration or sooner termination of this License,
Licensee shall turn over to Parks a Restaurant Facility
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with kiosk, parking lot and Parks Facility which are well maintained, in good
repair and in broom clean condition, ordinary wear and tear excepted.
SECTION 9
APPROVALS
9.1 Licensee is solely responsible for obtaining all
government approvals, permits and licenses required by federal, state and City
laws, regulations, rules or orders to fulfill this license.
9.2 Whenever any act, consent, approval or permission is
required of City or Commissioner under this license, the same shall be valid
only if it is, in each instance, in writing and signed by Commissioner or his
duly authorized representative. No variance, alteration, amendment, or
modification of this instrument shall be valid or binding upon City,
Commissioner or their agents, unless the same is, in each instance, in writing
and duly signed by the Commissioner or his duly authorized representative.
SECTION 10
RESERVATION FOR SPECIAL EVENTS
10.1 Commissioner represents to Licensee that the Commissioner
has not granted to any other person or entity any license, permit, or right of
possession or use which would prevent in any way Licensee from performing its
obligations and realizing its rights under this License. It is expressly
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understood that this Section 10.1 shall in no way limit Parks right to sponsor
or promote Special Events, as defined herein, in Battery Park, or to enter into
agreements with third parties to sponsor or promote such events; provided that
Parks will use its reasonable efforts to assure that such agreements shall not,
without the prior written consent of Licensee, prohibit the Licensee from use of
the parking lot or driveway adjacent to the Licensed Premises. For the purposes
of this Section 10.1 the term "Special Event(s)" shall mean any event for which
Parks has issued a Special Event Permit.
10.2 Commissioner shall use his best efforts to notify
Licensee of any Special Event to be held at Battery Park at least fifteen (15)
days in advance of such event.
10.3 Parks agrees to notify any third party operator or
sponsor of Special Events of Licensee's access rights to the Licensed Premises
and to provide same with the name and telephone number of Licensee's manager.
10.4 In the event that Licensee provides reasonably
satisfactory evidence to Parks that the use of the Restaurant Facility is
adversely affected by such Special Events, Licensee and the Commissioner agree
to meet and to discuss and consider a modification of this License to take into
account the affect of such Special Events on the revenues of the Restaurant
Facility.
10.5 Notwithstanding any other provision of this Section 10,
Licensee agrees to make Building A available to Parks
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for functions conducted and sponsored by Parks for Parks' personnel no more than
four (4) times per year. All Parks-sponsored functions shall be scheduled no
more than 120 days nor less than 30 days prior to the event. Licensee shall only
be obligated to make available the dining and catering space of Building A,
although Licensee shall have the right of first refusal to provide any
commercial food and beverage catering services, if such services are required
for the Parks sponsored functions. Parks may, without obligation to Licensee
supply food and beverage service to Parks' personnel. During such Parks
sponsored functions, Licensee shall, without cost to Parks, make Licensee's
managerial personnel available to assist with opening, closing and/or security
of the Licensed Premises. Parks personnel shall not have the right to use the
kitchen or bar during such Parks-sponsored functions.
SECTION 11
ASSIGNMENTS AND SUBLICENSES
11.1 Licensee may assign or sublicense its interest in whole
or in part in this License Agreement provided that Licensee obtains the
Commissioner's prior written approval, which shall not be unreasonably withheld
or delayed.
(a) No assignment or other transfer of any
interest in this License Agreement shall be permitted which, alone or in
combination with other prior or simultaneous transfers or assignments, would
have the effect of changing the
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ownership or control, whether direct or indirect, of more than forty-nine
percent (49%) of stock or voting control of Licensee in the Licensed Premises
without the prior written consent of Commissioner. Licensee shall present to
Commissioner the assignment or sublicense agreement for approval, together with
any and all information as may be required by the City for such approval,
including a statement prepared by a certified public accountant indicating that
the proposed assignee or sublicensee has a financial net worth acceptable to the
Commissioner together with a certification that its principal business activity
will consist of the management and operation of the Recreation Facility. The
constraints contained herein are intended to assure the City that the Licensed
Premises are operated by persons, firms and corporations which are experienced
and reputable operators and are not intended to diminish Licensee's interest in
the Licensed Premises or to create any rights to payment as a condition of the
granting of any required consent or approval.
(b) As used in this Section 11 the term
"assignment" shall be deemed to include any direct or indirect assignment,
sublet, sale, pledge, mortgage, transfer of or change of more than 49% in stock
or voting control of the Licensee, including any transfer by operation of law.
No sale or transfer of the stock owned by Licensee or its nominee may be made
under
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any circumstance if such sale will result in a change of control violative of
the intent of this Section.
11.2 Should Licensee choose to assign or sublicense the
management and operation of any element of the Recreation Facility to another
party, Licensee shall seek the approval of the Commissioner by submitting a
written request including proposed assignment documents as provided above. The
Commissioner may request any additional information he deems necessary and
Licensee shall promptly comply with such requests.
11.3 No consent to or approval of any assignment or
sublicensee granted pursuant to this Section 11 shall constitute consent to or
approval of any subsequent assignment or sublicense.
11.4 Failure to comply with this provision shall cause the
immediate termination of this license.
SECTION 12
RESERVATION FOR PARKS CONSTRUCTION
12.1 Parks reserves the right to perform construction or
maintenance work at its discretion on or through the Licensed Premises at any
time during the term of this License; however the City shall make reasonable
efforts to perform or have performed any repairs, alterations and/or other
construction work (the "Construction Work") in and to the Park and/or Licensed
Premises in such a manner as will not materially interfere with Licensee's
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operations at the Licensed Premises which for the purposes of this Section 12.1
shall refer to Building A and Building B only.
12.2 Notwithstanding anything contained herein to the
contrary, City reserves the right to, and anticipates that it may during the
term hereof, upon thirty (30) days written notice to Licensee, suspend
Licensee's Restaurant operations hereunder for any number of days in order to
accommodate City construction projects, including without limitation, the
anticipated reconstruction of the esplanade and landscaping in Battery Park.
During the period of any suspension of Restaurant Facility operations pursuant
to this subsection 12.2 whether or not the required notice has been given by
City, the Minimum Annual Fee and/or Percentage payments due, if any, shall be
suspended and upon resumption of Restaurant Facility operations, such fee
payments shall be resumed at the same levels which would have been in effect on
the date of the suspension of operations. In addition, the License term shall be
extended past its original expiration date for a period of time equal to such
suspension, it being the intention of the parties that the Licensee shall,
subject to the terms hereof, be entitled to operate the Licensed Premises for
twenty (20) full Restaurant Facility Seasons at the corresponding fee set forth
in Section 4.1 herein for each such season.
[intentionally Left Blank]
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SECTION 13
GENERAL PROVISIONS INCORPORATED
13.1 The General Provisions annexed hereto as Exhibit A are
hereby incorporated herein. In the event that there is any conflict between the
General Provisions annexed hereto as Exhibit A and this License Agreement, the
language of this License Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this
License Agreement to be signed and sealed on the day and year first above
written.
CITY OF NEW YORK
PARKS & RECREATION
By:/s/ Henry J. Stern
----------------------------------
Henry J. Stern, Commissioner
Dated: 23 December, 1994
-------------------------------
SHELLBANK RESTAURANT CORP.
By:/s/ Frank Cretella
----------------------------------
Frank Cretella Pres
-------------------------------------
Print Name and Title
Dated: December 14, 1994
-------------------------------
APPROVED AS TO FORM
CERTIFIED AS TO LEGAL AUTHORITY
Unintelligible
------------------------------------
ACTING CORPORATION COUNSEL
Dated: November 10, 1994
-------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 23rd day of December, 1994 before me personally came
Henry J. Stern to me known, and known to be the Commissioner of the Department
of Parks and Recreation of the City of New York, and the said person described
in and who executed the forgoing instrument and he acknowledged that he executed
the same in his official capacity and for the purpose mentioned therein.
/s/ Marjorie A. Cadogan
------------------------------------------
Notary Public
STATE OF NEW YORK )
} ss.:
COUNTY OF NEW YORK )
On this 14th day of December, 1994 before me personally came
Frank Cretella, who, being duly sworn by me did depose and say that he resides
at 1113 Forest Ave. NY 10310 and that he is the President of the corporation
described in and who executed the foregoing instrument and he acknowledged that
the executed the same in his official capacity and for the purposes mentioned
therein.
