License Agreement - TAM Concessions Inc. and City of New York
[Logo] City of New York The Arsenal
Parks of Recreation Central Park
New York, New York 10021
Henry J. Stern
Commissioner
LICENSE
AGREEMENT
between
TAM Concessions, Inc.
and
CITY OF NEW YORK
DEPARTMENT OF PARKS AND RECREATION
Contract No. 025-M
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TABLE OF CONTENTS
ARTICLE PAGE
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I Grant of License 2
II Term of License 3
III Commissioner's Representation 4
IV Payments 4
V Operations 6
VI Improvements 7
EXHIBITS
--------
A General Provisions
B Floor Plan
C Floor Plan - Patio
D Licensed Premises
E Schedule of Equipment
F Stipulation
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AGREEMENT made this 8th day of February, 1985 between The City
of New York ("City") acting by and through Henry J. Stern, Commissioner of the
Department of Parks and Recreation ("Commissioner" and "Department"
respectively) whose address is The Arsenal, Central Park, New York, New York
10021 and TAM Concessions, Inc. ("Licensee"), a domestic corporation organized
under the laws of the State of New York with principal offices at 1163 Forest
Avenue, Staten Island, New York 10310.
W I T N E S S E T H :
WHEREAS, the Department, pursuant to law, has jurisdiction
over the parks of the City and desires to provide boat rental, bicycle rental
and refreshment facilities at the Loeb Memorial Boathouse in Central Park for
the accommodation and convenience of the public; and
WHEREAS, the Department received Concessions Review Committee
approval to award the refreshment and boat and bicycle rental concessions at the
Loeb Memorial Boathouse to TAM Concessions, Inc. on November 4, 1983; and
WHEREAS, The Department and Licensee entered into a Temporary
Permit agreement, dated January 9, 1984, authorizing Licensee's temporary
operation of the above mentioned concessions pending execution of a formal
license agreement authorizing Licensee's continued operation of said concessions
as well as renovation of the Loeb Memorial Boathouse; and
WHEREAS, the Department and Licensee have concluded
negotiations of a formal license agreement and deem it expedient
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to cancel said Temporary Permit and enter into a formal license agreement; and
WHEREAS, the Department shall hereby terminate and Licensee
shall hereby surrender said Temporary Permit upon execution of this license
agreement by both parties hereto;
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties hereto agree as follows:
ARTICLE 1
GRANT OF LICENSE
1. The above mentioned Temporary Permit is hereby cancelled
and annulled effective upon execution of this License Agreement ("License") by
both parties hereto; and Commissioner hereby grants to Licensee and Licensee
hereby accepts from Commissioner a License to:
(a) operate the food, bicycle and boat rental concessions at
the Loeb Memorial Boathouse ("Licensed Premises," as more particularly described
in Article I(i) of General Provisions attached hereto as Exhibit A and made a
part hereof) located at 72nd Street in Central Park, New York, pursuant to the
terms and conditions herein. Additionally, Licensee shall have the right to
serve alcoholic beverages at the Licensed Premises upon securing a liquor
license for such purpose; however, no alcoholic beverages (with the exception of
wine and beer) may be sold before 5:00 p.m. at the Licensed Premises without the
prior written approval of the Commissioner.
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(b) undertake renovation of the Boathouse and adjacent
property, pursuant to the terms and conditions herein and as set forth in
Article 6 and in accordance with the plans submitted to and approved by the New
York City Landmarks Commission in April, 1982 and subsequent amendments
submitted to and approved by the City Landmarks Commission on March 19, 1984 and
June 29, 1984.
(c) sell Park related merchandise and utilize the facility as
an informal information center for park visitors, subject to the Department's
approval.
2. Licensee shall purchase boats approved by the Department.
Additional boats shall be purchased by Licensee as necessary, subject to the
Department's approval.
3. Licensee's failure to operate the concessions in accordance
with the terms and conditions of this License shall be a material breach of this
License and shall result in its immediate termination.
ARTICLE 2
TERM OF LICENSE
The Term of this License shall commence upon completion of
improvements as provided in Article 6 herein or June 30, 1985 whichever occurs
sooner. This License is terminable at will by Commissioner upon ten (10) days
written notice to Licensee or as otherwise provided herein. Said termination
shall be neither arbitrary nor capricious. In the event such notice is not
given, the Term shall continue for a period of fifteen (15) years from
commencement thereof.
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The Commissioner, the City and its employees shall not be
liable for damages to Licensee in the event that this License is revoked or
terminated by Commissioner.
