# Joint Appendix — National Park Hospitality Association v. Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0589%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2003 - **Citation:** 538 U.S. 803 ## Text Sepreme Coast Us. FIL&b am c~ DEC 27 2002 fh ; (47 | _— No. 02-196 OFFICE OF THR CLERK et In the Supreme Court of the Gnited States NATIONAL PARK HOSPITALITY ASSOCIATION, Petitioner, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET™AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit JOINT APPENDIX KENNETH S. GELLER THEODORE B. OLSON Counsel of Record Solicitor General RICHARD B. KATSKEE Counsel of Record DAVID M. GOSSETT Department of Justice Mayer, Brown, Rowe & Maw Washington, DC 20530-0001 1909 K Street, NW (202) 514-2217 Washington, DC 20006 (202) 263-3000 Counsel for Federal Counsel for Petitioner Respondents PETITION FOR CERTIORARI FILED AUGUST 6, 2002 CERTIORARI GRANTED NOVEMBER !2, 2002 TABLE OF CONTENTS . Relevant Docket Entries: U.S. District Court for the District of Columbia . Relevant Docket Entries: U.S. Court of Appeals for the District of Columbia Circuit . Complaint . Order Granting Certiorari . “Prospectus Under Which a Concession Contract Will Be Open For Comeptition For The Operation Of: Accommodations, Facilities, and Services On the South Rim of Grand Canyon National Park,” April 5, 2001 (excerpts) . Final Rule, Concessions Contracts, 65 Fed. Reg. 20,630 (April 17, 2000) (excerpts) . Simplified Concession Contracts; Revision, 65 Fed. Reg. 44,894 (July 19, 2000) (excerpts) NOTICE The following items have been omitted in printing this ‘ con er Catal am» - Joint Appendix because they appear on the following pages in the printed Appendix to the Petition for a Writ of Certio- rari: A. Opinion of the United States Court of Appeals for the District of Columbia Circuit, filed March 1, B. Opinion of the United States District Court for the District of Columbia, filed May 23, 2001. .................. 35a TABLE OF CONTENTS (continued) c. Order of the United States Court of Appeals for the District of Columbia Circuit denying petition for rehearing; filed May 8, 2002 000.......ccccccccscccecooee-e. D. Order of the United States Court of Appeals for the District of Columbia Circuit denying petition for rehearing en banc, filed May 8, 2002 l APPENDIX A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 00-CV-2885 (Lead Docket: No. 00-CV-2838) NATIONAL PARK HOSPITALITY ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, £7 AL., Defendants RELEVANT DOCKET ENTRIES" DATE 8 DOCKET ENTRY [following entries are from Docket in 00-2885] 12/1/00 1 COMPLAINT filed by plaintiff NATIONAL PARK HOSPITALITY For the Court’s convenience, the docket entries set forth below have been revised and reworded to reflect more accurately and clearly the actual entries contained in the lower court's docket. Because in the district court this case was consolidated with three other similar lawsuits, and thereafter the clerk only fully up- dated the docket sheet in the “lead” case, the docket presented here is derived from both that in the instant case and that in the “lead” DATE B 1/19/01 8 1/23/01 14 1/25/01 12 1/30/01 17 2/14/01 24 2/14/01 -- 2 DOCKET ENTRY ASSOCIATION MOTION filed by federal defendants to dismiss complaint, or, in the alternative for summary judgment ADMINISTRATIVE RECORD filed by federal defendants MOTION filed by DELAWARE NORTH PARK SERVICES to intervene ADMINISTRATIVE RECORD filed by federal defendants MEMORANDUM/ORDER by Judge Royce C. Lamberth granting plaintiffs’ joint motion to consolidate case Nos. 00- 2838, 00-2937, 00-2885 and 00-3085 ALL PLEADING IN THIS CASE ARE BEING DOCKETED AND FILED IN C.A. 00-2838 PURSUANT TO ORDER DATED 2/14/01. [following entries inserted from Docket in 00-2838] 2/28/01 34 2/28/01 36 3/7/01 40 RESPONSE (JOINT) by plaintiffs in Opposition to motion to dismiss, motion for summary judgment, and miscellaneous discovery motions JOINT MOTION (SECOND) by plaintiffs for partial summary judgment, on the grounds that the provisions of the NPS Solicitations and Regulations Pertaining to Contract Performance and Concessioner Choice Violate the 1998 ACT NOTICE OF SUPPLEMENTAL DATE 4/9/01 4/9/01 4/24/01 4/24/01 4/30/01 5/18/01 B 61 70 79 3 DOCKET ENTRY AUTHORITY RE: Tucker Act Jurisdiction and applicability of the contract disputes act by plaintiffs MEMORANDUM by federal defendants