THIS AGREEMENT made this 29th day of January 1990, by and between
the State of New York, acting by and through the Office of Parks, Recreation and
Historic Preservation, (hereinafter referred to as "PARKS") with offices located
at Agency Building 1, Governor Xxxxxx X. Xxxxxxxxxxx Empire Xxxxx Xxxxx, Xxxxxx,
Xxx Xxxx 00000, and Beach Concerts, Inc., (hereinafter referred to as
"LICENSEE") with offices located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
W I T N E S S E T H:
WHEREAS, PARKS, acting with the Long Island State Park, Recreation
and Historic Preservation Commission, (hereinafter referred to as "COMMISSION"),
pursuant to Section 7.13 of the Parks, Recreation and Historic Preservation Law,
has jurisdiction over the Xxxxx Beach Theatre which was built for the
presentation of various forms of musical productions and other shows at the
Xxxxx Beach State Park, Nassau County, New York, and
WHEREAS, PARKS and the COMMISSION have solicited proposals from the
entertainment field for the presentation of musical shows during the summer
seasons from 1990 through 1999, and
WHEREAS, the LICENSEE is a qualified and successful producer and
promoter of musical presentations and
WHEREAS, the LICENSEE has provided the most beneficial proposal for
the operation of the Xxxxx Beach Theatre, and
WHEREAS, the LICENSEE is willing to produce musical presentations
and other shows during the 1990 through 1999 seasons, and PARKS and the
COMMISSION, pursuant to a resolution dated December 7, 1989, are willing to
accept such presentations upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, it is mutually agreed between the parties hereto as
follows:
1. PARKS hereby grants to the LICENSEE and the LICENSEE hereby
accepts from PARKS an exclusive license to operate the Xxxxx Beach Theatre for
the period herein stated, and subject to all of the terms and conditions
contained herein.
2. Unless otherwise agreed to in writing by PARKS, the LICENSEE will
present a minimum of twenty (20) contemporary musical performances and concerts
and a maximum of fifty (50) such performances and concerts during each of the
summer seasons from 1990 through 1999 at the Xxxxx Beach Theatre. For the
purposes of this Agreement the summer season at Xxxxx Beach Theatre shall
commence on June 1 and end on September 30 of each year.
3. This license shall commence on the first day of January 1990 and
shall end on the thirty-first day of December 1999.
4. The LICENSEE represents that he has acquired or shall acquire and
possess all the performing, musical and other
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legal rights from the authors and/or owners of all presentations to present said
performances in the New York Metropolitan area (including the Xxxxx Beach
Theatre) during the term of this Agreement and the LICENSEE agrees to present
such performances complete in every respect, and to meet all costs and expenses
thereof except as hereinafter provided.
5. a. LICENSEE agrees to pay PARKS as compensation for this license
and for the privilege of operating said license at the Xxxxx Beach Theatre for
the period aforesaid, an annual fee, as follows:
Year Fee
---- ---
1990 $525,000
1991 550,000
1992 580,000
1993 610,000
1994 640,000
1995 670,000
1996 710,000
1997 740,000
1998 775,000
1999 820,000
The License fee as indicated above shall be paid in three equal payments on or
before August 15, September 15 and October 15 for each year of the contract.
Such license fee shall be paid each year LICENSEE presents forty-five (45) or
less musical performances and concerts. Should LICENSEE present more than
forty-five (45) musical performances and concerts per year, LICENSEE shall pay
to PARKS $20,000 for each performance from forty-six (46) through a maximum of
fifty (50) performances per
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year excluding those performances presented outside the Theatre and those
performances in the Theatre for which ticket price is $10.00 or less. Such
exclusion may include Shakespeare-in-the-Park, Children's Theatre, classical
plays and big bands or other such entertainment.
b. LICENSEE shall pay to PARKS in connection with the
provision of food and refreshments the sum of ONE THOUSAND FOUR HUNDRED DOLLARS
for each show for the term of the contract with a minimum payment of $50,000
each year for the period January 1, 1990 through December 31, 1994 and a minimum
payment of $60,000 each year for the period January 1, 1995 through December 31,
1999. All required minimum payments shall be made by October 15 of each contract
year.
c. It is understood that during the term of this agreement
PARKS may require LICENSEE to impose a parking surcharge on each ticket sold as
directed by PARKS.
6. It shall be the responsibility of LICENSEE through its designated
concessionaire, to provide for food and beverage service immediately before,
during and for one hour after each musical performance. In no event shall such
sales extend beyond midnight without the express approval of PARKS. Such
concessionaire shall be selected subject to PARKS' approval. The sale of
alcoholic beverages will not be permitted. PARKS will retain the right of menu
and price approval.
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7. LICENSEE shall have the right to sublicense the sale of
artist-related merchandise (whether that artist be performing at the Xxxxx Beach
Theatre or not) such as T-shirts, sweatshirts, jerseys, posters, hats, buttons,
records, souvenir books and similar materials. Selection of sublicensees shall
be subject to PARKS' approval. Concert programs or playbills which are
distributed "free" are excluded from this agreement. It is agreed LICENSEE shall
pay to PARKS the sum of TWO THOUSAND ONE HUNDRED DOLLARS ($2,100) for each show
presented at which such items are sold pursuant to this agreement as PARKS'
share of the sale of artist-related merchandise with a minimum payment of
$75,000 for each year for the period January 1, 1990 through December 31, 1994
and $85,000 each year for the period January 1, 1995 through December 31, 1999.
All goods shall be sold at locations designated by PARKS and shall not be
hawked. All required minimum payments shall be made by October 15 of each year
of this contract.
8. In addition to the revenue provided for elsewhere in this
Agreement, LICENSEE shall pay to PARKS the sum of FIVE THOUSAND DOLLARS ($5,000)
for each performance recorded and/or first broadcasted. For each performance
televised or rebroadcast after the first, an additional fee shall be paid to
PARKS which shall be subject to negotiation between the parties. Payment shall
be made on or before commencement of recording or
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broadcast.
9. Force Majeure. Neither party shall be liable for failure to
perform its part of this license when such failure is due to fire, flood,
strikes or similar labor disturbances, industrial disturbances, war, riot,
insurrection and/or other causes beyond the control of the parties.