ARTICLE 3
COMMISSIONER'S REPRESENTATION
Commissioner represents, to the best of his knowledge, that as
of the date hereof, no plans now exist for the use of Licensed Premises other
than its continued use as a concession as described in Article 1.
ARTICLE 4
PAYMENTS
(a) Licensee shall pay to City an annual fee for each of the
fifteen (15) years of operation authorized under this License according to the
following payment schedule, the greater of:
75% OF SALE OF BICYCLE &
PREVIOUS FOOD AND BOAT
ANNUAL YEAR'S MERCHANDISE RENTALS
MINIMUM GROSS % OF GROSS % OF GROSS
TERM FEE or RECEIPTS or RECEIPTS plus RECEIPTS
---- --- -------- -------- --------
Year 1 $40,000 8% 10%
2 $45,000 8% 10%
3 $50,000 9% 11%
4 $55,000 9% 11%
5 $60,000 10% 12%
6 $65,000 10% 12%
7 $70,000 11% 13%
8 $75,000 11% 13%
9 $75,000 11% 14%
10 $75,000 12% 14%
11 $80,000 12% 15%
12 $80,000 12% 15%
13 $85,000 13% 16%
14 $90,000 13% 16%
15 $90,000 13% 17%
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(b) Gross Receipts is defined in Article I(h) of Exhibit A.
(c) Upon commencement of this License, as provided in Article
2 herein, Licensee shall pay one-twelfth (1/12) of the Annual Minimum Fee. Each
month thereafter Licensee shall pay one/twelfth (1/12) of the Annual Minimum Fee
plus any percentage of Gross Receipts due, on or before the tenth (10th) of each
month. Except that when fees paid by Licensee pursuant to paragraph 4(a) herein
exceed the applicable Minimum Annual Fee then thereafter Licensee shall pay only
the annual percentage fee for the remainder of the operation year.
(d) A 2% late payment penalty will be assessed for any fee
payment not received by the Department on or prior to the payment dates
specified in this License. In addition, a 2% monthly interest charge shall be
applied to any unpaid balance.
(e) Licensee shall deposit all receipts from operations under
this License in a separate bank account maintained in the name of Licensee. No
receipts generated from any other business of Licensee shall be deposited in
this account, except as may be required for the operation of this License.
(f) Payments by Licensee to Department shall be made to the
City of New York at The Arsenal, Central Park, New York, New York 10021. Notice
from Licensee or Commissioner shall be sent by certified mail, return receipt
requested, or delivered to Commissioner at such address.
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ARTICLE 5
OPERATIONS
(a) A floor plan specifying the dimensions of the areas of the
Licensed Premises which will be designated for use as a seated fast food dining
area, fast food pick-up, terrace, cafe, ice cream and beverage area and sundries
counter is attached hereto as Exhibit B and hereby made a part of this License.
A floor plan specifying the dimensions of the area of the Licensed Premises
which will be designated for use as a patio is attached hereto as Exhibit C and
hereby made a part of this License. The cafe and patio areas shall not be
expanded or altered over the Term of this License from the dimensions specified
on Exhibits B&C without the prior written approval of the Commissioner.
(b) Minimum Hours of Operation
Fast Food Area:
Spring (April 1st - May 29th) 9:00 a.m. - 6:30 p.m. 7 Days
Summer (May 30th - Sept. 15th) 9:00 a.m. - 6:30 p.m. 7 Days
Fall (Sept. 16th - Nov. 16th) 9:00 a.m. - 6:00 p.m. 7 Days
Winter (Nov. 17th - March 31st) 9:00 a.m. - 4:30 p.m. 7 Days
Cafe:
Year-Round 11:30 a.m. -11:30 p.m. 6 Days
Lunch 11:45 a.m. - 3:00 p.m.
Dinner 7:30 p.m. -11:30 p.m.
Any change in the hours of operation from those set out above
shall be subject to the prior approval of Commissioner.
(c) Licensee shall personally operate this License or employ a
manager satisfactory to Commissioner and Licensee shall
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replace said manager or any employee whenever demanded by Commissioner.
(d) Licensee shall have sufficient personnel on duty at
Licensed Premises for the proper operation of this License.
(e) The locations of the bicycle rental and storage areas are
subject to the Department's prior approval.
(f) Licensee's staff shall wear uniforms of a design approved
by the Department.
(g) Both the menus and the prices listed thereon shall be
subject to the prior approval of the Commissioner.
