STATE OF ALABAMA ) GULF STATE PARK PIER CONCESSION CONTRACT STATE OF ALABAMA DEPARTMENT OF CONSERVATION MONTGOMERY COUNTY ) AND NATURAL RESOURCES, STATE PARKS DIVISION THIS AGREEMENT, entered into this day of, 2016, by and between the State of Alabama, Department of Conservation and Natural Resources, Parks Division, hereinafter referred to as CONSERVATION, and, hereinafter referred to as CONCESSIONAIRE; WHEREAS, Conservation owns Gulf State Park, and; WHEREAS, Conservation desires to enter into a contract for the operation of the Food and Beverage Outlet on pier to be provided at Gulf State Park by Concessionaire, and; WHEREAS, Concessionaire has the expertise and experience to operate the pier restaurant; NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Conservation and Concessionaire, for the consideration and under the conditions hereinafter set forth, agree as follows: 1. NATURE AND SCOPE OF SERVICE Concessionaire shall operate the Food and Beverage outlet on the pier at Gulf State Park. The Concessionaire shall operate the facilities under the following conditions: ( a ) Concessionaire will provide experienced staff. ( b ) The concessionaire will have regular scheduled hours posted and maintain a telephone to provide customers information.. ( c ) Concessionaire and its customers will observe all park rules and regulations. ( d ) Concessionaire will provide at least 30 days prior notice to Conservation of all special events. No events shall be conducted without Conservation approval. Concessionaire will provide at its cost such 1
additional security or traffic control personnel as specified by Conservation. ( e ) All of the Concessionaire customers will be required to pay the park entrance fee/park pass when entering Gulf State Park. 2. FACILITIES UNDER CONTRACT The Concessionaire will operate the indicated area in Exhibit I. 3. TERM The term of this contract is for a period of six (6) years. This agreement may, with the mutual agreement of all parties, be renewed for up to six (6) additional one (1) year periods at the same pricing and terms and conditions of the initial contract. 4. CANCELLATION This contract may be canceled any time by Conservation in the event of a breach by Concessionaire of any of the terms and conditions of this agreement. Notice of such decision must be delivered in writing to the Concessionaire not less than thirty (30) days prior to cancellation. 5. CONTINUOUS OPERATION The pier restaurant, upon being opened for public use, shall at all times during the term here of be open for use by the public to the extent that guests are available to economically justify the operation and/or weather conditions, Act of God or civil disturbances reasonably permit. The Food and Beverage outlet at the pier shall be open seven (7) days per week. Conservation will keep its facilities at Gulf State Park open to the public to the extent that weather conditions, Act of God, civil disturbances and/or the laws of Alabama reasonably permit. 6. DUTIES AND OBLIGATIONS OF CONCESSIONAIRE In addition to the other provisions of this agreement, Concessionaire will manage said facilities for Conservation accommodating all activities in connection therewith which are customary and usual to such 2
operations and to the various facilities connected therewith, except as herein otherwise expressly provided. The Concessionaire shall have the exclusive right to operate and manage said facilities upon the terms of this contract. The Concessionaire shall keep the facilities open to the public at reasonable rates approved by Conservation and without discrimination as to race, creed, color, national origin, sex or disability. Concessionaire will provide all necessary equipment, fixtures, resale goods, and similar products for the operation of said facilities. Conservation will allow Concessionaire to make use of existing equipment, fixtures, and similar items (not including resale goods held in inventory by Conservation on the date of the commencement of this Contract). 7. REMITTANCES (a) The Concessionaire agrees to pay Conservation at its Headquarters in Gulf Shores, Alabama, no later than the fifth (5 th ) of each month, as payment for the facilities occupied and operated hereunder, an amount equal to % of the gross receipts of Concessionaire from all operations and activities hereunder received during the immediately preceding month. Any payments including utilities and fees not paid by the fifteenth (15 th ) day of the month shall be assessed a late fee payment of $25.00 per day. 8. RECORDS AND CHARGES Concessionaire will keep true, accurate and complete records of all its operations under this agreement, including all receipts of money by it, which records and accounting methods shall be in such form and kept in such manner as is generally approved by certified public accounting practices. Concessionaire will use its best efforts to follow recognized, modern business practices to the end of providing efficient and adequate services to the public at fair and reasonable rates. All such records shall be made available for inspection by Conservation at all reasonable times. 9. UTILITIES, WATER AND SEWAGE Concessionaire shall pay the cost of all gas, electricity, trash pickup, water and other utility products and services used in and on the properties operated by Concessionaire hereunder. Concessionaire is responsible for disposing of all waste on a timely basis and for keeping said facilities in a sanitary condition. All is to be removed from the park. 3