10. Capital Investment. LICENSEE guarantees to PARKS that it will
cause to be made a minimum investment of $6,050,000.00 in improvements and
alterations to facilities and in equipment as contained in LICENSEE'S proposal
and set forth in Appendix E hereof. The LICENSEE shall undertake to complete all
the improvments listed in of Appendix E attached hereto in the order they are
set forth therein and shall be responsible for all costs of said items up to and
including the minimum capital investment with the sole exception that PARKS
shall be responsible for all design and inspection costs for Item I. LICENSEE
shall be responsible for all other costs for Item I and all costs for all other
items up to the minimum investment.
For projects to be performed, LICENSEE shall submit written designs,
plans and/or specifications to PARKS on forms provided by PARKS. Said design,
plans and/or specifications shall include a detailed description of the work to
be done and materials to be used. For work estimated to cost $5,000 or more,
said design plans and/or specifications shall be signed by a Xxx
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Xxxx Xxxxx licensed architect or engineer. After PARKS approves said design,
plans and/or specifications, LICENSEE shall prepare a Work Project/Request for
Proposal (WPRFP). PARKS' approval of the WPRFP shall be obtained for each
project. LICENSEE shall solicit, through said WPRFP's, at least five (5) bidders
from a list provided by PARKS.
LICENSEE shall submit to PARKS all bids received together with a
recommendation for award which shall be made to the lowest, responsible,
qualified bidder. Upon PARKS' concurrence, LICENSEE shall make the award.
As each work project is completed, LICENSEE shall submit to PARKS a
statement containing the actual cost of said work project and the balance of
LICENSEE'S minimum capital investment remaining to be expended.
Title to all improvements, alterations and equipment shall vest
immediately in PARKS at the completion and approval of such improvement,
alteration or upon purchase, delivery and acceptance of the equipment.
LICENSEE'S staff costs or professional costs in excess of 15% of
construction costs are not allowable as a charge to the investment. In addition,
work estimated to cost $20,000 or more shall be advertised at least once in
Newsday. Bidders shall be required to pay wages at the prevailing rates set by
the New York State Department of Labor, said rates to be obtained by PARKS.
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All contracts entered into by LICENSEE for such work shall contain Appendices A
and B attached hereto.
For purposes of this license, a depreciation of investment shall be
calculated on a straight-line basis without regard to salvage value. The useful
life shall be the remaining time left in the life of the license at time of
investment. If this agreement is terminated by PARKS due to no fault of the
LICENSEE prior to the established expiration date, PARKS shall cause the
successor LICENSEE to reimburse LICENSEE in an amount equal to the useful life
left on the investment calculated as stated above. If this agreement is
terminated by the LICENSEE, PARKS shall have no further obligation to the
LICENSEE with regard to LICENSEE'S capital investment.
It is understood if any of the projects to be undertaken pursuant to
this Section are not completed by April 30, 1992, funds equal to the difference
between LICENSEE'S minimum capital investment guarantee and monies already
expended on such projects shall be deposited into a joint signitory (LICENSEE
and PARKS) interest bearing escrow account approved by PARKS. Such monies shall
be used to pay the costs for approved and completed work projects accepted by
PARKS.
All reviews and approval processes required from PARKS under this
section shall be conducted as expeditiously as possible.
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11. The LICENSEE agrees to keep separate books of account and
records of all operations and to establish systems of bookkeeping and accounting
in a manner satisfactory to PARKS and to permit inspection of said books and
records by PARKS and the Comptroller of the State of New York as often as, in
the judgment of PARKS, such inspection is deemed necessary. The LICENSEE shall
submit at the end of the year, or as required by PARKS, an audited profit and
loss statement of operations certified by a Certified Public Accountant approved
by PARKS under this license in a form approved by PARKS and consistent with the
terms of this Agreement.
12. Under direction from PARKS, the LICENSEE shall have until
October 15 of each year to remove LICENSEE'S property from the Xxxxx Beach
Theatre.
13. The LICENSEE shall provide complete and adequate performing,
operating, mechanical and other personnel necessary for the presentation of said
performances, including but not limited to security, stagehands, ticket takers,
cleaning crews for entire theatre including promenade, seating areas, restrooms,
stage and backstage, box office personnel and telephone operator for concert
information and weather.
It is understood that cleanliness and housekeeping of the Theatre
including concession areas shall be performed to the satisfaction of PARKS.
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PARKS shall have the right to direct the termination of any of the
LICENSEE'S employees at the Theatre who are not deemed satisfactory by PARKS.
14. The LICENSEE shall retain a House Manager satisfactory to PARKS
to supervise operations and with full authority to act on site on behalf of
LICENSEE, and to take such actions as individual circumstances may require.
15. The LICENSEE shall retain a press representative and related
personnel, satisfactory to PARKS for promotion and publicity purposes. LICENSEE
will spend not less than (1.5%) percent of the average gross ticket sales for
the preceding four years inclusive annually in paid advertising and promoting
the Xxxxx Beach Theatre summer performances. Promotion and publicity copy shall
be subject to prior approval of PARKS. Documentation of expenditures in the form
of paid invoices, cancelled checks and proof of publication shall be provided by
LICENSEE to PARKS no later than November 15 of each year of this contract.
Trades or "in kind" advertising will not be allowed as charges against the
required expenditure. PARKS shall have approval of all promotions, signage,
giveaways and all other advertising material in connection with operations under
this License.
16. Before signing or making a commitment, it shall be the
responsibility of the LICENSEE to obtain the prior approval of PARKS for all
performers, performances and events to be staged
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by the LICENSEE at the Xxxxx Beach Theatre, and it shall be the responsibility
of the LICENSEE, upon request, to make available to PARKS for review copies of
all agreements entered into with such performers at the earliest possible time.
LICENSEE shall also provide to PARKS dates of performances, ticket prices and
sponsors, if any, affiliated with the performer. A tentative schedule of such
performances and dates shall be provided by the LICENSEE to PARKS by April 15 of
each year of the term of this contract. Approval by PARKS shall be deemed to be
given if PARKS does not disapprove within five business days after receipt of
notification by the Regional Director for PARKS.
It is understood that PARKS may designate up to six days per year,
no more than four days occurring on a weekend, on which no performances may be
given at the Xxxxx Beach Theatre. The days of "no performance" shall be provided
by PARKS to the LICENSEE by February 15th of each year during the term of this
contract.