(h) Rates charged by Licensee for boat and bicycle rentals
shall be subject to the prior approval of the Commissioner.
(i) The patio, as shown on Exhibit C,may be used by Licensee
to cater parties and special events.
ARTICLE 6
IMPROVEMENTS
(a) Licensee agrees to spend or cause to be expended a minimum
investment of Six Hundred Twenty Seven Thousand Dollars ($627,000) in value for
capital repairs, improvements, renovation and modification of Licensed Premises,
which construction shall be satisfactory to the Commissioner, and in accordance
with the provisions of Article l(b). The improvements shall include but not be
limited to, renovation of the public bathrooms and cafeteria kitchen. Licensee
shall, upon the completion of Construction, furnish the Commissioner with a
certified statement of the costs of Construction including a description of the
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Construction and detailing the actual costs of such Construction. Licensee shall
keep accurate books and records of account of Construction costs which shall be
segregated from other accounts to permit audit by the Department or the
Comptroller upon their request.
(b) Licensee has obtained the approval of the New York City
Landmarks Commission for all plans, designs and specifications for Construction
and has submitted the plans, designs and specifications to the Commissioner for
his review. On or before November 31, 1984, Licensee shall submit plans, designs
and specifications to the New York City Department of Buildings, and any other
municipal agency having regulatory authority over the renovation of Licensed
Premises for their review and approval. Licensee shall provide Commissioner with
copies of each of the above-mentioned approvals within ten (10) days of
Licensee's receipt of same.
(c) Licensee shall deliver to Commissioner, within ten (10)
days after all approvals have been obtained, an executed surety bond in the
amount of the total cost of the Construction required hereunder naming the City
as obligee, to secure License's full and satisfactory performance of its
obligation under this section, and having as surety thereunder a surety company
approved by the City of New York and authorized to do business in the State of
New York. It is expressly agreed between the parties hereto that failure to
comply with this provision is a material breach of this License.
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(d) Licensee shall provide Commissioner with evidence of its
financial ability to undertake Construction as described in Section (a) of this
Article prior to commencing any Construction hereunder. Such evidence shall
include proof of cash on hand, a commitment for a bank loan or other loans,
investment commitments evidenced by written agreements, or such other proof as
is acceptable to Commissioner. Failure to comply with this provision shall
constitute a material breach of this License and shall be grounds for
termination in the sole discretion of Commissioner.
(e) Licensee shall commence Construction upon the issuance of
a Construction permit from the Department, no later than thirty (30) days after
all approvals required herein have been obtained by Licensee, unless
Commissioner has consented in writing to an extension of said commencement date.
Licensee shall notify Commissioner of the specific date on which Construction
shall begin. Construction shall be deemed complete upon approval by Department.
During performance and up to the date of final completion, the Licensee shall
maintain fire, public liability, property damage and owner's protective
liability insurance of a type and amount set forth in Articles XXXII and XXXIII
of Exhibit A.
(f) Licensee shall proceed with diligence to complete all
Construction in an expeditious manner. All Construction shall be completed or
caused to be completed by the Licensee no later than one (1) year after
commencement of Construction. In the event of delays due to causes beyond the
control of the Licensee,
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the date set for completion of Construction may be extended for such reasonable
period, deemed necessary by the Department, upon notice from the Licensee to the
Department detailing the reasons for the delay and requesting an extension of
time for completion thereof.
(g) In the event that there is any conflict between this
Article and Article XV of the General Provisions, then the provisions of this
Article shall control.
IN WITNESS THEREFORE, the parties hereto have caused this
License to be signed and sealed the day and year first above written.
THE CITY OF NEW YORK
DEPARTMENT OF PARKS AND RECREATION
By: /s/ Henry J. Stern
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Dated: 8 February 1985
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APPROVED AS TO FORM:
/s/ Unintelligible
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Acting Corporation Counsel
Tam Concessions, Inc.
By: /s/ Frank Cretella, Pres.
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Dated: January 28, 1985
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this 8th day of February, 1985 before me personally came
HENRY J. STERN, to me known to be the Commissioner of the Department of Parks
and Recreation of the City of New York, and the person described in and who
executed the foregoing instrument and he acknowledged that he executed the same
in his official capacity and for the purpose mentioned therein.
/s/ Randi Elliott
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Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this 28th day of January, 1985 before me personally came
Frank Cretella, who, being duly sworn by me did depose and say that he resides
at Staten Island, NY, and that he is the President of TAM Concessions, Inc., the
corporation described in and which executed the foregoing instrument and that he
is authorized by the Board of Directors of said corporation to execute this
License and that he knows the seal affixed to this instrument is such corporate
seal, and that it was affixed by order of the Board of Directors of said
corporation.