/s/ Robert J. Scamardella
------------------------------------
Notary Public
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EXHIBIT A
GENERAL PROVISIONS
TABLE OF CONTENTS
Page
ARTICLE ----
I DEFINITIONS........................................... 1
II NOT A LEASE........................................... 2
III PROHIBITION AGAINST TRANSFER.......................... 2
IV BOOKS AND RECORDS..................................... 2
V RIGHT TO AUDIT........................................ 4
VI SECURITY DEPOSIT...................................... 4
VII CREDITOR-DEBTOR PROCEEDINGS........................... 5
VIII USE OF EQUIPMENT...................................... 6
IX TITLE................................................. 6
X LICENSEE'S ACQUISITION OF FIXED EQUIPMENT............. 6
XI EXPENDABLE EQUIPMENT.................................. 6
XII OBLIGATION TO ACQUIRE................................. 7
XIII MAINTENANCE OF LICENSED PREMISES, EQUIPMENT AND
CONDITION UPON SURRENDER.............................. 7
XIV ALTERATIONS........................................... 8
XV IMPROVEMENT OR CORRECTION IN OPERATIONS............... 9
XVI MERCHANDISE AND PRICES................................ 9
XVII ADVERTISING...........................................10
XVIII UTILITIES.............................................10
XIX PUBLIC TELEPHONE SERVICE..............................10
XX INFLAMMABLES..........................................10
XXI SANITATION............................................10
XXII ACCESS................................................11
XXIII COMPLIANCE WITH LAWS..................................11
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Page
----
XXIV NON-DISCRIMINATION .................................11
XXV NO WAIVER OF RIGHTS ................................12
XXVI ASSUMPTION OF RISK..................................12
XXVII INDEMNIFICATION.....................................12
XXVIII WAIVER OF COMPENSATION..............................13
XXIX WORKERS' COMPENSATION, PUBLIC LIABILITY
AND PROPERTY INSURANCE............................. 13
XXX TERMINATION.........................................17
XXXI INVESTIGATIONS......................................19
XXXII WAIVER OF TRIAL BY JURY............................ 21
XXXIII CHOICE OF LAW, CONSENT TO JURISDICTION AND
VENUE.............................................. 22
XXXIV PAYMENTS AND NOTICES................................23
XXXV LATE CHARGES........................................23
XXXVI ENTIRE AGREEMENT....................................24
XXXVII MODIFICATION OF AGREEMENT...........................24
XXXVIII PARAGRAPH AND OTHER REFERENCES......................24
XXXIX TRUST FUNDS.........................................24
XL PROCUREMENT OF AGREEMENT............................24
XLI CUMULATIVE REMEDIES - NO WAIVER.....................25
XLII SEVERABILITY: INVALIDITY OF PARTICULAR
PROVISIONS......................................... 25
XLIII CONFLICT OF INTEREST................................26
XLIV EMPLOYEES...........................................26
XLV INDEPENDENT STATUS OF LICENSEE......................26
XLVI ALL LEGAL PROVISIONS DEEMED INCLUDED................27
XLVII JUDICIAL INTERPRETATION.............................27
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EXHIBIT A
GENERAL PROVISIONS
<PAGE>
EXHIBIT A
GENERAL PROVISIONS
ARTICLE I
DEFINITIONS
As used throughout this License, the following terms shall
have the meanings set forth below:
(a) "City" shall mean the City of New York, its departments
and political subdivisions.
(b) "Commissioner" shall mean the Commissioner of the New York
City Department of Parks and Recreation or his designee.
(c) "Comptroller" shall mean the Comptroller of the City of
New York.
(d) "Consumer Price Index" ("C.P.I.") shall mean the Consumer
Price Index for all urban consumers; all items indexed (C.P.I.-U.) for the New
York, New York/Northeastern New Jersey area, by the United States Department of
Labor, Bureau of labor Statistics. In the event the index shall hereafter be
converted to a different standard reference base or otherwise revised, the
determination of the increase shall be made with the use of conversion factor,
formula or table for converting the index as may be published by the Bureau of
Labor Statistics. In the event the index shall cease to be published, then for
the purpose of this License Agreement there shall be substituted for the index
such other index as the Department and Licensee shall agree upon.
(e) "Department" shall mean the New York City Department of
Parks and Recreation.
(f) "Expendable Equipment" shall mean all equipment, other
than Fixed Equipment, provided by Licensee.
(g) "Fixed Equipment" shall mean any property affixed in any
way to Licensed Premises, whether or not removal of said equipment would damage
Licensed Premises.
(i) "Additional Fixed Equipment" shall mean Fixed
Equipment affixed to Licensed Premises subsequent to the date of
execution of this License.
(ii) "Fixed and Additional Fixed Equipment" shall
refer to Fixed Equipment and Additional Fixed Equipment
jointly and severally.
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(h) "Parks" shall mean the New York City Department of Parks
and Recreation.
ARTICLE II
NOT A LEASE
It is expressly understood that no land, building, space,
improvement, or equipment is leased to Licensee, but that during the Term of
license, Licensee shall have the use of the Licensed Premises for the purpose
herein provided and except as herein provided, Licensee has the right to occupy
the premises assigned to it and to operate the Licensed Premises, and to
continue in possession thereof only so long as each and every term and condition
in this license is strictly and properly complied with and so long as this
license is not terminated by Commissioner.
ARTICLE III
PROHIBITION AGAINST TRANSFER
Licensee shall not sell, transfer, assign, sublicense or
encumber in any way this License hereby granted, a majority of the shares of
Licensee, or any equipment furnished as provided herein, or any interest
therein, or consent, allow or permit any other person or party to use any part
of the Licensed Premises, building, space or facilities covered by this license,
nor shall this license be_transferred by operation of law, unless approved in
advance in writing by Commissioner, it being the purpose and spirit of this
License Agreement to grant this license and privilege solely to Licensee herein
named.
ARTICLE IV
BOOKS AND RECORDS
(a) Licensee, during the term of this license and any renewal
thereof, shall maintain adequate systems of internal control and shall keep
complete and accurate records, books of account and data, including daily sales
and receipts records, which shall show in detail the total business transacted
by Licensee and the Gross Receipts therefrom. Such books and records maintained
pursuant to this license shall be conveniently segregated from other business
matters of Licensee and shall include, but not be limited to: all federal, state
and local tax returns and schedules of the Licensee, records of daily bank
deposits of the entire receipts from transactions in, at, on or from the
Licensed Premises; sales slips, daily dated cash register receipts, sales books;
duplicate bank deposit slips and bank statements.
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(b) All transactions shall be registered and recorded on
accurate cash registers, totaling or computing machines or on other
income-recording devices which shall register each transaction sequentially and
contain locked-in cumulative tapes with cumulative capacity satisfactory to
Parks or Comptroller. All such machines and devices shall be approved prior to
the commencement of this license by Parks or the Comptroller and the Licensee
shall notify Parks of the name and serial numbers of all such machines and
devices used at the Licensed Premises and of any changes or additions within
five (5) days thereof. All reports and data generated from or by such machines
and devices, including transactions, shall be posted daily on books and records
of account.
(c) Licensee shall use such accounting and internal control
methods and procedures and keep such additional books and records as may be
prescribed by Parks or the Comptroller, and Parks or the Comptroller shall have
the right to examine the recordkeeping procedures of the Licensee prior to the
commencement of the term of this license, and at any time thereafter, in order
to assure that the procedures are adequate to reveal the true, correct and
entire business conducted by the Licensee. Licensee shall maintain each year's
records, books of account and data for a minimum of six (6) years.
(d) Licensee shall furnish to Parks, by the 30th day following
each year of operation, statements sworn to and verified by an officer of the
Licensee, prepared by a certified public accountant showing the Gross Receipts
of the Licensee for such operating year and the annual income and expenses of
the Licensee. All information to be furnished to Parks shall be accurate and
correct in all material respects and sufficient to give parks a true and
accurate picture of the business conducted by the Licensee.
(e) The failure or refusal of the Licensee to furnish any of
the statements required to be furnished under this Article within fifteen (15)
days after its due date, the failure or refusal of the Licensee to maintain
adequate internal controls or to keep any of the records as required by this
Article or the existence of any unexplained discrepancy in the amount of fees
required to be due and paid hereunder, as disclosed by audit conducted by Parks
or the Comptroller, of more than five percent (5%) in any two out of three
consecutive months or more than ten percent (10%) in one month, shall be
presumed to be a failure to substantially comply with the terms and conditions
of this license and a default hereunder, which shall entitle parks, at its
option, on five (5) days written notice, to terminate this license. In addition,
the failure or refusal of Licensee to furnish the required statements, to keep
the required records or to maintain adequate internal controls shall authorize
Parks or the Comptroller to make reasonable projections of the amount of Gross
Receipts which would have been disclosed had the required
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statements been furnished or the required records maintained, based upon such
extrinsic factors as the auditors deem appropriate in making such projections.