17. a. The LICENSEE shall submit copies, for prior written approval
by PARKS, of proposed contracts or sub-contracts for programs, food service,
rental or sale of blankets, cushions, binoculars, artist-related merchandise,
performance sponsors, broadcasting and recording of performances.
b. It is understood by LICENSEE that no fireworks of any
kind shall be permitted in connection with this contract.
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If LICENSEE wishes to present after show activities, notice of such activities
must be provided to PARKS for approval 4 minimum of two weeks prior to the date
of the scheduled activity.
18. Weather permitting, regular performances shall be given in
accordance with a schedule to be approved by PARKS. In the event of inclement
weather before or during a performance, the performance may be cancelled or may
be delayed or interrupted for not more than ninety minutes. Cancellation of
performance shall be made after discussions between PARKS and LICENSEE but final
determination shall be made by PARKS. Refund policy for cancelled performances,
designated as Appendix C, is attached to and made part of this Agreement.
19. Seat prices and group sale prices and the scale of the House
shall be available from the LICENSEE upon request of PARKS. Information on
ticket exchange policy, ticket sales plan and the use of complimentary tickets
shall be made available to PARKS upon request. LICENSEE shall be solely
responsible for the sale, distribution, exchange or refund of all tickets.
20. x. XXXXX shall provide and maintain the Theatre "as is,"
including provision of water and sewer or drain pipes. In the event of
interruption of utilities services under the control of PARKS, PARKS shall
undertake to repair such interruption promptly, and LICENSEE waives any and all
claims for compensation from any loss of revenue incurred by the LICENSEE as
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a result of such interruption. PARKS warrants that the Theatre is in similar
operating condition as it was during past operating seasons and agrees to
maintain it in good repair throughout the term of this Agreement.
b. LICENSEE shall be responsible for all costs of electricity,
fuel oil, gas and refuse disposal used and consumed in connection with this
license including lighting of Parking Field 5A.
c. LICENSEE shall be required to provide to PARKS
certification by a licensed engineer that the installation of main speaker at
the theatre is safe and in accordance with established standards. LICENSEE may
be required during the term of this agreement to provide such certification for
other equipment or structure if requested by PARKS.
21. LICENSEE shall provide (at no cost to PARKS) all sound systems,
lighting and other electrical or mechanical equipment necessary for the
presentation of performances under this license.
22. PARKS shall provide at its own cost and expense:
a. Parking area and parking attendants.
b. A maximum of thirty (30) theatre attendants.
c. One (1) night watchman.
d. A first aid station staffed during performances by one (1)
Emergency Medical Technician (EMT) or
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nurse.
23. It shall be the responsibility of the LICENSEE to provide a
concert stage shelter and other forms of protection from the weather in a manner
that is acceptable to PARKS.
24. It shall be the responsibility of the LICENSEE to provide
interior and exterior security for each and every performance pursuant to the
security plan, designated Appendix D, attached to and made part of this
Agreement. Since it is the overall responsibility of PARKS to insure a safe and
pleasant experience for the public at the Xxxxx Beach State Park, the LICENSEE
agrees and will take all steps necessary to advise its security staff that all
actions taken by such staff are subordinate to the authority of the officer in
charge of the regional state park police.
25. The LICENSEE agrees not to use, nor suffer or permit any person
to use in any manner whatsoever, the said premises or any part thereof or any
building thereon for any illegal purposes, or for any purpose in violation of
any federal, state or municipal law, ordinance, government rule, order or
regulation, and more specifically as it relates to the box office, or in
violation of any other rule or regulation applicable to the park region, now in
effect or hereafter enacted or adopted and will protect, indemnify and forever
save and keep harmless the State of New York, PARKS and their officers and
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employees and their agents, from and against any damage, penalty, fine,
judgment, expense or charge suffered, imposed, assessed or incurred for any
violation or breach of any law, ordinance, government rule, order or regulation
occasioned by any act, neglect or omission of the LICENSEE, or any employee,
agent or subcontractor; and in the event of any violation, or in case PARKS OR
its representatives shall deem any conduct on the part of the LICENSEE, or of
any employee, agent or subcontractor, or the said License or the operation
thereof, to be objectionable or improper, PARKS shall have the right and power
to require the LICENSEE to immediately undertake to cure within time limits
established by PARKS. In the event of a repeat violation in an extreme case,
PARKS is hereby authorized by the LICENSEE to at once declare this license
terminated without previous notice to the LICENSEE.
26. The LICENSEE shall procure at the LICENSEE'S own cost and
expense all permits or licenses necessary for the legal operation of this
license and shall be responsible for all other fees and commissions (including,
but not limited to EMI, ASCAP, SESAC, ticketron and credit card fees and
commissions) and all other costs associated with the performances at the Xxxxx
Beach Theatre.
27. It is agreed that all items sold or used pursuant to this
license will be of good quality and that quality of such
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items will be subject to the advance approval of PARKS.
28. It is expressly understood and agreed that no real or personal
property is leased to the LICENSEE; that it is a license and that the LICENSEE'S
right to occupy the premises and to operate the license hereby granted shall
continue only so long as the LICENSEE shall comply strictly and promptly with
each and all of the material undertakings, provisions, covenants, agreements,
stipulations and conditions contained herein.
Nothing herein contained shall grant or be construed as creating a
co-partnership between PARKS and the LICENSEE or to constitute the LICENSEE as
agent of PARKS.
29. It is expressly agreed that PARKS shall have a continuing lien
on all personal property of the LICENSEE which may be on the premises for any
and all sums which may from time to time become and be due to PARKS under the
terms of this Agreement, and upon default of payment, PARKS has the right to
take possession of and retain the same until the full amount due shall be paid
or to sell the same at public auction, and after deducting the expenses of such
sale, apply the balance of the proceeds to such payment, and if there should be
any deficiency, to resort to any legal remedy.