/s/ Randi Elliott
-------------------------------
Notary Public
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Exhibit A
GENERAL PROVISIONS
TABLE OF CONTENTS
Article Page
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I DEFINITIONS........................................................ 1
Alteration.................................................... 1
City.......................................................... 1
Commissioner.................................................. 1
Comptroller................................................... 1
Department.................................................... 1
Expendable Equipment.......................................... 1
Fixed Equipment............................................... 1
Gross Receipts................................................ 2
Licensed Premises............................................. 3
II Not A Lease........................................................ 3
III Prohibition Against Transfer....................................... 3
IV Books and Records.................................................. 4
V Right to Audit..................................................... 7
VI Security Deposit................................................... 8
VII Creditor-Debtor Proceedings........................................ 9
VIII Use of Equipment................................................... 10
IX City's Title....................................................... 10
X Licensee's Acquisition of Fixed Equipment.......................... 11
XI Expendable Equipment............................................... 12
XII Obligation to Acquire.............................................. 12
XIII Maintenance of Equipment and Condition Upon
Surrender.......................................................... 12
XIV Surrender of Licensed Premises..................................... 13
XV Maintenance of Licensed Premises................................... 13
XVI Alterations........................................................ 13
XVII Improvement of Correction in Operations............................ 15
XVIII Merchandise and Prices............................................. 15
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XIX Advertising........................................................ 16
XX Utilities.......................................................... 16
XXI Public Telephone Service........................................... 16
XXII Inflammables....................................................... 17
XXIII Sanitation......................................................... 17
XXIV Access............................................................. 17
XXV Compliance With Laws............................................... 18
XXVI Non-Discrimination................................................. 18
XXVII No Waiver of Rights................................................ 19
XXVIII Assumption of Risk................................................. 19
XXIX Indemnification.................................................... 19
XXX Waiver of Compensation............................................. 21
XXXI Workers' Compensation and Public Liability
Insurance.......................................................... 22
XXXII Fire Insurance..................................................... 24
XXXIII Termination........................................................ 25
XXXIV Investigations..................................................... 26
XXXV Waiver of Trial by Jury............................................ 31
XXXVI Choice of Law, Consent to Jurisdiction and Venue................... 31
XXXVII Payments and Notices............................................... 33
XXXVIII Late Charges....................................................... 33
XXXIX Entire Agreement................................................... 34
XL Modification of Agreement.......................................... 34
XLI Paragraph and Other References..................................... 34
XLII Severability: Invalidity of Particular Provisions.................. 35
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GENERAL PROVISIONS
ARTICLE I
DEFINITIONS
As used throughout this License, the following terms shall have the
meaning set forth below:
(a) "Alteration" shall mean (excepting ordinary repair and
maintenance)
(1) any restoration, rehabilitation, modification, addition
or improvement to Licensed Premises; or
(2) any work affecting the plumbing, heating, electrical,
water, mechanical, ventilating or other systems of
Licensed Premises.
(b) "City" shall mean the City of New York, its departments and
political subdivisions.
(c) "Commissioner" shall mean the Commissioner of the New York City
Department of Parks and Recreation or his designee.
(d) "Comptroller" shall mean the Comptroller of the City of New York.
(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.
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(ii) "Fixed and Additional Fixed Equipment" shall refer to
Fixed Equipment and Additional Fixed Equipment jointly
and severally.
(h) "Gross Receipts" shall include all sums received by Licensee
without deductions of any kind, from the sale of food, 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 sales taxes, excise taxes, cigarette or tobacco taxes or
other similar 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 directly or indirectly taken at Licensed Premises, although delivery of
the merchandise order may be from without said premises, and shall include all
receipts for services rendered or orders taken at Licensed Premises, for
services to be rendered outside thereof. All sales made or services rendered
directly or indirectly from Licensed Premises shall be construed as made and
completed therein even though payment of the amount 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 said premises.
Gross receipts shall also include all sales made by any other
operator or operators using the Licensed Premises. In the event that the use of
vending machines on said premises for the sale of cigarettes, food, drink and
other items is approved by the Department, sales from such vending machines
shall be included in gross receipts. Gross receipts shall include sales
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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.
(i) "Licensed Premises" shall mean the parcel of land described in
Exhibit D, attached hereto and made a part hereof.