Licensee shall pay any assessment based upon such reasonable projections within
fifteen (15) days after receipt thereof, and the failure to do so shall
constitute an additional substantial violation of this license and a default
hereunder.
ARTICLE V
RIGHT TO AUDIT
(a) Parks, the Comptroller and other duly authorized
representatives of the City shall have the right, during business hours, to
examine or audit the records, books of account and data of the Licensee to
verify Gross Receipts as reported by the Licensee. Licensee shall also permit
the inspection by Parks, Comptroller or other duly authorized representatives of
the City of any equipment used by Licensee, including, but limited to, cash
registers and recording machines, and all reports or data generated from or by
the equipment. Licensee shall cooperate fully and assist Parks, the Comptroller
or any other duly authorized representative of the City in any examination or
audit thereof. In the event that the Licensee's books and records, including
supporting documentation, are situated at a location fifty (50) miles or more
from the City, the records must be brought to the City for examination and audit
or Licensee must pay the food, board and travel costs incidental to two auditors
conducting such examination or audit at said location.
(b) Notwithstanding any other provision of this License, the
failure or refusal of the Licensee to permit Parks, the Comptroller or any other
duly authorized representative of the City to audit and examine the Licensee's
records, books of account and data or the interference in any way by the
Licensee in such an audit or examination is presumed to be a failure to
substantially comply with the terms and conditions of this license and a default
hereunder which shall entitle Parks, at its option on fifteen (15) days written
notice, to terminate this license.
ARTICLE VI
SECURITY DEPOSIT
(a) Licensee has deposited with City the sum of Twelve
Thousand Five Hundred dollars ($12,500) as a security deposit ("Security
Deposit"), for the full, faithful and prompt performance of and compliance with
all the terms and conditions of this license. The Security Deposit shall consist
of cash or a negotiable instrument payable to bearer or the City of New York
which the Comptroller shall approve as being of equal market value with the sum
so required. The Security Deposit shall remain
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with the City throughout the Term of this license. Until the Security Deposit is
established, as described above, Parks shall retain Licensee's Bid Deposit.
(b) The Security Deposit shall be held by the City without
liability for interest thereon, as security for the full and faithful
performance by the Licensee of each and every term and condition of this license
on the part of the Licensee to be observed and performed. The Licensee may
collect or receive annually any interest or income earned on bonds less any part
thereof or amount which the City is or may hereafter be entitled or authorized
by law to retain or to charge in connection therewith, whether as or in lieu of
administrative expense or custodial charge, or otherwise the City shall not be
obligated by this provision to place or to keep cash deposited hereunder in
interest-bearing bank accounts.
(c) Use and Return of Deposit
If any fees or other charges or sums payable by
Licensee to the City shall be overdue and unpaid or should the City make
payments on behalf of the Licensee, or should the Licensee fail to perform any
of the terms of this License, then Parks may, at its option, and without
prejudice to any other remedy which the City may have on account thereof, after
five (5) days written notice, appropriate and apply the Security Deposit or as
much thereof as may be necessary to compensate the City toward the payment of
license fees, charges, liquidated damages or other sums due from the Licensee or
towards any loss, damage or expense sustained by the City resulting from such
default on the part of Licensee. In such event, the Licensee shall restore the
Security Deposit to the original sum deposited within five (5) days after
written demand therefor. In the event Licensee shall fully and faithfully comply
with all of the terms, covenants and conditions of this license and pay all
License fees and other charges and sums payable by Licensee to the City, the
Security Deposit shall be returned to Licensee following the date of the
surrender of the Licensed Premises by the Licensee in compliance with the
provisions of this license.
ARTICLE VII
CREDITOR-DEBTOR PROCEEDINGS
In the event any bankruptcy, insolvency, reorganization or
other creditor-debtor proceedings shall be instituted by or against the Licensee
or its successors or assigns, or the guarantor, if any, the Security Deposit
shall be deemed to be applied first to the payment of license fees and/or other
charges due the City for all periods prior to the institution of such
proceedings and the balance, if any, of the Security Deposit may be retained by
the City in partial liquidation of the City's damages. In the event of any
bankruptcy, insolvency, reorganization or other creditor-debtor proceedings,
Commissioner
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has to right to terminate this license upon one (1) day's notice.
ARTICLE VIII
USE OF EQUIPMENT
Licensee shall have the use of all Fixed Equipment located on
the Licensed Premises.
ARTICLE IX
TITLE
(a) Commissioner represents that City has title to all
Fixed Equipment.
(b) Any Additional Fixed Equipment, except that which is
enumerated Licensee's List of Additional Fixed Equipment, annexed hereto as
Exhibit C, shall vest in and belong to the City at the City's option, which
option may be exercised at any time after the substantial completion of the
affixing of said equipment. Licensee must acquire and affix Additional Fixed
Equipment as provided in Article X.
ARTICLE X
LICENSEE'S ACQUISITION OF FIXED EQUIPMENT
In order to acquire and affix Fixed and Additional Fixed
Equipment to the Licensed Premises, Licensee shall:
(a) notify Commissioner of Licensee's intention to affix Fixed
and Additional Fixed Equipment so that Commissioner may, in his sole discretion,
inspect and approve such affixing; should Commissioner fail to disapprove same
within fifteen (15) days of said notice, then his approval will be deemed
granted; and
(b) supply Commissioner within thirty (30) days of delivering
Fixed and Additional Fixed Equipment to Licensed Premises, bills of sale or
other evidence of purchase so that Commissioner may amend Parks' schedule of
Fixed Equipment and have complete information regarding all inventory on
Licensed
Premises.
ARTICLE XI
EXPENDABLE EQUIPMENT
(a) Licensee shall supply at its own cost and expense all
Expendable Equipment required for the proper operation of this license, and to
replace same, at its own cost and expense when requested by Commissioner.
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(b) Title to all Expendable Equipment obtained by Licensee
shall remain in Licensee and such equipment shall be removed by Licensee at the
termination or expiration of this license. In the event such equipment remains
in the Licensed Premises following such termination or expiration, Commissioner
may treat such property as abandoned and charge all costs and expenses incurred
in the removal thereof to Licensee.
(c) The equipment to be removed by Licensee pursuant to
subsection (b) above, shall be removed from the Licensed Premises in such a way
as shall cause no damage to the Licensed Premises. Notwithstanding its vacating
and surrender of the Licensed Premises, Licensee shall remain liable to City for
any damage it may have caused to the Licensed Premises.
ARTICLE XII
OBLIGATION TO ACQUIRE
Licensee must acquire, replace, install or affix, at its sole
cost and expense, any equipment, materials and supplies required for the proper
operation of Licensed Premises as described herein or as reasonably required by
Commissioner.
ARTICLE XIII
MAINTENANCE OF LICENSED PREMISES, EQUIPMENT
AND CONDITION UPON SURRENDER
(a) Licensee, at its sole cost and expense and to the
satisfaction of Commmissioner, shall put, keep, landscape, repair, preserve in
good order Licensed Premises, which shall include the Fixed and Additional Fixed
Equipment. Licensee shall keep at all times Licensed Premises and the
surrounding area within the distance specified herein, clean, litter free, neat,
fumigated, disinfected, deodorized and in every respect sanitary. Licensee shall
provide regular cleaning and maintenance services for Licensed Premises.
(b) Notwithstanding the foregoing, at the expiration or sooner
termination of this license, Licensee shall surrender the Licensed Premises, and
the Fixed and Additional Fixed Equipment to which City holds title, in at least
as good a condition as said Licensed Premises, and the Fixed and Additional
Fixed Equipment were found by Licensee, reasonable wear and tear excepted.
(c) Licensee acknowledges, that it is acquiring the Licensed
Premises and Fixed Equipment thereon solely on reliance on its own
investigation, that no representations, warranties or statements have been made
by the City concerning the fitness thereof, and that by taking possession of the
Licensed Premises
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and Fixed Equipment, Licensee accepts them in their present condition "as is."
ARTICLE XIV
ALTERATIONS
(a) "Alteration" shall mean (excepting ordinary repair
and maintenance):
(i) any restoration (to original premises or in the
event of fire or other cause), rehabilitation, modification, addition
or improvement to Licensed Premises; or
(ii) any work affecting the plumbing, heating,
electrical, water, mechanical, ventilating or other systems of Licensed
Premises.
(b) Licensee may alter Licensed Premises only in accordance
with the requirements of subsection (c) of this Article. Alterations shall
become property of City upon their attachment, installation or affixing.