10. MAINTENANCE Except as to loss or damage caused by fire or other casualty insured against or, in the case of uninsured property, loss or damage resulting from windstorm or other natural casualty, Concessionaire shall provide at its expense all maintenance, repairs and restoration needed to keep and maintain the whole of the subject facilities in good rentable order and condition as befits a first class operation during the term of this contract, including interior restoration, all electrical, heating and air conditioning repairs, and the day-to-day maintenance of all areas used by the Concessionaire, but excepting all structural maintenance and repair and maintenance of parking areas, roadways and drives. General housekeeping within the areas covered under this agreement shall be the responsibility of the Concessionaire. Concessionaire may at its own option and expense make structural alterations, additions, and improvements, provided the same are approved in advance and in writing by Conservation. Any modifications to the existing park amenities and any proposed new park addition must be approved in advance and in writing by Conservation. Notwithstanding any other provisions of this contract, the Concessionaire shall not be obligated to make any major structural repairs to the buildings included in the properties, which are made necessary by defective construction or workmanship in the original construction of the building as determined by Conservation. 11. MAINTENANCE, ETC, BY CONSERVATION AT CONCESSIONAIRE S COST If at any time the Concessionaire fails to comply with the terms of this contract relating to the maintenance, repairs, replacement, etc., of the properties, Conservation may cancel the contract as provided in Paragraph 4 or may cause such repairs, maintenance, replacement, etc., to be done and employ necessary labor and purchase the necessary materials therefore. The cost and expense of any work done by Conservation and of materials purchased by it, together with a fair apportionment of overhead costs thereto shall be an additional amount payable by Concessionaire and shall be added to the next monthly installment to become due hereunder. 12. INSPECTION BY CONSERVATION Conservation, or its authorized representatives, may at all times and without unreasonably interfering with the operation being conducted upon the properties, enter into and upon said properties to examine the condition thereof, and determine whether the Concessionaire is conducting its operations thereof and thereon in 4
compliance with the terms and provisions of this agreement. Concession Contract Food and Beverage operations at Gulf State Park Pier 13. QUARTERLY JOINT INSPECTION On or before January 1, April 1, July 1, and October 1, each year during the term of this contract, a representative designated by Conservation, and a representative designated by Concessionaire shall together make a complete examination and inventory of all of the properties, including replacements thereof and shall promptly prepare a written list of repairs, maintenance work, replacements, etc., then agreed to be necessary to the properties, which maintenance repairs, replacements, etc., shall then be promptly carried out by Concessionaire according to the areas of responsibility set out in Paragraphs 9 and 10 and at their expense. The preparation of such list, however, and the carrying out of the requirements thereof shall not in any way relieve the Concessionaire of its obligations under this agreement with respect to keeping the properties in good condition at all times and to make replacements as needed, as elsewhere provided in this agreement. 14. CONCESSIONAIRE S AUTHORITY The Concessionaire shall, subject to all the terms of and provisions hereof, and except as herein otherwise provided, have control and discretion in the operation of the Food and Beverage outlet at the pier in Gulf State Park, including use of the premises for all customary purposes.. Nothing contained herein shall constitute or be construed to be a partnership or joint venture between Conservation, its successors and assigns, on the one part, and Concessionaire, its successors or assigns, on the other part. 15. LIABILITY All operations by the Concessionaire under this contract shall be conducted solely at its own risk. It will take proper safeguards to prevent any and all injuries or damage to property of Conservation, to the public, and to any other property, material, or thing, and Concessionaire alone shall be responsible for any damage or injury occurring on or about the properties or resulting from its operations under this contract. Concessionaire will assume, pay, and at all times indemnify, protect and save harmless Conservation, its agents, employees and officers, for claims for damages for injuries to person or property arising or resulting from any act or default of the Concessionaire, its agents or employees, together with all cost, expenses, and attorney fees incurred with respect to any such claim, demand or legal proceeding made or brought against Conservation, its agents or 5