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 the License hereby granted 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
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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 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.
(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 the Department or
Comptroller. All such machines and devices shall be approved
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prior to the commencement of this License by the Department or the Comptroller
and the Licensee agrees to notify the Department 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 records and data
generated from or by such machines and devices, including transactions, shall be
posted daily on books and records of accounts.
(c) Licensee shall use such accounting and internal control methods-and
procedures and keep such additional books and records as may be prescribed by
the Department or the Comptroller, and the Department or the Comptroller shall
have the right to examine the record-keeping 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 all records,
books of account and data for a minimum of six (6) years.
(d) Licensee shall furnish to the Department by the 10th day of each
succeeding month, monthly statements sworn to and verified by an officer of the
Licensee and in such form as may be requested by the Department or the
Comptroller, showing in detail the Gross Receipts of the Licensee for each day
of the monthly period. Licensee shall also furnish an annual financial
statement, prepared by a certified public accountant, within sixty (60) days
after the anniversary date of this License and each anniversary date thereafter.
All information to be furnished to the Department shall be accurate and correct
in all material
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respects and sufficient to give the Department 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 section 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 section or
the existence of an unexplained discrepancy in the amount of fees required to be
due and paid hereunder, as disclosed by audit conducted by the Department 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 the Department, 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 the
Department or the Comptroller to make reasonable projections of the amount of
Gross Receipts which would have been disclosed had the required statements been
furnished or the required records maintained, based upon such extrinsic factors
as the auditors deem appropriate in making such projections. Licensee agrees to
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.
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ARTICLE V
RIGHT TO AUDIT
(a) The Department, the Comptroller and other duly authorized
representatives of the City shall have the right, at all reasonable times during
business hours, to examine or audit the records, books of accounts and data of
the Licensee to verify Gross Receipts as reported by the Licensee. Licensee
shall also permit the inspection by the Department, Comptroller or other duly
authorized representatives of the City of any equipment used by Licensee,
including, but not limited to, cash registers and recording machines, and all
reports or data generated from or by the equipment. Licensee shall cooperate
fully and assist the Department, 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 the Department, 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
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License and a default hereunder which shall entitle the Department, at its
option on five (5) days written notice, to terminate this License.
ARTICLE VI
SECURITY DEPOSIT
(a) Licensee has deposited with City the sum of Fifteen Thousand
Dollars ($15,000.00) as a security ("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 with the City throughout the term of this License.
(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. The Security Deposit shall not be mortgaged, assigned,
transferred or encumbered by the Licensee
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without the prior consent of the Department in each instance and any such act on
the part of the Licensee shall be without force and effect and shall not be
binding upon the City.
(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 the Department may, at its option, and without prejudice to any
other remedy which the City may have on account thereof, 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
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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 or in partial liquidation of the City's damages.
ARTICLE VIII
USE OF EQUIPMENT
Licensee shall have the use of all Fixed Equipment and other
equipment belonging to City found on Licensed Premises as of the commencement of
this License listed on Schedule of Equipment attached hereto and incorporated
herein as Exhibit E.
ARTICLE IX
CITY'S TITLE
(a) Title to all equipment, (except Fixed Equipment, Additional Fixed
Equipment, accessories thereto and other equipment belonging to City as listed
on the Schedule of Equipment attached to the Stipulation dated March 1, 1983
between the City of New York and the United States of America, attached hereto
and incorporated herein as Exhibit F), provided by Licensee shall remain in
Licensee and such equipment shall be removed by Licensee at the expiration or
sooner termination of this License. Should any property remain on the Licensed
Premises after such expiration or termination, Commissioner may treat same as
though abandoned and charge all costs and expenses incurred in the removal and
disposal thereof to Licensee.
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(b) The Department shall use a reasonable amount of secure space within
the Licensed Premises which is sufficient for the storage of property owned by
Democratic Provisions, Inc. which property is listed on an attachment to Exhibit
E attached hereto, and is subject to levy by the U.S. Internal Revenue Service
pursuant to the Ex Parte Order for Entry on Premises to Effect Levy, dated
February 14, 1983, signed by U.S. District Court Judge, Thomas, P. Griesa,
pending the sale or redemption of the property pursuant to law.
(c) Licensee shall abide by the terms of Exhibit E hereto.
(d) Licensee shall not dispose of or remove from Licensed
Premises any of the property listed on the attachments to Exhibit E without the
Department's prior approval.
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:
(i) 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
(ii) 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 the
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Department's 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.