(c) In order to alter Licensed Premises pursuant to subsection
(b) of this Article, Licensee must:
(i) Obtain Commissioner's written approval (which
shall not be unreasonably withheld) for whatever designs, plans,
specifications, cost estimates, agreements and contractual
understandings that may pertain to contemplated purchases and/or work;
except that if Commissioner does not give Licensee written notice of
his objection to such submitted designs, plans, specifications, cost
estimates, agreements, and contractual understandings within thirty
(30) days of his receipt of same, then his approval will be deem
granted; and
(ii) insure that work performed and alterations
made on Licensed Premises are undertaken and completed 1. in
accordance with submissions approved pursuant to section (i)
of this Article, 2. in a good and workmanlike manner, and 3.
within a reasonable time;
(iii) notify Commissioner of completion of, and the
making final payment for, any alteration within ten (10) days after the
occurrence of said completion or final payment.
(d) Commissioner may, in his reasonable discretion, make
repairs, alterations, decorations, additions or improvements to Licensed
Premises at the City's expense, but nothing herein shall be deemed to obligate
or require Commissioner to make any
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repairs, alterations, decorations, additions, or improvements, nor shall this
provision in any way affect or impair Licensee's obligation herein in any
respect.
ARTICLE XV
IMPROVEMENT OR CORRECTION IN OPERATIONS
(a) Should Commissioner, in his sole judgment, which shall not
be arbitrary or capricious, decide that Licensee is not operating license in a
satisfactory manner, Commissioner may in writing order Licensee to improve
operations or correct such conditions as Commissioner may deem unsatisfactory.
In the event that Licensee fails to comply with such written notice or respond
in a manner satisfactory to Commissioner within fifteen (15) days from the
mailing of said notice, notwithstanding any other provisions herein, then
Commissioner shall terminate this License. If Licensee is prevented from
complying with the written notice for reasons beyond its control, then
Commissioner may not terminate this License until Licensee had been given a
reasonable opportunity to comply and has failed to do so.
(b) Should Commissioner, in his sole judgment, decide that an
unsafe or emergency condition exists on the Licensed Premises, after written
notification, Licensee shall have forty-eight (48) hours to correct such unsafe
or emergency condition. If such unsafe or emergency condition cannot be
corrected within said period of time, the Licensee shall notify the Commissioner
in writing and indicate the period within such condition shall be corrected.
Commissioner, in his discretion, may extend such period of time in order to
permit Licensee to cure, under such terms and conditions as Commissioner deems
appropriate. This notwithstanding, Licensee shall at all times comply with all
laws, rules, regulations and orders pursuant to Article XXIII herein. At no
time, however, shall the City be obligated to make repairs, replacements, or
additions of any kind to the Licensed Premises or Equipment thereon.
ARTICLE XVI
MERCHANDISE AND PRICES
Licensee warrants that all food, merchandise or supplies sold
pursuant to this License shall be pure and of good quality. Licensee shall
submit to Commissioner a list or schedule of the articles to be offered for sale
pursuant to this License and the prices to be charged for each article, and
Licensee shall offer for sale only such articles and at such prices as have been
approved by Commissioner, which shall not be unreasonably withheld. The schedule
of prices approved by Commissioner shall be printed, framed and displayed at the
expense of Licensee in a place and manner such that it may be readily seen by
the public.
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ARTICLE XVII
ADVERTISING
Licensee shall establish an appropriate advertising and
promotion program. Licensee shall have the right to print or to arrange for the
printing of programs for events containing any advertising matter except
advertising matter which is indecent, or in obvious bad taste, or which
demonstrates a lack of respect for public morals or conduct. Licensee may
release news items to the media as it sees fit. If the Commissioner in his
discretion, however, finds any releases to be unacceptable, then Licensee shall
cease or alter such releases as directed.
ARTICLE XVIII
UTILITIES
Parks, at its sole cost and expense, shall install or cause to
be installed, maintain all utility lines, meters and supplies of power necessary
for the proper operation of this license as described herein and pay all utility
cost. Notwithstanding the foregoing sentence, Licensee shall bear the cost of
the utilities associated with operation of the snack bar. Utilities may include,
but shall not be limited to electricity, gas, heat, coolant, water and sewer.
Parks does not make representation or warranty that existing cables, meters, or
supplies of power are adequate for Licensee's needs or that any entity can or
will make such service available.
ARTICLE XIX
PUBLIC TELEPHONE SERVICE
Licensee shall contract directly with the telephone company
for public telephone services at Licensed Premises.
ARTICLE XX
INFLAMMABLES
Licensee shall not use or permit the storage of any
illuminating oils, oil lamps, turpentine, benzine, naphtha, or similar
substances or explosives of any kind or any substances or things prohibited in
the standard policies of insurance companies in the State of New York.
ARTICLE XXI
SANITATION
Licensee shall be responsible for keeping all litter baskets
within such areas supplied with plastic bags and shall
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tie each bag as it becomes full and place it next to the litter basket. Licensee
shall provide adequate waste receptacles adjacent to the Licensed Premises. All
waste, garbage, refuse, rubbish and litter shall be collected, bagged and
removed as necessary by a private carting company at the Licensee's sole cost
and expense.
ARTICLE XXII
ACCESS
Licensee shall provide at all times, free access to the
Licensed Premises to the Commissioner or his representatives and to other City,
State and Federal officials having jurisdiction, for inspection purposes.
ARTICLE XXIII
COMPLIANCE WITH LAWS
(a) Licensee shall comply at its sole cost and expense, and
cause its employees and agents to comply with all applicable laws, rules,
regulations and orders now or hereafter prescribed by Commissioner, and to
comply with applicable all laws, rules, regulations and orders of any City,
State or Federal agency or governmental entity having jurisdiction over
operations of the License and the Licensed Premises and/or Licensee's use and
occupation thereof.
(b) Licensee shall not use or allow the Licensed Premises, or
any portion thereof, to be used or occupied for any unlawful purpose or in any
manner violative of a certificate pertaining to occupancy or use during the term
of this license.
ARTICLE XXIV
NON-DISCRIMINATION
(a) Licensee shall not discriminate against any employee or
applicant for employment because of race, creed, color, national origin, age,
sex, handicap, marital status, sexual orientation or affectional preference with
respect to all employment decisions including, but not limited to recruiting,
hiring, upgrading, demoting, promoting, selecting for training (including
apprenticeship), rates of pay and other forms of compensation, laying off,
terminating and all other terms and conditions of employment.
(b) All advertising for employment shall indicate that
Licensee is an Equal Opportunity Employer.
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ARTICLE XXV
NO WAIVER OF RIGHTS
No acceptance by Commissioner of any compensation, fees,
penalty sums, charges or other payments in whole or in part for any periods
after a default of any terms and conditions herein shall be deemed as a waiver
of any right on the part of Commissioner to terminate this license. No waiver by
Commissioner of any default on the part of Licensee in performance of any of the
terms and conditions herein shall be construed to be a waiver by the
Commissioner of any other or subsequent default in the performance of any of the
said terms and conditions.
ARTICLE XXVI
ASSUMPTION OF RISK
Licensee assumes all risk in the operation of this license.
ARTICLE XXVII
INDEMNIFICATION
(a) Licensee shall indemnify and save harmless Commissioner,
his agents and City against and from all losses, liabilities, suits,
obligations, fines, damages, penalties, claims, costs, charges, and expenses, of
any kind whatsoever including without limitation architects' and attorneys'
fees, costs and disbursements which may be imposed upon, incurred by or asserted
against Commissioner, his agents and City in whole or in part arising out of any
violation of any law, rule, regulation or order, and from any and all claims for
loss, damage or injury (including death) to persons or property of whatever kind
or nature arising from the operation of this License, or from the negligence or
carelessness of employees, agents, contractors, servants, sublicensees or
invitees of Licensee. Licensee shall indemnify any recoveries against
Commissioner, his agents and City individually and/or jointly arising from same
and shall reimburse Commissioner and/or City hereunder.
(b) The obligation of Licensee under this Article 27 shall not
be affected in any way by the absence or lapse in any case of covering insurance
or by the failure or refusal of any insurance policies affecting the Licensed
Premises.
(c) If any claim, action or proceeding is made or brought
against Commissioner, his agents or City by reason of any event to which
reference is made in subparagraph (a) hereof, then upon demand by Commissioner,
Licensee, at its sole cost and expense, shall resist or defend such claim,
action or proceeding in Commissioner's name, if necessary, by the attorneys for
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Licensee's insurance carrier (if such claim, action or proceeding is covered by
insurance), otherwise by such attorneys as Commissioner shall approve, which
approval shall not be unreasonably withheld or delayed.
(d) The provisions of this Article XXVII and all other
indemnity provisions of this License shall survive the expiration date with
respect to any liability, suits, obligation, fine, damage, penalty, claim, cost,
charge or expense arising out of or in connection with any action or failure to
take action or any other matter occurring prior to the expiration date of this
license.