employees. The Concessionaire s supplies and all merchandise, effects and other property of every kind, nature and description belonging to Concessionaire, which may be on or in the properties during the continuance of this contract or any occupancy by the Concessionaire thereof shall be at the sole risk of hazard of the Concessionaire, and if the whole or any part thereof shall be destroyed or damaged by fire, water, or otherwise, or by the leakage or bursting of water pipes, steam pipes or other pipes, by theft, or any other cause, no part of said loss or damage is to be charged to or be borne by Conservation, and the Concessionaire hereby agrees to forever hold Conservation harmless from and to indemnify Conservation against any and all loss, cost, debt, claim, damage, judgment and/or expense suffered and incurred by Conservation in connection herewith. 16. COMPLIANCE WITH LAWS Concessionaire agrees that it will keep itself fully informed of all laws, rules and regulations in any manner affecting its operation of the properties and facilities and of all orders and decrees of bodies and tribunals having jurisdiction or authority over same. Concessionaire will at all times observe and comply with and cause its agents and employees to observe and comply with such existing and future laws, ordinances, regulations, orders and decrees. Concessionaire will procure all permits and licenses, pay all charges, license fees, or taxes incident to the operation and give all notices necessary and incident to the lawful and proper prosecution of its operations hereunder. In addition to the other provisions of this agreement, Concessionaire will operate and manage said facilities in compliance with all federal, state, and municipal laws, statutes, and regulations and ordinances and further, agrees to not discriminate on the basis of race, color, religion, age, gender, national origin, genetic information, veteran status, or disability in its hiring or employment practices nor in admission to, access to, or operations of its programs, services, or activities. Concessionaire s compliance with these laws will be indicated by the placement of signs in public areas and by statements in public information brochures. Where applicable, the facilities are to be operated by Concessionaire for public outdoor recreation purposes in compliance with provisions of the Land and Water Conservation Fund Act and its implementing guidelines found at 36 C.F.R. 59. Further, the facilities are to be identified as publically owned and operated as a public outdoor recreation facility, operated by the Concessionaire, in all signs, literature, and advertising. The Concessionaire shall have the exclusive right to operate and manage said facilities upon the terms of this contract. The Concessionaire shall keep the facilities open to the public at reasonable rates competitive with similar private facilities approved by Conservation, such approval not to be unreasonably withheld or denied. 6
17. INSURANCE Concessionaire shall, at Concessionaire s sole cost and expense, throughout the term of this contract, keep the park facilities and property operated hereunder insured under a policy of general public liability insurance and standard hazard insurance in which Conservation, its officers, agents and employees, shall be named insured, against property damage and claims for bodily injury or death occurring upon, in or about the said facilities and property, in such limits as may reasonably be requested by Conservation from time to time, but not less than one million dollars in respect of bodily injury (including death), and one million dollars for property damage. All insurance provided for herein shall be effected under valid and enforceable policies issued by insurers acceptable to Conservation and licensed to do business in the State of Alabama. Not less than fifteen (15) days prior to the expiration dates of the policies theretofore furnished pursuant to this paragraph, originals of the renewal policies for such insurance shall be delivered by Concessionaire to Conservation, except that Concessionaire may, in lieu of delivering the originals of the policies, deliver to Conservation duplicates of such insurance. Within