(b) Title to all Expendable Equipment 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.
ARTICLE XII
OBLIGATION TO ACQUIRE
Licensee must acquire, replace, install or affix, at its sole
cost and expense, any equipment (excepting equipment listed on Exhibit D),
materials and supplies required for the proper operation of Licensed Premises as
described herein or as required by Commissioner.
ARTICLE XIII
MAINTENANCE OF EQUIPMENT AND CONDITION UPON
SURRENDER Licensee shall at its sole cost and expense and to
the satisfaction of Commissioner, put, keep, repair, preserve, and
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maintain in good order, all equipment found on, placed in, installed in or
affixed to Licensed Premises. Notwithstanding the aforementioned, at the
expiration or sooner termination of this License, Licensee shall surrender the
Fixed and Additional Fixed Equipment to which City holds title in the same
condition as said equipment was found by Licensee, reasonable wear and tear
excepted.
ARTICLE XIV
SURRENDER OF LICENSED PREMISES
At the expiration or sooner termination of this License,
Licensee shall surrender Licensed Premises in at least as good a condition as
said premises were found by Licensee at the beginning of this License term,
reasonable wear and tear excepted.
ARTICLE XV
MAINTENANCE OF LICENSED PREMISES
(a) Licensee shall, at its sole cost and expense and to the
satisfaction of Commissioner, put, keep, repair and maintain in good order
Licensed Premises, including snow removal.
ARTICLE XVI
ALTERATIONS
(a) "Alteration" shall mean (excepting ordinary repair and
maintenance):
(i) any restoration, rehabilitation, modification, addition
or improvement to Licensed Premises; or
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(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 prior written approval 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 designs, plans, specifications, cost estimates, agreements, and contractual
understandings within ninety (90) days of his receipt of same, then his approval
will be deemed 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
Paragraph and 2) in a good and workmanlike manner; and
(iii) notify Commissioner of completion of, and the making of
final payment for, any alteration within ten (10) days after the occurrence of
said completion of final payment.
(d) Commissioner may, in his sole discretion, make repairs,
alterations, decorations, additions or improvements to Licensed Premises at the
City's expense, but nothing herein shall be
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deemed to obligate or require Commissioner to make any repairs, alterations,
decorations, additions, or improvements, nor shall this provision in any way
affect or impair Licensee's obligations herein in any respect.
ARTICLE XVII
IMPROVEMENT OR CORRECTION IN OPERATIONS
Should Commissioner, in his sole judgment, 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 ten (10) days from the mailing of said notice, then this License shall be
deemed terminated, notwithstanding any other provisions herein, as of the
mailing of said notice.
ARTICLE XVIII
MERCHANDISE AND PRICES
Licensee warrants that all 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. Such prices may be changed from time to time only with
the approval of Commissioner. The schedule of prices approved by Commissioner
shall be printed, framed and
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displayed at the expense of Licensee in a place and manner designated by
Commissioner.
ARTICLE XIX
ADVERTISING
Licensee shall not employ callers, criers, or use signs or any
other means of soliciting business without the approval of Commissioner, nor
advertise this License in any manner or form on or about Licensed Premises, or
elsewhere, or in any newspaper or otherwise, without such approval.
ARTICLE XX
UTILITIES
Licensee shall pay for all utility charges including, but not
limited to water, oil, electricity and gas, consumed within the Licensed
Premises and/or for the operation of this License. Licensee shall procure all
permits and licenses necessary for the operation of this License and procure,
install and maintain in good working order and repair all utility meters during
the term of this License.
ARTICLE XXI
PUBLIC TELEPHONE SERVICE
Commissioner may contract directly with the telephone company
for public telephone services at Licensed Premises if Commissioner deems such
service necessary, and all revenue therefrom shall belong to City.
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ARTICLE XXII
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 fire insurance companies in the State of New York.
ARTICLE XXIII
SANITATION
Licensee shall provide adequate waste receptacles adjacent to
or within fifty feet (50') of Licensed Premises. Licensee shall keep at all
times Licensed Premises and the surrounding area within the distance specified
herein and above clean, neat, fumigated, disinfected, deodorized and in every
respect sanitary. All waste material shall be collected and stored in closed
containers in a manner satisfactory to Commissioner. Licensee, at its sole cost
and expense, shall be responsible for the removal of all such material from the
Licensed Premises.
ARTICLE XXIV
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.