Regulations Pertaining to Contract Performance and Concessioner Choice Violate the 1998 ACT REPLY by federal defendants to response in opposition to motion to dismiss by federal defendants, motion for summary judgment by federal defendants MEMORANDUM AND ORDER by Judge Royce C. Lamberth granting motion for DELAWARE NORTH PARK SERVICES to intervene in 1:00-cv-02937 and 1:00-cv-02885 MOTION filed by intervenor-defendant DELAWARE NORTH PARK SERVICES to dismiss complaint REPLY by plaintiffs in support of joint motion for partial summary judgment, on the grounds that the provisions of the NPS Solicitations and Regulations Pertaining to Contract Performance and Concessioner Choice Violate the 1998 ACT, and other claims MOTION filed by plaintiff AMF AC RESORTS, L.L.C for preliminary injunction DATE 5/23/01 5/23/01 5/23/01 6/25/01 6/27/01 6/26/01 6/28/01 81 105 109 112 53 4 DATE 7/2/01 DOCKET ENTRY MEMORANDUM OPINION by Judge Royce C. Lamberth ORDER by Judge Royce C. Lamberth: granting in part, denying in part motion to dismiss complaint; granting in part and denying in part joint motion for partial summary judgment, on the grounds that Pertaining to Contract Performance and Concessioner Choice Violate the 1998 ACT ADMINISTRATIVE RECORD by federal defendant JUDGMENT by Judge Royce C. Lamberth: judgment is entered in favor of defendants and these cases are dismissed with prejudice MOTION filed by plaintiff AMFAC RESORTS, L.L.C for injunctive relief pending appeal MEMORANDUM by plaintiff AMFAC RESORTS, L.L.C in support of motion for an injunction pending appeal 7/2/01 7/5/01 [following entry in Docket in 00-2885] NOTICE OF APPEAL by plaintiff NATIONAL PARK in 1:00-cv-02885 from judgment order entered on 6/25/01. [following entries inserted from Docket in 00-2838] 6/27/01 111 MOTION filed by plaintiffs for an injunction pending appeal 5 # DOCKET ENTRY 115 MEMORANDUM by federal defendants in opposition to plaintiffs’ motions for injunct i 119 MEMORANDUM by intervenor- defendant DE NORTH PARKS Svc in opposition to motion for an injunction pending appeal 114. ORDER by Judge Royce C. Lamberth denying motions for injunctions pending appeal and related procedural motions 6 APPENDIX B UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 01-5223, 01- 5226, 01- 5229, 01- 5233 AMFAC RESORTS, L.L.C. £7 AL. Appellants, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., Appellees RELEVANT DOCKET ENTRIES’ 6/29/01 CIVIL-US CASE docketed. Notice of Appeal filed by Appellant Amfac Resorts. 7/10/01 PER CURIAM ORDER filed, on the court’s own motion, that Nos. 01-5223 and 01-5226 be consolidated 7/10/01 MOTION lodged by Appellant Amfac Resorts for injunction pending appeal 7/10/01 MOTION filed by Appellant Amfac Resorts to expedite briefing schedule, and to accelerate the date for oral argument "For the Court’s convenience, the docket entries set forth " below have been revised and reworded to reflect more accurately and clearly the actual entries contained in the lower court’s docket. 7/10/01 7/10/01 7/11/01 7/16/01 7/16/01 T/17/01 7/17/01 7/19/01 7/23/01 8/20/01 8/20/01 8/20/01 7 MOTION filed by Appellant National Park Hospitality Association for injunction pending appeal [missing from docket sheet] MOTION filed by Appellam National Park Hospitality Association to expedite briefing schedule, and to accelerate the date for oral argument [missing from docket sheet] PER CURIAM ORDER filed, on the court’s own motion, that Nos. 01-5223, et al. and 01- 5229 be consolidated OPPOSITION filed by Appellee Delaware North Park Services to motions for injunction pending appeal OPPOSITION filed by federal appellees to motions for injunction pending appeal REPLY filed by Appellant Amfac Resorts in support of motion for injunction pending appeal REPLY filed by Appellant National Park Hospitality Association in support of motion for injunction pending appeal [missing from docket sheet] PER CURIAM ORDER filed denying motions for injunction pending appeal and granting motions for expedited briefing and oral argument CLERK’S ORDER filed consolidating No. 01- 5233 with No 01-5223, et al. BRIEF filed by Appellant Amfac Resorts, et al. ADDENDUM TO BRIEF filed by Appellant Amfac Resorts, et al. APPENDIX filed by Appellant Amfac Resorts, 9/19/01 9/19/01 10/3/01 11/6/01 3/1/02 3/1/02 3/1/02 4/15/02 5/8/02 5/8/02 5/28/02 8/12/02 et al. BRIEF filed by Federa! Appellees