fifteen (15) days after the premium on each such policy shall become due and payable, and the amount thereof determined, Conservation shall be furnished with evidence satisfactory to Conservation of such payment. All such policies shall contain an agreement by the insurers that such policies shall not be canceled without at least thirty (30) days prior written notice to Conservation. If Concessionaire provides any insurance required pursuant to this contract in the form of blanket policies, Concessionaire shall furnish proof satisfactory to Conservation in the form of a sworn statement from the issuing insurance company that the coverage under such blanket policies complies in all respects with the provisions of this contract, and that such coverage is at least equal to the coverage which would be provided under a separate policy or policies covering only the subject property. 18. DESTRUCTION BY FIRE OR OTHER HAZARD In the event of the total destruction of the facilities, or damage to or destruction of a portion thereof so substantial that the remainder is not economically operable for the purposes herein contemplated, by fire, windstorm, or other hazard, operation of the facilities shall be suspended until the portions thereof so destroyed or damaged are rebuilt, repaired, or replaced. Such rebuilding, repairing or replacement, hereinafter 7
collectively called restoration, shall be done by Conservation from the proceeds of insurance or from other funds that may be available for the purpose, if any, unless the responsibility for such restoration is that of Concessionaire under other provisions of this contract, in which event the same shall be done by Concessionaire at its expense. In the event such restoration is the responsibility of Conservation it may within sixty (60) days after the damage or destruction occurred, serve Concessionaire with notice that it does not intend to carry out such restoration, in which latter event this contract shall thereupon terminate. In the event such damage or destruction is less substantial so that the remainder of the properties is economically operable, operation shall continue to the extent practical while restoration is under way. Conservation may notify the Concessionaire that it elects not to carry out restoration for which it is responsible, in which event the amount of any guaranteed minimum payments may, in the sole discretion of Conservation, be reduced proportionately. In event of complete destruction of the property and suspension of the operation thereof during the period of restoration, no payments shall be made by Concessionaire for the period of complete suspension of operations. In the event the destruction is only partial and Conservation elects not to restore the portion of the properties destroyed, and such portion destroyed exceeds 50% either in reasonable value or revenue producing capacity of the properties, the Concessionaire shall have an option to terminate the contract provided it so notifies Conservation within thirty (30) days after Conservation has served Concessionaire with notice that it does not intend to restore the destroyed portion of the properties. 19. WAIVER OF BREACH No assent, express or implied, by Conservation to any breach in or default of any agreement or condition herein contained on the part of Concessionaire to be performed or observed, shall constitute a waiver of or assent to any succeeding breach in or default of the same or any other agreement or condition hereof. 20. BOND Concessionaire must submit along with the executed contract a bond or letter of credit for the faithful performance of all the terms, conditions and obligations of this contract including the payment of all monies due Conservation from Concessionaire in the amount of ($X). Said bond or letter of credit shall be furnished by a surety company or bank qualified and authorized to make such bonds or issue such letters of credit in the State of Alabama, and in the case of a bond, countersigned by an authorized agent resident in the state who is qualified to execute such instruments. The bond or letter of credit shall have attached thereto the power of attorney of the signing official. In the case of default on the part of the Concessionaire, all expenses incident to ascertaining and collecting losses suffered by Conservation under the 8