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ARTICLE XXV
COMPLIANCE WITH LAWS
(a) Licensee shall comply at its sole cost and expense, and
cause its employees and agents to comply with all rules, regulations and orders
now or hereafter prescribed by Commissioner, and to comply with all laws, rules,
regulations and orders of any 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 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
License term.
ARTICLE XXVI
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 XXVII
NO WAIVER OF RIGHTS
No acceptance by Commissioner of any compensation, fees,
charges or other payments in whole or in part for any period or 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 XXVIII
ASSUMPTION OF RISK
Licensee assumes all risk in the operation of this License and
shall comply at its own cost with all federal, state and local laws and
regulations, and all rules, regulations and orders of the Department affecting
the operation of this License, in regard to all matters.
ARTICLE XXIX
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
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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 obligations of Licensee under this Article XXIX shall
not be affected in any way by the absence in any case of covering insurance or
by the failure or refusal of any insurance carrier to perform any obligation on
its part under 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
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 XXIX and all other
indemnity provisions of this License shall survive the expiration date with
respect to any liability, suits, obligations, fines,
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damages, penalties, claims, costs, charges or expenses 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.
(e) Notwithstanding anything in this License to the contrary,
Licensee shall have no liability for any losses, damages or claims which arise
out of any act, omission or negligence of the City or its officers, agents,
employees, independent contractors or otherwise.
ARTICLE XXX
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 and its agents 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 whatever, in the event
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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 License was terminated or revoked for any reason as provided in the
License.
ARTICLE XXXI
WORKERS' COMPENSATION AND PUBLIC LIABILITY INSURANCE
(a) Licensee shall, at its own cost and expense, procure and
maintain such insurance for the term of this License as will protect Licensee
from claims under the Workers' Compensation Act; and shall take out and maintain
such public liability insurance including food products liability as will
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, 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. The policies shall provide
the amounts of insurance hereafter mentioned, and before delivery of the
License, all policies and certificates of insurance shall be submitted to
Commissioner for his approval and retention. Each policy and 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 Registered 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
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made against knee 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 furnish, deliver
and maintain 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.
(b) All required insurance must be issued by companies
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:
Workers' Compensation Insurance............... Per Statute
Public Liability Insurance for ............... $1 Million for any one
one accident, not less than person; and 3 million
for any one accident
Property Damage Insurance, not less than ..... $50,000
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Food products liability shall be included in Public Liability Insurance. 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 determined by
Commissioner. All Public Liability and Property Damage policies shall name the
City of New York as an additional insured party.
ARTICLE XXXII
FIRE INSURANCE
Licensee shall, at its cost and expense, procure and maintain
fire insurance and extended coverage with companies authorized to do business in
the State of New York, acceptable to Commissioner, to cover fire loss to the
Licensed Premises or to Fixed Equipment belonging to City. Fire insurance shall
include coverage for equipment belonging to the City and acts of vandalism.
Licensee further agrees that if said 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 in a manner satisfactory to
Commissioner at the sole cost and expense of Licensee. Upon the satisfactory
completion of such repairs or replacements, Licensee shall be repaid the
reasonable cost thereof except that such payments shall in no event exceed the
amount actually collected and received by
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Commissioner under the insurance policies. The amount of fire insurance and
extended coverage shall be as follows:
Fixed Equipment ....................................... $200,000
Licensed Premises...................................... Replacement value, but
not less than $600,000.
All fire insurance policies shall name the City of New York as the sole insured.
All fire insurance policies shall be marked "Premium Paid" and shall be
submitted to the Commissioner for his approval and retention before delivery of
this License.
ARTICLE XXXIII
TERMINATION
(a) Should Licensee breach or fail to comply with any of the
provisions of this License, any federal, state or local law, or any rule,
regulation or order of the Department affecting the License or the Licensed
Premises in 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 to the City within ten (10) days from the mailing thereof subject
to unavoidable delays beyond reasonable control of Licensee and with written
notice to the City within such ten (10) day period, then this License shall
immediately terminate as though it were the time provided above for the
termination thereof. If said breach or failure to comply is corrected, and a
second or repeated violation of the same provision, law, rule, regulation or
order follows thereafter, Commissioner, by notice in writing, may revoke and
terminate this License, such revocation and termination to be immediately
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effective on the mailing thereof, the License to terminate as though it were the
time provided above for the termination thereof.
(b) Nothing contained in paragraph (a) above shall be deemed
to imply or be construed to represent an exclusive enumeration of circumstances
under which Commissioner may terminate the License without being arbitrary or
capricious.