ARTICLE XXVIII
WAIVER OF COMPENSATION
(a) Licensee hereby expressly waives any and all claims for
compensation for any and all loss or damage sustained by reason of any defects,
including, but not limited to, deficiency or impairment of the water supply
system, gas mains, electrical apparatus or wires furnished for the Licensed
Premises, or by reason of any loss of any gas supply, water supply, heat or
current which may occur from time to time from any cause, or for any loss
resulting from fire, water, windstorm, tornado, explosion, civil commotion,
strike or riot, and Licensee hereby expressly releases and discharges
Commissioner, his agents, and City from any and all demands, claims, actions,
and causes of action arising from any of the causes aforesaid.
(b) Licensee further expressly waives any and all claims for
compensation, loss of profit, or refund of its investment, if any, or any other
payment whatsoever, in the event this license is terminated by Commissioner
sooner than the fixed term because the Licensed Premises are required for any
park or other public purpose, or because the license was terminated or revoked
for any reason as provided herein.
ARTICLE XXIX
WORKERS' COMPENSATION AND INSURANCE
(a) Licensee shall, at its own cost and expense, procure and
maintain such insurance for the Term of this license as will:
(1) protect Licensee from claims under the Workers'
Compensation Act;
(2) protect and defend Licensee (including agents and
sublicensees, if any), the City and Commissioner from any
claims for property damage and for personal injuries,
including death, arising out of, occurring,
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or caused by operations under this license by Licensee or
anyone directly or indirectly employed by said Licensee, or
otherwise arising out of this license; this coverage shall
include coverage for equipment belonging to the City and acts
of vandalism.
(b) The policies shall provide the amounts of insurance
hereafter mentioned, and before delivery of the license, all certificates of
insurance shall be submitted to Commissioner for his approval and retention.
Each certificate shall be marked "Premium Paid" and shall have endorsed thereon:
"No cancellation of or change in this policy shall become effective until after
thirty (30) days notice by Certified Mail to Commissioner, Department of Parks
and Recreation, The Arsenal, Central Park, New York, New York 10021. Each policy
shall also provide that the insurer is obligated to provide a legal defense in
the event any claim is made against the City. If, at any time, any of said
policies shall terminate or become unsatisfactory to Commissioner as to form or
substance, or if a company issuing any such policies shall become unsatisfactory
to Commissioner, Licensee shall promptly obtain a new policy, and submit the
same to Commissioner for written approval, which shall not be unreasonably
withheld, and for retention thereof as hereinabove provided. Upon failure of
Licensee to maintain, furnish and deliver such insurance as above provided, this
License may, at the election of Commissioner, be suspended, discontinued or
terminated and any and all payments made by Licensee on account of this license
shall thereupon be retained by Commissioner as additional liquidated damages
along with the Security Deposit. Failure of Licensee to take out and/or maintain
or the taking out or maintenance of any required insurance shall not relieve
Licensee from any liability under the license, nor shall the insurance
requirements be construed to conflict with or limit the obligations of Licensee
concerning indemnification.
(c) If the Licensed Premises and/or Fixed Equipment shall be
damaged or destroyed by fire, or other covered cause, such damage shall be
promptly repaired or replaced such that the Licensed Premises and/or Fixed
Equipment are in the same condition as prior to such damage. At Licensee's
request, the City shall advance insurance proceeds received by Commissioner to
cover such costs except that such payments shall in no event exceed the amount
actually collected and received by Commissioner under the insurance policies.
Licensee shall immediately commence and diligently prosecute to completion any
restoration or repair within six months (or such longer period as is reasonably
neccessary to complete such restoration and repairs) after Licensee is notified
by Commissioner that insurance proceeds have been received and are available for
such work. Any extension of time for the completion of Restoration shall be
granted at the reasonable discretion of Commissioner. Reimbursement under this
provision shall be made within 120 days of the Commissioner's
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actual collection and receipt of insurance proceeds under the insurance policy.
(d) All insurance money paid to the City on account of such
damage or destruction, less the reasonable costs of the City with the recovery
or adjustment of the losses, shall be applied by the City to the payment of the
cost of the restoration, repairs, replacements, rebuilding or alterations,
including the costs of temporary repairs, provided the same has been approved by
Commissioner in writing, for the protection of property pending the completion
of permanent restoration, repairs, replacements, rebuilding or alterations
(collectively referred to as the "Restoration"), and shall be paid out from time
to time as such restoration progresses upon the written request of the Licensee
which shall be accompanied by the following:
(i) A certificate signed by an executive officer of
Licensee and signed also in accordance with
Article XXIX (c) by the architect or engineer in
charge of Restoration (who shall be satisfactory
to the Commissioner) dated not more than 30 days
prior to such request, setting forth the
following:
a. that the sum then requested either has
been paid by Licensee, or if in the event
the Licensee is unable to pay for the
Restoration, and funds are to be advanced
by the City pursuant to section c, that
said sum is justly due or shall become
due to contractors, subcontractors,
material men, engineers, architects or
other persons who shall or have rendered
services or furnished materials for said
Restoration, and giving a brief
description of such services and
materials and the several amounts so paid
and/or due or to become due to each of
said persons in respect thereof and the
sum then requested does not exceed the
value of the services and materials
described in the certificate;
b. that except for the amount, if any,
stated in said certificate pursuant to
the foregoing section XXIX (d) i.e., to
be due for services or materials, there
is no outstanding indebtedness known to
Licensee, after due inquiry, which is
then due for labor, wages, materials,
supplies or services in connection with
Restoration;
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<PAGE>
c. that the cost, as estimated by such
architect or engineer, of the Restoration
required to be done subsequent to the
date of such certificate in order to
complete the same does not exceed the
insurance money remaining in the hands of
the City after payment of the sum
requested in such certificate.
(ii) A Title Company search or other evidence
satisfactory to the Commissioner showing that
there has not been filed with respect to the
Licensed Premises any mechanic's or other lien
which has not been discharged of record.
(e) Upon compliance with the foregoing provisions of this
section, the City, shall, on behalf of the Licensee out of such insurance money,
pay or cause to be paid to the persons named in the certificate, pursuant to
section XXIX (d)(i), the respective amounts stated in said certificate to be due
to them and/or shall pay or cause to be paid to Licensee the amount stated in
said Certificate to have been paid by Licensee. Notwithstanding the foregoing in
the event that Licensee fails to undertake the Restoration of Licensed Premises
as a result of damage or destruction by fire or other casualty in accordance
with section XXIX (c) the Commissioner may but shall not be obligated to proceed
with such Restoration using insurance proceeds received for such purpose and may
terminate this License upon written notice to Licensee. However, if this license
is terminated as provided in this paragraph, Licensee shall be responsible for
the payment for any fees or other sums then due and owing to the City and the
City reserves any and all rights it may have against the Licensee in law or in
equity as a result of the termination of this License Agreement.
(f) Should Licensee fail, after notice from the City of the
need thereof, to perform its obligations required hereunder, City in addition to
all other available remedies may, but shall not be so obligated to enter upon
the Licensed Premises and perform Licensee's said failed obligations using any
equipment or materials on the premises suitable for such purposes. Licensee
shall forthwith on demand reimburse City for all costs and expenses so incurred.
(g) All required insurance must be issued by companies who are
rated "X-10" and are authorized to do business in the State of New York and must
be in effect and continue so during the life of the License in not less than the
following amounts:
Workmen's Compensation Insurance ...................... Per Statute
Employer's Liability for any one
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<PAGE>
occurrence not less than.................................$ 500,000
Comprehensive General Liability Insurance
(with Broad Form Property Damage, Products/
Completed Operations Liability, Contractual
Liability, Independent Contractors, Fire/
Legal Liability, Liquor Liability, Property
Insurance Endorsements) for any one occurrence
not less than............................................$1,000,000
Any Auto, Hired Auto, and Non-Owned Auto
Insurance for any one occurrence
not less than ...........................................$1,000,000
Builders' Risk Insurance for any one
occurrence
not less than ....................................replacement value
of building and fixed equipment
which shall be reassessed every three
years or at parks's discretion
Property Insurance
for any one occurrence
not less than ....................................replacement value
of building and fixed equipment
which shall be reassessed every three
years or at parks's discretion
(h) In the event that claims in excess of these amounts are
filed against the City, the amount of excess of such claims, or any portion
thereof, may be withheld from any payment due or to become due Licensee until
such time as Licensee shall furnish such additional security covering such
claims as may be reasonably determined by Commissioner. All policies, other than
Workmen's Compensation, shall name the City of New York as an additional insured
party.