bond or letter of credit shall also be charged against the bond or letter of credit. In the event the surety executing the bond, or the bank issuing the letter of credit, although acceptable to the Commissioner at the time of execution of the contract, subsequently becomes insolvent, bankrupt, unreliable or otherwise unsatisfactory due to any cause which becomes apparent after the Commissioner s initial acceptance of said bond or letter of credit, the Commissioner will require Concessionaire to replace the bond or letter of credit with another which is acceptable to the Commissioner. 21. ASSIGNMENT PROHIBITED Concessionaire may not assign or otherwise alienate this contract, in whole or in part, or sublet any part of the properties without first obtaining the written consent of the Commissioner, and in the event the Commissioner consents to any such assignment, the Concessionaire shall remain primarily liable for the payments herein provided, unless expressly otherwise provided in the written consent of the Commissioner thereto. No assignment or other alienation made by Concessionaire without the written consent hereinbefore provided shall vest any right or interest whatsoever in the assignee. 22. CHANGES IN WRITING ONLY This instrument and the attachments hereto contain the entire agreement of the parties and no change, modification, or waiver of any of the terms, provisions or conditions of this contract shall be in any way valid or binding on either of the parties hereto unless the same be dated after the date hereof and be in writing and signed by both parties and in full compliance with existing state law. 23. SURRENDER AT TERMINATION OR CANCELLATION Upon the expiration or cancellation of this contract for any cause Concessionaire agrees to return to Conservation all the properties, including all replacements thereof and additions thereto made after commencement of the contract, in good order of repair and condition as herein before provided, reasonable wear and tear accepted. Property of concessionaire must be removed from the premises within ten (10) days after such termination or cancellation, provided all payments due from Concessionaire to Conservation have been paid in full. Any property of Concessionaire not removed within said period shall become and remain the property of Conservation. 9
At the termination of this contract for any cause, Concessionaire agrees to transfer to Conservation, or its designee, on a pro rata basis, any and all licenses, permits, trade names, copyrights, or patents, used in connection with the operation of all or any portion of the properties, and hereby appoints any attorney designated by Conservation as attorney to execute on behalf of Concessionaire all necessary papers of application to effectuate such transfer. 24. QUALIFICATION OF CONCESSIONAIRE The Concessionaire hereby represents and warrants that it is duly authorized to transact in the State of Alabama business of the type and nature required for the operation of the properties and facilities included in this contract, and that it will continue to be so qualified during the term of this contract. 25. BOARD OF ADJUSTMENT SOLE REMEDY It is agreed that the terms and commitments contained herein shall not be constituted as a debt of the State of Alabama in violation of Article 11, Section 213 of the Constitution of Alabama, 1901, as amended by Amendment Number 26. It is further agreed that if any provision of this contract shall contravene any statute or Constitutional provision or amendment, either now in effect or which may, during the course of this contract, be enacted, then that conflicting provision in the contract shall be deemed null and void. Except as provided in paragraph 26, the contractor s sole remedy for the settlement of any and all disputes arising under the terms of this agreement shall be limited to filing of a claim with the Board of Adjustment for the State of Alabama. 26. MEDIATION For any and all disputes arising under the terms of this contract, the parties hereto agree, in compliance with the recommendations of the Governor and Attorney General, when considering settlement of such disputes, to utilize appropriate forms of non-binding alternative dispute resolution including, but not limited to, mediation by and through the Attorney General s Office of Administrative hearings or where appropriate, private mediators. 27. CONTINGENCY CLAUSE It is expressly understood and mutually agreed that any commitment of Conservation funds herein shall be 10
contingent upon the receipt and availability of funds to Conservation under the program for which this agreement is awarded. 28. MERIT SYSTEM BENEFITS It is expressly understood and mutually agreed that agency shall not hereby be entitled to any benefits of the Alabama Merit System. 29. PRORATION In the event of the proration of the fund from which payment under this contract is to be made by Conservation, the contract will be subject to termination. 30. IMMIGRATION LAW By signing this contract, the contracting parties affirm, for the duration of the agreement, that they will not violate federal immigration law or knowingly employ, hire for employment, or continue to employ an unauthorized alien within the state of Alabama. Furthermore, a contracting party found to be in violation of this provision shall be deemed in breach of the agreement and shall be responsible for all damages resulting therefrom. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed on the day and year first above mentioned. (ADD SIGNATURES AND NOTARIES) 11