30. If the LICENSEE shall fail to make payments to PARKS in
accordance with the terms of this Agreement or shall fail or refuse to carry
out the terms thereof, then PARKS may
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cancel this agreement upon five days (5) notice, and upon such termination,
PARKS shall have the right to enter the premises, occupied by the LICENSEE by
force or otherwise and take full possession thereof, and close the premises for
such time as it may deem proper, or at PARKS' option, may remove therefrom the
property and effects of the LICENSEE, and with or without legal process, expel,
oust and remove all parties who may be present upon or occupy any part of the
premises, and all personal property that may be thereon or therein contained,
without being liable to prosecution, damage or damages therefor, or for any
damage or damages to, or loss of any personal property belonging to any party
upon or occupying said premises or any part thereof from any cause whatsoever by
reason of such removal. The LICENSEE expressly waives any and all claims for
damages and loss against the People of the State of New York or PARKS, their
officers and agents for or on account of any act done or caused to be done in
exercising this right; and PARKS shall have the right to sell the said personal
property so seized or removed and recover by such sale or legal process any and
all sums due to PARKS under the terms of this Agreement plus the costs and
expenses incurred under the terms of this Agreement.
31. This contract may not be assigned by the LICENSEE or its
right, title or interest therein assigned, transferred, conveyed, sublet or
disposed of without the previous consent, in
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writing, of PARKS.
32. The LICENSEE agrees to obtain or cause to be obtained Products
Liability Insurance providing protection for claims for damages arising out of
products sold or vended by or through LICENSEE in connection with this license
with limits of not less than $1,000,000.
33. The LICENSEE agrees to obtain or cause to be obtained any
necessary Worker's Compensation Insurance to protect the LICENSEE and PARKS
and/or the State of New York from suits arising from injuries sustained by any
of the employees of the LICENSEE or any of its contractors during such periods
as they shall be in the employ of the LICENSEE and/or its contractors and
provide such coverage for such employees as may be required under the Disability
Benefits Law.
34. The LICENSEE shall procure at his own cost and expense such
Public Liability Insurance as will protect the LICENSEE, PARKS, the People of
the State of New York and their officers and employees from any and all claims
for damage to property, for personal injuries, including death, which may arise
from the performance of this license. Policies or certificates of insurance
required to be obtained pursuant to Sections 32, 33 and 34 hereof shall be
delivered to PARKS with full premiums paid before the commencement of operations
by the LICENSEE. All policies shall be subject to the approval of PARKS for
adequacy
- 18 -
and form of protection and shall name the People of the State of New York and
PARKS additional insureds. All liability policies shall provide limits of at
least not less than ONE MILLION DOLLARS ($1,000,000) in the aggregate for
personal injury and property damage in any one accident. Nothing herein
contained shall be construed to render the LICENSEE an insurer of PARKS with
respect to or responsible for, any accident, injury, claim, suit, loss or damage
resulting from any act, omission or neglect of PARKS, its representatives or
employees. In addition, the above described policies shall not be cancelled
without twenty (20) days prior written notice to PARKS.
35. The LICENSEE assumes all risk in the operation of his license
and shall be solely responsible and answerable in damages for all accidents or
injuries to person or property arising therefrom, and covenants and agrees to
defend, indemnify, and keep harmless the People of the State of New York and
PARKS and their officers and employees from any and all claims, suits, losses,
damage or injury to person or property whatsoever kind and nature, whether
direct or indirect, arising out of the operation of this license or the
carelessness, negligence or improper conduct of the LICENSEE or any servant,
agent or employee of the LICENSEE, which responsibility shall not be limited to
the insurance coverage provided for in this license.
36. The LICENSEE hereby expressly waives any and all
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claims for compensation for any and all loss or damage sustained by reason of
any defect, deficiency or impairment of the theatre structure and equipment, the
water supply system, drainage system, gas mains, electrical apparatus or wires
furnished for the premises or by reason of any loss or impairment of gas supply,
water supply, light or current which may occur from time to time for any cause
or for any loss or damage sustained by the LICENSEE resulting from fire, water,
sea, wind, tornado, cIvil commotion, strikes or riots or from any cancellation
or postponement of performance as hereinafter provided and the LICENSEE hereby
expressly waives all rights, claims and demands and forever releases and
discharges the State of New York and PARKS and its officers and agents from any
and all demands, claims, actions and causes of action arising from any of the
causes aforesaid.
37. The LICENSEE agrees to deposit with PARKS the sum of $350,000
either a) as an irrevocable letter of credit provided in accordance with
instructions and in form acceptable to PARKS, or b) faithful performance bond
issued by a surety or surreties satisfactory to PARKS to protect PARKS against
the failure of the LICENSEE to pay to PARKS revenue owed to it by the
performance of this license or to return the Theatre to a condition, of the of
the preceding season, reasonable wear and tear excepted, upon termination of
this license. The letter of credit, less any
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deductions made in accordance with this paragraph, shall be returned to the
LICENSEE upon receipt of the last payment due PARKS under this license and
restoration of the Theatre to the satisfaction of PARKS.
38. In accepting this license, the LICENSEE acknowledges that it has
inspected the premises herein and the surrounding properties in Xxxxx Beach
State Park, and acknowledges that said premises are in good order and repair and
that the LICENSEE is satisfied with the condition, fitness and order thereof.
39. The LICENSEE shall not contract for or sell rights to broadcast
by radio or television, recording or film rights or any like or similar activity
without express approval in writing by PARKS. PARKS shall participate in any
revenues generated by any such arrangements pursuant to paragraph 8 above.
40. Where provision is made herein for notice or approvals given in
writing, the same may be given by mailing such to the LICENSEE, care of Beach
Concerts, Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000. Where provision is made
herein for notice or request for approval by PARKS, the said notice or said
approval request, supported by the required documentation shall be sent to PARKS
in care of the Regional Director, New York State Office of Parks, Recreation and
Historic Preservation, Xxxxx Xxxx Xxxxxx, Xxx 000, Xxxxxxx Xxxx Xxxxx Park,
Babylon,
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Xxxx Xxxxxx, Xxx Xxxx 00000 with copy to the Deputy Commissioner of Operations,
Office of Parks, Recreation and Historic Preservation, Agency Building Xx. 0,
Xxxxxx Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000.
41. Nothing herein contained shall be deemed to obligate PARKS or
the State of New York beyond moneys made available by the Director of the
Budget pursuant to the State Finance Law, and no liability on account thereof
shall be incurred by PARKS or the State of New York beyond moneys made available
for the purpose thereof.
42. The books of account and all other records required to be kept
by the LICENSEE in accordance with this agreement shall be subject to audit and
inspection by PARKS and the Comptroller of the State of New York and the
LICENSEE shall maintain such records for a period of not less than six (6) years
after the termination or expiration of the agreement or any extended term
thereof.