ARTICLE XXX
TERMINATION
(a) Should Licensee breach or fail to comply with any of the
provisions of this License, any federal, state or local law, rule, regulation or
order affecting the License or the Licensed Premises with regard to any and all
matters, Commissioner may in writing order Licensee to remedy such breach or to
comply with such provision, law, rule,regulation or order, and in the event that
Licensee fails to comply with such written notice within thirty (30) days from
the mailing thereof subject to unavoidable delays beyond reasonable control of
licensee, then this License shall immediately terminate as though it were the
time provided above for the termination thereof. If said material breach or
failure to comply is corrected, and a second or repeated violation of the same
provision, law, rule, regulation
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<PAGE>
or order follows thereafter, Commissioner, by notice in writing, may revoke and
terminate this License, such revocation and termination to be immediately
effective on the mailing thereof, the License to terminate as though it were the
time provided above for the expiration thereof.
(b) The following shall constitute events of default for which
this License may be terminated on one (1) days notice: the filing of a petition
in bankruptcy; the adjudication of Licensee as a bankrupt; the appointment of
any receiver of Licensee's assets; the making of a general assignment for the
benefit of creditors; a petition or answer seeking an arrangement for the
reorganization of Licensee under any Federal Reorganization Act, including
petitions or answers under Chapter X or XI of the Bankruptcy Act; the occurrence
of any act which operates to deprive Licensee permanently of the rights, powers
and privileges necessary for the proper conduct and operation of the License;
the levy of any attachment or execution which substantially interferes with
Licensee's operations under this License and which attachment or execution is
not vacated, dismissed, stayed or set aside within a period of sixty (60) days.
(c) Nothing contained in paragraph (a) or (b) above shall be
deemed to imply or be construed to represent an exclusive enumeration of
circumstances under which Commissioner may terminate this License.
(d) Upon expiration or sooner termination of this License by
Commissioner, all rights of Licensee herein shall be forfeited without claim for
loss, damages, refund of investment or any other payment whatsoever against
Commissioner or City.
(e) In the event Commissioner terminates this License for
reasons related paragraphs (a) or (b) above any property of the Licensee on the
Licensed Premises may be held and used by Commissioner in order to operate the
License during the balance of the calendar year and may be held and used
thereafter until all indebtedness of the Licensee hereunder, at the time of
termination of this License, is paid in full.
(f) Notwithstanding anything herein to the contrary, Licensee
agrees that upon the expiration or sooner termination of this License, it shall
immediately cease all operations pursuant to this License and shall vacate the
Licensed Premises without any further notice by the City and without resort to
any judicial proceedings by the City. Upon expiration or sooner termination of
this License, City reserves the right to take immediate possession of the
Licensed Premises.
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<PAGE>
ARTICLE XXXI
INVESTIGATIONS
(a) The parties to this license shall cooperate fully and
faithfully with any investigation, audit or inquiry conducted by a State of New
York (hereinafter "State") or City governmental agency or authority that is
empowered directly or by designation to compel the attendance of witnesses and
to examine witnesses under oath, or conducted by the Inspector General of a
governmental agency that is a party in interest to the transaction, submitted
bid, submitted proposal, contract, lease, permit, or license that is the subject
of the investigation, audit or inquiry.
(b) (i) If any person who has been advised that his or her
statement, and any information from such statement, will not be used against him
or her in any subsequent criminal proceeding refuses to testify before a grand
jury or other governmental agency or authority empowered directly or by
designation to compel the attendance of witnesses and to examine witnesses under
oath concerning the award of or performance under any transaction, agreement,
lease, permit, contract, or license entered into with the City, the State, or
any political subdivision or public authority thereof, or the Port Authority of
New York and New Jersey, or any local development corporation within the City,
or any public benefit corporation organized under the laws of the State of New
York, or;
(ii) If any person refuses to testify for a
reason other than the assertion of his or her privilege against self
incrimination in an investigation, audit or inquiry conducted by a City or State
governmental agency or authority empowered directly or by designation to compel
the attendance of witnesses and to take testimony concerning the award of, or
performance under, any transaction, agreement, lease, permit, contract, or
license entered into with the City, the State, or any political subdivision
thereof or any local development corporation within the City, then;
(c) (i) The Commissioner or agency head whose agency is a
party in interest to the transaction, submitted bid, submitted proposal,
contract, lease, permit, or license shall convene a hearing, upon not less than
five (5) days written notice to the parties involved to determine if any
penalties should attach for the failure of a person to testify.
(ii) If any non-governmental party to the hearing
requests an adjournment, the Commissioner or agency head who convened the
hearing may, upon granting the adjournment, suspend any contract, lease, permit,
or license pending the final determination pursuant to paragraph (e) below
without the City incurring any penalty or damages for delay or otherwise.
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<PAGE>
(d) The penalties which may attach after a final determination
by the Commissioner or agency head may include but shall not exceed:
(i) The disqualification for a period not to
exceed five (5) years from the date of an adverse determination of any person or
entity of which such person was a member at the time the testimony was sought,
from submitting bids for, or transacting business with, or entering into or
obtaining any contract, lease, permit or license with or from the City; and/or
(ii) The cancellation or termination of any and
all existing City contracts, leases, permits, or licenses that the refusal to
testify concerns and that have not been assigned as permitted under this
license, nor the proceeds of which pledged, to an unaffiliated and unrelated
institutional lender for fair value prior to the issuance of the notice
scheduling the hearing, without the City incurring any penalty or damages on
account of such cancellation or termination; monies lawfully due for goods
delivered, work done, rentals, or fees accrued prior to the cancellation or
termination shall be paid by the City.
(e) The Commissioner or agency head shall consider and address
in reaching his or her determination and in assessing an appropriate penalty the
factors in paragraphs (i) and (ii) below. He or she may also consider, if
relevant and appropriate, the criteria established in paragraphs (iii) and (iv)
below in addition to any other information which may be relevant and
appropriate.
(i) The party's good faith endeavors or lack
thereof to cooperate fully and faithfully with any governmental investigation or
audit, including but not limited to the discipline, discharge, or disassociation
of any person failing to testify, the production of accurate and complete books
and records, ad the forthcoming testimony of all other members, agents,
assignees or fiduciaries whose testimony is sought.
(ii) The relationship of the person who refused
to testify to any entity that is a party to the hearing, including, but not
limited to, whether the person whose testimony is sought has an ownership
interest in the entity and/or the degree of authority and responsibility the
person has within the entity.
(iii) The nexus of the testimony sought to the
subject entity and its contracts, leases, permits or licenses with the City.
(iv) The effect a penalty may have on an
unaffiliated and unrelated party or entity that has a significant interest in an
entity subject to penalties under (d) above, provided that the party or entity
has given actual notice to the
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<PAGE>
Commissioner or agency head upon the acquisition of the interest, or at the
hearing called for in (c) (i) above gives notice and proves that such interest
was previously acquired. Under either circumstance the party or entity must
present evidence at the hearing demonstrating the potentially adverse impact a
penalty will have on such person or entity.
(f) (i) The term "license" or "permit" as used herein shall be
defined as a license, permit, franchise or concession not granted as a matter of
right.
(ii) The term "person" as used herein shall be
defined as any natural person doing business alone or associated with another
person or entity as a partner, director, officer, principal or employee.
(iii) The term "entity" as used herein shall be
defined as any firm, partnership, corporation, association, or person that
receives monies, benefits, licenses, leases, or permits from or through the City
or otherwise transacts business with the City.
(iv) The term "member" as used herein shall be
defined as any person associated with another person or entity as a partner,
director, officer, principal or employee.
(g) (1) In addition to and notwithstanding any other provision
of this License the Commissioner or agency head may in his or her sole
discretion terminate this agreement upon not less than three (3) days written
notice in the event Licensee fails to promptly report in writing to the
Commissioner of Investigation of the City of New York any solicitation of money
goods requests for future employment or other benefit or thing of value, by or
on behalf of any employee of the City of other person, firm, corporation or
entity for any purpose which may be related to the procurement or obtaining of
this agreement by the Licensee, or affecting the performance or this License
Agreement.
ARTICLE XXXII
WAIVER OF TRIAL BY JURY
The parties hereto waive trial by jury in any action,
proceeding, or counterclaim brought by either of the parties against the other
in any matter related to this license. Any action taken by Commissioner relating
to this license may only be challenged in a proceeding instituted in New York
County pursuant to CPLR Article 78.
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<PAGE>
ARTICLE XXXIII
CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE
(a) This license shall be deemed to be executed in the City of
New York, State of New York, regardless of the domicile of the Licensee, and
shall be governed by and construed in accordance with the laws of the State of
New York.