(c) Upon expiration or sooner termination of the License by
Commissioner, all rights of the Licensee herein shall be forfeited without claim
for loss, damages, refund of investment or any other payment whatsoever against
Commissioner or City.
(d) In the event Commissioner terminates the License for
reasons related to the Licensee's breach of this License, 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 the License, is paid in full.
ARTICLE XXXIV
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
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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;
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(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.
(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
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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, and 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.
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(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 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
or 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.
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ARTICLE XXXV
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 License. Any action taken by Commissioner relating to
License may only be challenged in a proceeding instituted in New York County
pursuant to CPLR Article 78.
ARTICLE XXXVI
CHOICE OF LAW, CONSENT TO JURISDICTION AND VENUE
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.
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 agreement and intent, the Licensee
agrees:
(a) 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
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other address as the Licensee may provide to the City in writing; and
(b) 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.
(c) 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.
(d) 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.
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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ARTICLE XXXVII
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
Licensee at their respective addresses provided in this License, or such other
address as Licensee shall have filed with Commissioner.
ARTICLE XXXVIII
LATE CHARGES
In the event that payment of License fees, percentage fees or
other charges shall become overdue for ten (10) days beyond the date on which it
is due and payable as provided in this License agreement, 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 costs 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. In addition, a two percent (2%) per month interest charge shall be
applied to any unpaid balance. No failure by Commissioner to insist upon the
strict performance by Licensee of Licensee's obligations to pay late charges
shall constitute a waiver by
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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.
ARTICLE XXXIX
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 XL
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 XLI
PARAGRAPH AND OTHER REFERENCES
(a) All references herein to "Paragraph(s)",
"Sub-paragraph(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,
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<PAGE>
limit, describe or in any way affect the scope of intent or meaning of this
License.
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 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.
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<PAGE>
[LOGO] CITY OF NEW YORK The Arsenal
PARKS & RECREATION Central Park
New York, New York 10021
Henry J. Stern
Commissioner
January 31, 1994
Frank Cretella, President
TAM Concessions, Inc.
1163 Forest Avenue
Staten Island, New York 10310
Re: Modification of License Agreement between TAM
Concessions, Inc. (Loeb Boathouse) and City of
New York Parks and Recreation M10(14)-BR,SB
Dear Mr. Cretella:
Effective July 1, 1994, Article 4c of the subject license
agreement shall be modified as follows, as it applies to payment of the annual
minimum fee:
Licensee shall pay one-twelfth (1/12) of either the Annual
Minimum Fee, or 75% of Licensee's Previous Year's Fee Payments, whichever is
greater, on or before the tenth (10th) of each month, except that for the months
of November, December, January and February the Licensee shall make partial
payments of $10,000, with 20% of the cumulative balance for such underpaid
months (November - February), to be added to the minimum payment for each of the
months of July, August, September, May and June.
For example, using the present annual minimum fee of
$340,556.06, the payment schedule would be calculated as follows:
CURRENT MODIFIED
MONTH MINIMUM FEE ADJUSTMENTS MINIMUM FEE
----- ----------- ----------- -----------
July $28,379.67 $14,703.74 $43,083.41
August $28,379.67 $14,703.74 43,083.41
September $28,379.67 $14,703.74 43,083.41
October $28,379.67 28,379.67
November $28,379.67 (18,379.67) 10,000.00
December $28,379.67 (18,379.67) 10,000.00
January $28,379.67 (18,379.67) 10,000.00
February $28,379.67 (18,379.67) 10,000.00
March $28,379.67 28,379.67
April $28,379.67 28,379.67
May $28,379.68 14,703.73 43,083.41
June $28,379.68 14,703.73 43,083.41
---------- --------- ---------
TOTALS $340,556.06 $0.00 $340,556.06
----------- ----- -----------
<PAGE>
This modification of the minimum fee payment schedule will
better accommodate the seasonal nature of the licensee's business operation.
All other terms and conditions of TAM Concessions, Inc.'s
license agreement dated February 8, 1985, shall remain in full force and effect.
Please indicate your agreement with this amendment by signing
and returning the original of this letter. The duplicate copy should be retained
with your records.
Sincerely,
/s/ Joanne Imohiosen
--------------------------
Joanne Imohiosen
Assistant Commissioner
Revenue Division
AGREED AND ACCEPTED:
TAM CONCESSIONS, INC.
BY: /s/ Frank Cretella
---------------------------
Frank Cretella Pres
-------------------------------
Print Name & Title
DATE: 2/7/94
-------------------------