43. This agreement is subject to the approval of the Comptroller
and the Attorney General of the State of New York.
44. Appendices, Attachments and Incorporation by Reference: This
agreement incorporates all the provisions set forth in Appendices A through F
(attached hereto and made a part hereof) and further incorporates by reference
the "REQUEST FOR PROPOSAL--XXXXX BEACH THEATRE REQUEST FOR PROPOSAL RFP"
prepared
- 22 -
by PARKS, dated May 1989 and the LICENSEE'S responding proposal of November 13,
1989, plus its oral presentation of November 30, 1989. In the event that any
terms, conditions, specification of requirements in the above documents are in
conflict, the following order of precedence shall apply for acceptability of
work effort and agreement compliance:
a. This agreement
b. The recorded oral presentation of November 30, 1989 by
the LICENSEE
c. LICENSEE'S response of November 13, 1989
x. XXXXX' RFP
45. License Disputes: If LICENSEE has a dispute with the State
regarding the performance of this contract, LICENSEE shall notify PARKS in
writing. At the sole discretion of PARKS, PARKS designee may conduct a hearing
or resolve the matter based solely on the written dispute. PARKS' designee may
request the submission of any additional information or arguments as deemed
necessary from LICENSEE or any other party to assist in resolving the dispute.
The decision will be made within 30 days of receipt of LICENSEE'S notification.
Pending final decision of a dispute hereunder, the LICENSEE shall proceed
diligently with the performance of the work under this License and in accordance
with PARKS' decision. The parties agree that the dispute process shall precede
any action in court, but shall not otherwise bar
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such action.
46. This contract represents the final agreement between the parties
and may not be changed orally. Such agreement may be amended in writing by
mutual consent of said parties, which amendment becomes effective upon the
approval of the Attorney General and Comptroller of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be signed and sealed the day and year first above written.
NEW YORK STATE OFFICE OF PARKS,
RECREATION & HISTORIC PRESERVATION
By /s/
-------------------------------
LICENSEE - BEACH CONCERTS, INC.
By /s/ Xxx Xxxxxxxx
-------------------------------
APPROVED AS TO FORM
ATTORNEY GENERAL
APPROVED FOR THE COMPTROLLER
APPROVED AS TO FORM
NEW YORK STATE
ATTORNEY GENERAL
FEB 2 1990
/s/ [Illegible]
ASSOCIATE ATTORNEY
[STAMP - GRAPHIC OMITTED]
RECEIVED
MAY 23 0000
XXX XXXXX & RECREATION
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STATE OF NEW YORK )
) SS.:
COUNTY OF ALBANY )
On this 29 day of January, 1990, before me personally came Xxxx
Xxxxxx, to me known and known to me to be the Commissioner of Parks, Recreation
and Historic Preservation, the person described as such in and who executed the
foregoing instrument, and he duly acknowledged to me that he executed the same
as such Commissioner of Parks, Recreation and Historic Preservation for the
purpose therein mentioned.
/s/ Xxxxxxxxx X Xxxxx
------------------------------
Notary Public
XXXXXXXXX X. XXXXX
Notary Public, State of New York
Qualified in Albany County
No. 3960940
Commission Expires 4/30/91
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On this 29 day of January, l990, before me personally came Xxx
Xxxxxxxx, to me known who being by me duly sworn, did depose and say that he is
the President of the Board of Beach Concerts, Inc., the corporation described in
and which executed the foregoing instrument; that he has been duly authorized by
the Board of Directors of said corporation to execute the foregoing instrument
on behalf of said corporation and that he signed his name thereto by order of
said corporation for the purposes and uses therein described.
/s/ Xxxx X. XxxXxxxxxx
------------------------------
Notary Public
XXXX X. XxxXXXXXXX
Notary Public, State of New York
No. 24-01MA4950432
Qualified in Kings County
Commission Expires 5/1/91
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APPENDIX A
STANDARD CLAUSES FOR ALL NEW
YORK STATE CONTRACTS
The parties to the attached contract, license, lease, amendment or other
agreement of any kind (hereinafter, "the contract" or "this contract") agree to
be bound by the following clauses which are hereby made a part of the contract
(the word "Contractor" herein refers to any party other than the State, whether
a contractor, licensor, licensee, lessor, lessee or any other party):
1. EXECUTORY CLAUSE. In accordance with Section 41 of the State Finance
Law, the State shall have no liability under this contract to the Contractor or
to anyone else beyond funds appropriated and available for this contract.
2. NON-ASSIGNMENT CLAUSE. In accordance with Section 138 of the State
Finance Law, this contract may not be assigned by the Contractor or its right,
title or interest therein assigned, transferred, conveyed, sublet or otherwise
disposed of without the previous consent, in writing, of the State and any
attempts to assign the contract without the State's written consent are null and
void. The Contractor may, however, assign its right to receive payment without
the State's prior written consent unless this contract concerns Certificates of
Participation pursuant to Article 5-A of the State Finance Law.
3. COMPTROLLER'S APPROVAL. In accordance with Section 112 of the State
Finance Law (or, if this contract is with the State University or City
University of New York, Section 355 or Section 6218 of the Education Law), if
this contract exceeds $5,000 ($20,000 for certain S.U.N.Y. and C.U.N.Y.
contracts), or if this is an amendment for any amount to a contract which, as so
amended, exceeds said statutory amount, or if, by this contract, the State
agrees to give something other than money, it shall not be valid, effective or
binding upon the State until it has been approved by the State Comptroller and
filed in his office.
4. WORKERS' COMPENSATION BENEFITS. In accordance with Section 142 of the
State Finance Law, this contract shall be void and of no force and effect unless
the Contractor shall provide and maintain coverage during the life of this
contract for the benefit of such employees as are required to be covered by the
provisions of the Workers' Compensation Law.
2.