(b) Any and all claims asserted by or against the City arising
under this license or related thereto shall be heard and determined either in
the courts of the United States located in New York City ("Federal Courts") or
in the courts of the State of New York ("New York State Courts") located in the
City and County of New York. To effect this License Agreement and intent,
Licensee agrees:
(c) If the City initiates any action against the Licensee in
Federal Court or in New York State Court, service of process may be made on the
Licensee either in person, wherever such Licensee may be found, or by registered
mail addressed to the Licensee at its address set forth in this license, or to
such other address as the Licensee may provide to the City in writing; and
(d) With respect to any action between the City and the
Licensee in New York State Court, the Licensee hereby expressly waives and
relinquishes any rights it might otherwise have (i) to move to dismiss on
grounds of forum non conveniens, (ii) to remove to Federal Court; and (iii) to
move for a change of venue to a New York State Court outside New York County.
(e) With respect to any action between the City and the
Licensee in Federal Court located in New York City, the Licensee expressly
waives and relinquishes any right it might otherwise have to move to transfer
the action to a United States Court outside the City of New York.
(f) If the Licensee commences any action against the City in a
court located other than in the City and State of New York, upon request of the
City, the Licensee shall either consent to a transfer of the action to a court
of competent jurisdiction located in the City and State of New York or, if the
court where the action is initially brought will not or cannot transfer the
action, the Licensee shall consent to dismiss such action without prejudice and
may thereafter reinstitute the action in a court of competent jurisdiction in
New York City.
(g) If any provision(s) of this Article is held unenforceable
for any reason, each and all other provision(s) shall nevertheless remain in
full force and effect.
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<PAGE>
ARTICLE XXXIV
PAYMENTS AND NOTICES
(a) Any license fees, charges or sums payable by Licensee to
City shall be made to the City of New York at The Arsenal, Central Park, New
York, New York 10021.
(b) Where provision is made herein for notice to be given in
writing, the same shall be given by hand delivery or by mailing a copy of such
notice by certified mail, return receipt requested, addressed to Commissioner or
to the attention of Licensee or to the General Counsel of Licensee at their
respective addresses provided in this License, or other address as Licensee
shall have filed with Commissioner.
ARTICLE XXXV
LATE CHARGES
In the event that payment of license fees, percentage fees or
other charges shall become overdue for fifteen (15) days beyond the date on
which it is due and payable as provided in this license, a late charge of two
percent (2%) per month (computed on a thirty (30) day month) from the date it
was due and payable on the sums so overdue shall become immediately due and
payable to Commissioner as liquidated damages for the administrative cost and
expenses incurred by Commissioner by reason of Licensee's failure to make prompt
payment and said late charges shall be payable by Licensee without notice or
demand. If the late fee and all arrears (including prior 2% charges) are not
paid in full by the 1Oth day of the month following the month in which it shall
be due, or is already past due, an additional charge of 2% of the total of such
fee and arrears shall be added thereto and shall be payable and collectable with
the next monthly license fee installment. Failure to abide by the terms of this
Article shall be presumed to be a failure to substantially comply with the
terms, conditions and covenants of this License: Agreement and shall be a
default hereunder. No failure by Commissioner to insist upon the strict
performance by Licensee of Licensee's obligations to pay late charges shal1
constitute a waiver by Commissioner of his right to enforce the provisions of
this Article. If any local, state or federal law or regulation which limits the
rate of interest which can be charged pursuant to this Article is enacted, the
rate of interest set forth in this Article shall not exceed the maximum rate
permitted under such law or regulation.
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<PAGE>
ARTICLE XXXVI
ENTIRE AGREEMENT
This license constitutes the whole of the agreement between
the parties hereto, and no other representation made heretofore shall be binding
upon the parties hereto. Any changes, additions or amendments not otherwise
provided for herein shall be in writing and shall be signed by the parties
hereto.
ARTICLE XXXVII
MODIFICATION OF AGREEMENT
This license may be modified from time to time by agreement in
writing, but no modification of this license shall be in effect until such
modification has been agreed to in writing and duly executed by the party or
parties affected by said modification.
ARTICLE XXXVIII
PARAGRAPH AND OTHER REFERENCES
(a) All references herein to "Paragraph(s)",
"Subparagraph(s)", and "Section(s)" shall be understood to pertain to portions
of this license.
(b) The Table of Contents and division titles found herein are
inserted for reference only and in no way define, limit, describe or in any way
affect the scope or intent or meaning of this license.
ARTICLE XXXIX
TRUST FUNDS
Immediately upon Licensee's receipt of monies from all
operations under this license, the percentage of paid monies belonging to the
City, as provided, shall immediately vest in and become the property of the City
and are hereby deemed to be trust funds and are to be held by Licensee as
trustee for the benefit of City until the said funds are paid over and delivered
to Commissioner.
ARTICLE XL
PROCUREMENT OF AGREEMENT
(a) Licensee represents and warrants that no person or selling
agency has been employed or retained to solicit or secure this license upon an
agreement or understanding for a commission, percentage, brokerage fee,
contingent fee or any other
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<PAGE>
compensation. Licensee further represents and warrants that no payment, gift or
thing of value has been made, given or promised to obtain this or any other
agreement between the parties. Licensee makes such representations and
warranties to induce the City to enter into this license and the City relies
upon such representations and warranties in the execution hereof.
(b) For a breach of violation of such representations or
warranties, the Commissioner shall have the right to annul this license without
liability, entitling the City to recover all monies paid hereunder, if any and
the Licensee shall not make any claim for, or be entitled to recover, any sum or
sums due under this license. This remedy, if effected, shall not constitute the
sole remedy afforded the City for the falsity or breach, nor shall it constitute
a waiver of the City's right to claim damages or refuse payment or to make any
other action provided for by law or pursuant to this license.
ARTICLE XLI
CUMULATIVE REMEDIES - NO WAIVER
The specific remedies to which the City may resort under the
terms of this license are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which it may be lawfully entitled in case
of any other default hereunder. The failure of the City to insist in any one or
more cases upon the strict performance of any of the covenants of this license,
or to exercise any option herein contained, shall not be construed as a waiver
or relinquishment for the future of such covenants or option. A receipt by the
City of any license fee or other monies with knowledge of the occurrence of a
default shall not be deemed a waiver thereof, and no waiver, change,
modification or discharge by either parties hereto of any provision of this
License shall be deemed to have been made or shall be effective unless expressed
in writing and signed by the party against whom such waiver, change,
modification or discharge is sought. In addition to the other remedies in this
license provided, the City shall be entitled to the restraint by injunction of
the violation, or attempted or threatened violation, of any of the covenants,
conditions or provisions of this license or to a decree compelling specific
performance of any of such covenants, conditions or provisions.
ARTICLE XLII
SEVERABILITY; INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this license or the application
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this license, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid
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<PAGE>
or unenforceable, shall not be affected thereby, and each term and provision of
this license shall be valid and enforceable to the fullest extent permitted by
law.
ARTICLE XLIII
CONFLICT OF INTEREST
Licensee represents and warrants that neither it nor any of
its directors, officers, members, partners or employees, has any interest nor
shall they acquire any interest, directly or indirectly which would or may
conflict in any manner or degree with the performance or rendering of the
services herein provided. Licensee further represents and warrants that in the
performance of this License no person having such interest or possible interest
shall be employed by it. No elected official or other officer or employee of the
City or Department, nor any person whose salary is payable, in whole or part,
from the City treasury, shall participate in any decision relating to this
license which affects his/her personal interest or the interest of any
corporation, partnership or association in which he/she is, directly or
indirectly, interested nor shall any such person have any interest, direct or
indirect, in this license or in the proceeds thereof.
ARTICLE XLIV
EMPLOYEES
All experts or consultants or employees of Licensee who are
employed by Licensee to perform work under this license are neither employees of
the City nor under contract to the City and Licensee alone is responsible for
their work, direction, compensation and personal conduct while engaged under
this license. Nothing in this license shall impose any liability or duty on the
City for acts, omissions, liabilities or obligations of Licensee or any person,
firm, company, agency, association, corporation or organization engaged by
Licensee as expert, consultant, independent contractor, specialist, trainee,
employee, servant, or agent or for taxes of any nature including but not limited
to unemployment insurance, workers' compensation, disability benefits and social
security.
ARTICLE XLV
INDEPENDENT STATUS OF LICENSEE
Licensee is not an employee of parks or the City and in
accordance with such independent status neither Licensee nor its employees or
agents will hold themselves out as, nor claim to be officers or employees of the
City, or of any department, agency, or unit thereof, they will not make any
claim, demand, or application to or for, any right or privilege applicable to an
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<PAGE>
officer of, or employee of, the City, including but not limited to, workers'
compensation coverage, unemployment insurance benefits, social security coverage
or employee retirement membership or credit.