5. NON-DISCRIMINATION REQUIREMENTS. In accordance with Article 15 of the
Executive Law (also known as the Human Rights Law) and all other State and
Federal statutory and constitutional non-discrimination provisions, the
Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, sex, national origin, age, disability
or marital status. Furthermore, in accordance with Section 220-e of the Labor
Law, if this is a contract for the construction, alteration or repair of any
public building or public work or for the manufacture, sale or distribution of
materials, equipment or supplies, and to the extent that this contract shall be
performed within the State of New York, Contractor agrees that neither it nor
its subcontractors shall, by reason of race, creed, color, disability, sex or
national origin: (a) discriminate in hiring against any New York State citizen
who is qualified and available to perform the work; or (b) discriminate against
or intimidate any employee hired for the performance of work under this
contract. If this is a building service contract as defined in Section 230 of
the Labor Law, then, in accordance with Section 239 thereof, Contractor agrees
that neither it nor its subcontractors shall, by reason of race, creed, color,
national origin, age, sex or disability: (a) discriminate in hiring against any
New York State citizen who is qualified and available to perform the work; or
(b) discriminate against or intimidate any employee hired for the performance of
work under this contract. Contractor is subject to fines of $50.00 per person
per day for any violation of Section 220-e or Section 239 as well as possible
termination of this contract and forfeiture of all moneys due hereunder for a
second or subsequent violation.
6. WAGE AND HOURS PROVISIONS. If this is a public work contract covered by
Article 8 of the Labor Law or a building service contract covered by Article 9
thereof, neither Contractor's employees nor the employees of its subcontractors
may be required or permitted to work more than the number of hours or days
stated in said statutes, except as otherwise provided in the Labor Law and as
set forth in prevailing wage and supplement schedules issued by the State Labor
Department. Furthermore, Contractor and its subcontractors must pay at least the
prevailing wage rate and pay or provide the prevailing supplements, including
the premium rates for overtime pay, as determined by the State Labor Department
in accordance with the Labor Law.
7. NON-COLLUSIVE BIDDING REQUIREMENT. In accordance with Section
139-d of the State Finance Law, if this contract was awarded based upon the
submission of bids, Contractor warrants, under penalty of perjury, that its
bid was arrived at independently and without collusion aimed at
3.
restricting competition. Contractor further warrants that, at the time
Contractor submitted its bid, an authorized and responsible person executed and
delivered to the State a non-collusive bidding certification on Contractor's
behalf.
8. INTERNATIONAL BOYCOTT PROHIBITION. In accordance with Section 220-f of
the Labor Law and Section 139-h of the State Finance Law, if this contract
exceeds $5,000, the Contractor agrees, as a material condition of the contract,
that neither the Contractor nor any substantially owned or affiliated person,
firm, partnership or corporation has participated, is participating, or shall
participate in an international boycott in violation of the federal Export
Administration Act of 1979 (50 USC App. Sections 2401 et seq.) or regulations
thereunder. If such Contractor, or any of the aforesaid affiliates of
Contractor, is convicted or is otherwise found to have violated said laws or
regulations upon the final determination of the United States Commerce
Department or any other appropriate agency of the United States subsequent to
the contract's execution, such contract, amendment or modification thereto shall
be rendered forfeit and void. The Contractor shall so notify the State
Comptroller within five (5) business days of such conviction, determination or
disposition of appeal (2 NYCRR 105.4)
9. SET-OFF RIGHTS. The State shall have all of its common law, equitable
and statutory rights of set-off. These rights shall include, but not be limited
to, the State's option to withhold, for the purposes of set-off any moneys due
to the Contractor under this contract up to any amounts due and owing to the
State with regard to this contract, any other contract with any State department
or agency, including any contract for a term commencing prior to the term of
this contract, plus any amounts due and owing to the State for any other reason
including, without limitation, tax delinquencies, fee delinquencies or monetary
penalties relative thereto. The State shall exercise its set-off rights in
accordance with normal State practices including, in cases of set-off pursuant
to an audit, the finalization of such audit by the State agency, its
representatives, or the State Comptroller.
10. RECORDS. The Contractor shall establish and maintain complete and
accurate books, records, documents, accounts and other evidence directly
pertinent to performance under this contract (hereinafter, collectively, "the
Records"). The Records must be kept for the balance of the calendar year in
which they were made and for six (6) additional years thereafter. The State
Comptroller, the Attorney General and any other person or entity authorized
4.
to conduct an examination, as well as the agency or agencies involved in this
contract, shall have access to the Records during normal business hours at an
office of the Contractor within the State of New York or, if no such office is
available, at a mutually agreeable and reasonable venue within the State, for
the term specified above for the purposes of inspection, auditing and copying.
The State shall take reasonable steps to protect from public disclosure any of
the Records which are exempt from disclosure under Section 87 of the Public
Officers Law (the "Statute") provided that: (i) the Contractor shall timely
inform an appropriate State official, in writing, that said records should not
be disclosed; and (ii) said records shall be sufficiently identified; and (iii)
designation of said records as exempt under the Statute is reasonable. Nothing
contained herein shall diminish, or in any way adversely affect, the State's
right to discovery in any pending or future litigation.
11. IDENTIFYING INFORMATION AND PRIVACY NOTIFICATION:
(a) FEDERAL EMPLOYER IDENTIFICATION NUMBER
and/or FEDERAL SOCIAL SECURITY NUMBER.
All invoices or New York State standard vouchers submitted for payment for
the sale of goods or services or the lease of real or personal property to a New
York State agency must include the payee's identification number, i.e., the
seller's or lessor's identification number. The number is either the payee's
Federal employer identification number or Federal social security number, or
both such numbers when the payee has both such numbers. Failure to include this
number or numbers may delay payment. Where the payee does not have such number
or numbers, the payee, on his invoice or New York State standard voucher, must
give the reason or reasons why the payee does not have such number or numbers.
(b) PRIVACY NOTIFICATION.
(1) The authority to request the above personal information
from a seller of goods or services or a lessor of real or personal property, and
the authority to maintain such information, is found in Section 5 of the State
Tax Law. Disclosure of this information by the seller or lessor to the State is
mandatory. The principal purpose for which the information is collected is to
enable the State to identify individuals, businesses and others who have been
delinquent in filing tax returns or may have understated their tax liabilities
and to generally identify persons affected by the taxes administered by the
5.
Commissioner of Taxation and Finance. The information will be used for tax
administration purposes and for any other purpose authorized by law.
(2) The personal information is requested by the purchasing
unit of the agency contracting to purchase the goods or services or lease the
real or personal property covered by this contract or lease. The information is
maintained in New York State's Central Accounting System by the Director of
State Accounts, Office of the State Comptroller, AESOB, Xxxxxx, Xxx Xxxx 00000.
12. EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITIES AND WOMEN: In accordance
with Section 312 of the Executive Law, if this contract is: (i) a written
agreement or purchase order instrument, providing for a total expenditure in
excess of $25,000.00, whereby a contracting agency is committed to expend or
does expend funds in return for labor, services, supplies, equipment, materials
or any combination of the foregoing, to be performed for, or rendered or
furnished to the contracting agency; or (ii) a written agreement in excess of
$100,000.00 whereby a contracting agency is committed to expend or does expend
funds for the acquisition, construction, demolition, replacement, major repair
or renovation of real property and improvements thereon; or (iii) a written
agreement in excess of $100,000.00 whereby the owner of a State assisted
housing project is committed to expend or does expend funds for the acquisition,
construction, demolition, replacement, major repair or renovation of real
property and improvements thereon for such project, then:
(a) The contractor will not discriminate against employees or
applicants for employment because of race, creed, color, national
origin, sex, age, disability or marital status, and will undertake
or continue existing programs of affirmative action to ensure that
minority group members and women are afforded equal employment
opportunities without discrimination. Affirmative action shall mean
recruitment, employment, job assignment, promotion, upgradings,
demotion, transfer, layoff, or termination and rates of pay or other
forms of compensation;
(b) at the request of the contracting agency, the Contractor shall
request each employment agency, labor union, or authorized
representative of workers
6.
with which it has a collective bargaining or other agreement or
understanding, to furnish a written statement that such employment
agency, labor union or representative will not discriminate on the
basis of race, creed, color, national origin, sex, age, disability
or marital status and that such union or representative will
affirmatively cooperate in the implementation of the contractor's
obligations herein; and (c) the Contractor shall state, in all
solicitations or advertisements for employees, that, in the
performance of the State contract, all qualified applicants will be
afforded equal employment opportunities without discrimination
because of race, creed, color, national origin, sex, age, disability
or marital status.
Contractor will include the provisions of "a", "b" and "c", above, in
every subcontract over $25,000.00 for the construction, demolition, replacement,
major repair, renovation, planning or design of real property and improvements
thereon (the "Work") except where the Work is for the beneficial use of the
Contractor. Section 312 does not apply to: (i) work, goods or services unrelated
to this contract; or (ii) employment outside New York State; or (iii) banking
services, insurance policies or the sale of securities. The State shall consider
compliance by a contractor or subcontractor with the requirements of any federal
law concerning equal employment opportunity which effectuates the purpose of his
section. The contracting agency shall determine whether the imposition of the
requirements of the provisions hereof duplicate or conflict with any such
federal law and if such duplication or conflict exists, the contracting agency
shall waive the applicability of Section 312 to the extent of such duplication
or conflict. Contractor will comply with all duly promulgated and lawful rules
and regulations of the Governor's Office of Minority and Women's Business
Development pertaining hereto.
13. CONFLICTING TERMS. In the event of a conflict between the terms
of the contract (including any and all attachments thereto and amendments
thereof) and the terms of this Appendix A, the terms of this Appendix A shall
control.
7.
14. GOVERNING LAW. This contract shall be governed by the laws of the
State of New York except where the Federal supremacy clause requires otherwise.
15. LATE PAYMENT. Timeliness of payment and any interest to be paid to
Contractor for late payment shall be governed by Article XI-A of the State
Finance Law to the extent required by law.
16. NO ARBITRATION. Disputes involving this contract, including the breach
or alleged breach thereof, may not be submitted to binding arbitration (except
where statutorily authorized) but must instead, be heard in a court of
competent jurisdiction of the State of New York.
17. SERVICE OF PROCESS. In addition to the methods of service allowed by
the State Civil Practice Law & Rules ("CPLR"), Contractor hereby consents to
service of process upon it by registered or certified mail, return receipt
requested. Service hereunder shall be complete upon Contractor's actual receipt
of process or upon the State's receipt of the return thereof by the United
States Postal Service as refused or undeliverable. Contractor must promptly
notify the State, in writing, of each and every change of address to which
service of process can be made. Service by the State to the last known address
shall be sufficient. Contractor will have thirty (30) calendar days after
service hereunder is complete in which to respond.
August, 0000
Xxxxxxxx X
XXXXXX XX XXXXX, RECREATION AND HISTORIC PRESERVATION
Participation by Minority Group Members and
Women with Respect to State Contracts
In accordance with Article 15-A of the Executive Law, the parti to the attached
contract, license, lease, amendment or other agreement of any kind (hereinafter,
"the contract" or "this contract") agree to be bound by the following clauses
which are hereby made a part of the contract (the word "contractor" refers to
any party other than the State, whether referred to as a contractor, licensor,
licensee, lessor, lessee consultant, grant recipient, local sponsor or by any
other name:
1. Definitions.
(a) "Certified business" shall mean a business verified as minority or
women-owned business enterprise pursuant to section 314 of the Executive Law.
(b) "Minority group member" shall mean a United States citizen or
permanent resident alien who is and can demonstrate membership in one of the
following groups:
(i) Black persons having origins in any of the Black African racial
groups:
(ii) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban,
Central or South American of either Indian or Hispanic origin, regardless
of race:
(iii) Native American or Alaskan native persons having origins in
any of the original peoples of North America:
(iv) Asian and Pacific Islander persons having origins in any of the
Far East countries, South East Asia, the Indian subcontinent or the
Pacific Islands.
(c) "Minority-owned business enterprise shall mean a business enterprise,
including a sole proprietorship, partnership or corporation that is:
(i) at least fifty-one percent owned by one or more minority group
members;
(ii) an enterprise in which such minority ownership is real,
substantial and continuing;
(iii) an enterprise in which such minority ownership has and
exercises the authority to control independently the day-to-day business
decisions of the enterprise; and
(iv) an enterprise authorized to do business in this state and
independently owned and operated.
(d) "Women-owned business enterprise" shall mean a business enterprise,
including a sole proprietorship, partnership or corporation that is:
(i) at least fifty-one percent owned by one or more United States
citizens or permanent resident aliens who are women;
(ii) an enterprise in which the ownership interest of such women is
real, substantial and continuing;
(iii) an enterprise in which such women ownership has and exercises
the authority to control independently the day-to-day business decisions
of the enterprise; and
(iv) an enterprise authorized to do business in this state and
independently owned and operated.
2. Good Faith Efforts.
The contractor agrees to make good faith efforts to employ minority and
women workers and to solicit and obtain the participation of certified minority
and women-owned business enterprises as subcontractors and suppliers on this
contract.
3. Reports.
The contractor agrees to submit, and to require subcontractors to submit,
reports showing any participation of minority and women-owned business
enterprises on this contract. Failure to submit reports in a timely fashion
shall be cause for scheduled payments to the contractor to be delayed.
APPENDIX C
REFUND POLICY
1. Rain or Shine - There will be no refund for shows advertised as Rain or
Shine. In the event it rains so hard people cannot attend, they will be offered
another show of their choice.
2. Raindate - If show is held on raindate, no refund will be granted. If
raindate is also cancelled due to weather, and no additional date is schedule,
patron will first be offered their choice of any other show, and if none are
acceptable, a refund would be granted.
3. Date Change - If show is rescheduled, all tickets for original date
would be honored on new date. If this is not acceptable to patron, offer of any
other show will be made; if still not acceptable, refund would be offered.
4. Cancellation - If a show is cancelled for any reason, the patron would
be offered another show or a refund.
APPENDIX D
SECURITY PLAN
By March 15 of each year of the agreement the LICENSEE (producer) shall
prepare and supply to PARKS a plan for security consistent with the provisions
of Section 24 of the agreement. The components for this plan are all subject to
advance approval by PARKS and include:
1. Provision of interior and perimeter security proportionate to the
size and type of crowd expected. Based on crowd size alone, the
following minimum security levels are required:
MINIMUM NUMBER
CROWD SIZE OF SECURITY STAFF
---------- -----------------
7,000-10,400 67
4,000- 6,999 51
UP TO 3,999 33
NOTE: The minimums specified may not be reduced without advance
approval by PARKS.
2. Specified planned deployments of the security staff: This
information shall detail the assigned locations, duties and assigned
hours of coverage.
3. Chain of command within the concert security team.
4. Identification of assigned posts which are radio-equipped (LICENSEE
to supply two such portable radios to PARKS for theatre management
staff).
5. Arrangements for security coordination with park police, park
management, theatre management, and production staff: This shall
include general pre-season meetings for the purpose of orienting key
supervisory staff as well as night-of-show coordinative meetings
with theatre management to review arrangements for specific
performances.
6. Interface with first aid personnel and the emergency medical system
in place at the theatre.
- 1 -
7. Emergency evacuation of the theatre consistent with the theatre
crowd control plan.
8. Uniforms and equipment being provided to security staff to
facilitate ease of identification and proper functioning (note:
theatre security staff are to be unarmed at all times while serving
on the theatre security team).
9. Photo identification badges for concert security staff.
10. Arrangements for incident reporting and documentation with PARKS.
PARKS reserves the right to require LICENSEE to discipline, retrain, or in
extreme cases, to dismiss any employee, hourly or management, whose actions or
appearance are inconsistent with the standards of PARKS, and the best interests
of the State of New York. Any collective bargaining agreement entered into
between LICENSEE and any labor union or organization must recognize this right
of PARKS, and the presence of such an agreement will in no way diminish the
rights of PARKS under this agreement.
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XXXXX BEACH THEATRE
PRESENTATION OF PRODUCTIONS
APPENDIX E
CAPITAL IMPROVEMENTS
The LICENSEE will be required to make improvements in the licensed
premises through qualified contractors approved by PARKS. All improvements
described shall be completed prior to April 30, 1992.
Capital Improvements are listed in priority order. Items shall be
completed in such order until capital improvement funds are exhausted. If, after
all listed projects are completed, all capital improvements funds have not been
expended, additional projects designated by PARKS shall be completed until all
funds are expended. If prospective costs for a project, which has been agreed to
by both parties, appear to exceed original cost estimates and such prospective
costs would cause the LICENSEE'S minimum capital investment to be exceeded, than
that particular project will be placed on hold until it is mutually agreed how
to proceed.
Item I - Rest rooms, concession facilities and other stadium work.
Renovation and refurbishment of space on promenade floor (ground level)
specifically relating to rest room facilities, and concession operations to
include:
1. Provision of women's restroom areas with a minimum of 85 toilets, 55
sinks, men's rest room areas with a minimum of 77 urinals, 28 toilets and 50
sinks. Each rest room shall have access to a utility closet of at least 50 sq.
feet with appropriate fixtures. All rest rooms shall be directly accessible from
the promenade level but shall not be located in the Theatre lobby. This project
shall include all necessary plumbing, heating and sewage work in connection with
the installation of the new rest rooms. Rest rooms must conform to or exceed
existing codes including those for handicapped access. All abandoned fixtures
and equipment shall be removed from existing rest room areas, and such areas
shall be restored or refurbished to accommodate future uses to be designated by
PARKS.
2. Rebuilding and renovation of concession areas. Work shall include
demolishing and removal of existing temporary concession building, installation
of a minimum of 165 linear feet
- 1 -
of counter space and 1500 square feet of storage space adjacent to promenade
area plus construction of a number of remote gazebo-type structure with a total
of 60 linear feet of counter space and 500 square feet of storage space, such
structures to be located within the patio area.
3. Replacement of temporary barrier walls at the top of the stadium with a
permanent barrier to match the existing side wind screens.
4. Removal of existing house speaker system and the cable system that
supports them including the towers.
Item II -- Upgrading and renovation of electrical and water utility
services throughout the Theatre to include a new permanent distribution system
between the side towers of the stage and the stage area.
Item III - Modifications and renovation of performance and seating area to
include:
1. Demolish and remove temporary wood structure and underpinnings
adjoining concrete main stage and reconstruct temporary orchestra seating area
into permanent seating area with a sloped deck including installation of
permanent weather resistant seats to match existing stadium seats.
2. Removal of wood deck from main stage and resurfacing stage as approved
by PARKS.
3. Construct permanent and accessible seating for a minimum of 50 disabled
theatre patrons who are confined to wheelchairs.
Item IV - Renovation and Refurbishment of performer's dressing rooms and
"Green Room" space for the Main Stage area including construction of a permanent
catering kitchen, interior reception space and toilet and shower rooms. The
above renovation shall include all necessary utility work; water, sewage and
electric.
- 2 -