ARTICLE XLVI
ALL LEGAL PROVISIONS DEEMED INCLUDED
Each and every provision of law required to be inserted in
this license shall be and is inserted herein. Every such provision is to be
deemed to be inserted herein, and if, through mistake or otherwise, any such
provision is not inserted, or is not inserted in correct form, then this license
shall, forthwith upon the application of either party, be amended by such
insertion so as to comply strictly with the law and without prejudice to the
rights of either party hereunder.
ARTICLE XLVII
JUDICIAL INTERPRETATION
Should any provision of this Permit require judicial
interpretation, it is agreed that the court interpreting or considering same
shall not apply the presumption that the terms hereof shall be more strictly
construed against a party by reason of the rule of conclusion that a document
should be construed more strictly against the party who itself or through its
agent prepared the same, it being agreed that all parties hereto have
participated in the preparation of this Permit and that legal counsel was
consulted by each responsible party before the execution of this Permit.
(END OF GENERAL PROVISIONS)
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<PAGE>
EXHIBIT B
SCHEDULE OF CAPITAL IMPROVEMENT ACTIVITIES
<PAGE>
EXHIBIT B
SCHEDULE OF CAPITAL IMPROVEMENT ACTIVITIES
BATTERY PARX RESTAURANT AND PARRS DEPARTMENT FACILITY
CAPITAL IMPROVEMENTS TO BE COMPLETED BY
LICENSEE, INCLUDING NEW CONSTRUCTION AND
IMPROVEMENTS TO EXISTING STRUCTURES
CONSTRUCTION ACTIVITIES
Renovation of Building "A" to accommodate the followina uses:
1. Concession Stand Improvements to include the following:
a. Install quarry tile floor.
b. Install ceramic tile walls.
c. Install interior gates.
d. Install front serving counters with sneeze quards.
e. Remove overhang presently attached to building.
f. Repair exterior granite and close up ticket booth
windows.
g. Provide and install necessary equipment to serve concession
menu in a quality manner.
These improvements shall be completed no later than May 31,
1995.
2. Interior Dining Room, Roof-top Dining Area and Display
Kitchen Improvements to include the following:
a. Complete renovation of entry to create reception area.
b. Provide and install all dining room furnishings.
c. Construct large spiral staircase leading to rooftop
dining for guests.
d. Construct roof-top dining area including bus stations, bar,
access to the kitchen through separate stairs leading to the
back of the house, wind shields, radiant heaters for patron
comfort and placement of planter boxes to aesthetic
improvement.
e. Construct display kitchen including a front counter with
painted raised paneled wood, a large copper clad exhaust hood,
remove existing drop ceiling and overhang and install wood
burning rotisseries and grills as the display kitchen's focal
point.
These improvements shall be completed no later than May 31,
1996.
3. Outdoor Patio Improvements to include the following:
a. Install continuous planter boxes incorporatlog bench
seating to define the area.
<PAGE>
b. Provide cafe tables and chairs, outdoor bar and other
furnishings for the area.
c. Replace existing benches around trees with a pipe railing to
protect trees' roots.
d. Install brick pavers in place of the current asphalt.
These improvements shall be completed no later than May 31,
1996.
4. Public Restroom Facility Improvements to include the following:
a. Construction of a separately accessible comfort
station/restroom facility for use by the general public with
no fewer than 24 stalls in the women's room and no fewer than
11 stalls and 10 urinaln in the men's room.
b. Installation of seperate metering capabilities fore
electrical and water service.
These improvements shall be completed no later than May 31,
1997.
5. Building Exterior Improvements to include the following:
a. Remove existing overhang from the structure and repair
the granite wall.
b. Cover openings in granite wall previously used for ticket
sales with matching granite.
c. Roll down gates will either be reversed or removed entirely
and will be made unobtrusive when the property is in
operation.
These improvements shall be completed no later than May 31,
1995.
Concerning Building "B" - Kiosk Improvements to include the
following:
a. Complete renovation of the existing kiosk to
accommodate merchandise shop, tourist information center
and/or food and beverage service operation.
These improvements shall be completed no later than May 31,
1995.
Concerning Building "C" - Parks Denartment Facility
Improvements to include the following:
a. Substantial rehabilitation including removal of
existing interior furnishings and reconstruction to
accommodate office, equipment storage and training rooms as
well as separate staff restrooms, shower rooms and changing
areas for women and men Parks Department personnel.
<PAGE>
These improvements shall be completed no later than May 31,
1997.
EXPENDITURE SCHEDULE
In accordance with the approval processes outlined in this License Agreement,
the Licensee is responsible for completing the Capital Improvement activities
listed above in accordance with the following expenditure schedule:
1. By May 31, 1995 : $220,500
2. By May 31, 1996 : 390,500
3. By May 31, 1997 : 240,000
TOTAL MINIMUM VALUE
OF CAPITAL IMPROVEMENTS: $851,000
<PAGE>
EXHIBIT C
SITE PLAN
<PAGE>
EXHIBIT C
SITE PLAN OF LICENSED PREMISES
[Diagram]
LIMIT LINE OF LICENSED PREMISES
Main Biliding: Building A, patio, adjacent landscaping
and parking.
Kiosk: 20' out from perimeter of Building
Parks Facility: Footprint of Building C.
Shellbank Restaurant Corp. - Battery Park Restaurant
Page 1 of 2
<PAGE>
EXHIBIT C
SITE PLAN OF LICENSED PREMISES
[Diagram]
Shellbank Restaurant Corp. - Battery Park Restaurant
Page 2 of 2
<PAGE>
EXHIBIT D
EMPLOYEE UNIFORMS
<PAGE>
EXHIBIT D
EMPLOYEE UNIFORMS
Uniforms for Snack Bar Serving Personnel
[Photograph]
Page 1 of 2
<PAGE>
EXHIBIT D
EMPLOYEE UNIFORMS
Uniforms for Restaurant Serving Personnel
To be supplied by Licensee at least 30 days
prior to opening restaurant for business.
Page 2 of 2
<PAGE>
EXHIBIT E
APPROVED MENU, MERCHANDISE PRICE LIST AND OPERATING HOURS
<PAGE>
EXHIBIT E
APPROVED MENU, MERCHANDISE PRICE LIST AND OPERATING HOURS
BATTERY PARK SNACK BAR MENU
Regular Frankfurter
No less than 2 oz. (eight to the pound) 1.75
Jumbo Frankfurter
No less than 2.66 oz. (six to the pound) 2.50
Hamburger served with lettuce, tomato and onion 3.50
Cheeseburger served with lettuce,
tomato and onion 4.00
Chicken Breast Sandwich served with lettuce,
tomato and onion 5.25
Nachos 2.75
Nacho Supreme 3.75
Soda Small 12 oz. (with ice) 1.00
Medium 16 oz. (with ice) 1.50
Large 20 oz. (with ice) 1.75
Beer Small 16 oz. 3.00
Large 20 oz. 4.00
Hot Chocolate 8 oz. 1.00
Special Tea 8 oz. 1.00
Mineral Water 11 oz. 1.50
Coffee/Decaf 8 oz. .75
Prices are maximum allowable and are exclusive of sales tax.
Operating hours to be supplied by Licensee at
least 30 days prior to opening snack bar for
business.
Page 1 of 3
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EXHIBIT E
APPROVED MENU, MERCHANDISE PRICE LIST AND OPERATING HOURS
BATTERY PARK KIOSK MERCHANDISE AND PRICE LIST
To be supplied by Licensee at least
30 days prior to opening kiosk for
business.
Page 2 of 3
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EXHIBIT E
APPROVED MENU, MERCHANDISE PRICE LIST AND OPERATING HOURS
BATTERY PARK RESTAURANT MENU
To be supplied by
Licensee at least 30 days
prior to opening
restaurant for business.
Page 3 of 3
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EXHIBIT F
SIGNAGE
[Diagram]
Information Signs
At five gangway entrances
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EXHIBIT F
SIGNAGE
F.1 The Licensee may, subject to the final approval of the Commissioner
as to specific locations, place and maintain informational signage, directing
the general public to services within Battery Park including the following:
Statue of Liberty/Ellis Island Ferry, Castle Clinton, restaurant, and restrooms.
Such signage may be located on the fence railing along the Promenade near each
gangway to the Statue of Liberty ferry, on the fence railing across from Castle
Clinton, and on the fence railing adjacent to Pier A. In addition, the Licensee
may, subject to the final approval of the Commissioner as to specific location
and design, place and maintain a sign, approximately 2' x 3,' bearing the name
of the restaurant, and located along State Street near an entrance to Battery
Park.
F.2 Any such signage shall be prepared at the sole cost of the Licensee
and located as depicted on the sketch on the next page.
Page 1 of 2
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EXHIBIT F
SIGNAGE
Page 2 of 2
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EXHIBIT G
INCOME AND EXPENSE STATEMENT