DOI, et al., Non-Federal Appellee Delaware North Parks Sve, Inc. in 01-5223, et al. STATUTORY AND REGULATORY APPENDIX filed by Appellees DOI, et al., in Nos. 01-5223, et al. REPLY BRIEF filed by Appellants Amfac Resorts, et al., in Nos. 01-5223, et al. ORAL ARGUMENT HELD before Randolph, Garland, Williams. JUDGMENT affirming in part, reversing in part and vacating in part for the reasons in the accompanying opinion. Before Judges Randolph, Garland, Williams. OPINION filed for the Court by Judge Randolph CLERK’S ORDER filed The Clerk is directed to withhold issuance of the mandate pending disposition of any timely petition for rehearing. PETITION for rehearing & PETITION for rehearing en banc filed by Appellants PER CURIAM ORDER, in Banc, filed denying suggestion rehearing en banc PER CURIAM ORDER filed denying petition rehearing MANDATE ISSUED to Clerk, District Court NOTICE filed by Clerk, Supreme Court advising of the filing on 8/6/02 and docketing on 8/8/02 of a petition for writ of certiorari. Supreme Court Docket No. 02-196. 11/15/02 9 NOTICE filed by Clerk, Supreme Court advising of the entry of an order on 11/12/02, granting the petition for writ of certiorari. Supreme Court Docket No. 02-196. 10 APPENDIX C UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [CAPTION OMITTED} COMPLAINT , The National Park Hospitality Association (“NPHA”), for its Complaint against the United States Department of the Interior, Secretary of the Interior Bruce Babbitt, and Director the National Park Service Robert G. Stanton, avers as fol- Ows: INTRODUCTION 1. This Complaint results from the latest a t Department of the Interior’s National Park aa retary of the Interior, and the Director of the National Park Service (collectively the “NPS”) to deprive the concessioners who operate the public concession services in this country’s national parks of their contractual, statutory, and constitu- tional nights, centrary to Congress’s expressed intent and the = interest in promoting the development of park conces- ions. 2. The NPS has arbitrarily, capriciously, and interpreted the National Park Service ow aso: ment Improvement Act of 1998 (“1998 Act”), included as sections 401-419 of the National Parks Omnibus Manage- ment Act of 1998, Pub. L. No. 105-391, 112 Stat. 3497 (Nov 13, 1998) (codified with irrelevant exceptions at 16 US.C §§ 5951-5966), so as to deprive concessioners of their con- tractual, statutory and constitutional nights. 11 3. The NPS’s erroneous interpretations of the 1998 Act were first embodied in its final regulations interpreting that statute, see “Concession Contracts,” 65 Fed. Reg. 20630 (Apr. 17, 2000), 36 C.F.R. pt. 51 (the “Regulations”), which ignored the plain terms of the 1998 Act and the objections raised by the NPHA and others during the rulemaking proc- ess. Based on these unlawful Regulations, the NPS pub- lished a model “Standard Concession Contract,” see 65 Fed Reg. 26052 (May 4, 2000) (the “Standard Concession Con- tract”), and-has now commenced issuing prospectuses for new contract opportunities identical to that model. 4. The NPHA and its members object to key provisions of the prospectuses issued by the defendants, and to the Stan- dard Concession Contract and Regulations on which they are based. 5. The regulations, Standard Concession Contract, and issued prospectuses clearly indicate that the NPS intends: (i) arbitrarily, capriciously, and unlaw- fully to choose new or replacement concessioners by denying many incumbents the contractual nghts to preferential renewal that- Congress specifically protected in the 1998 Act; by defining all renewal preferences too narrowly; and by inappropriately weighing certain factors for the selection of the best bid to the detriment of other, statutorily mandated, criteria. (ii) arbitrarily, capriciously, and unlaw- fully to circumscribe how it will interact with con- cessioners during their contracts by denying concessioners their statutory right to the protections of the Contract Disputes Act; by mandating unau- thorized arbitration for disputes between the NPS and concessioners; by denying concessioners the right to encumber their investments to fund further development within the National Park system and to 12 refinance existing debt; by denying concessioners the night to engage in corporate control transactions without the approval of the NPS; and by retaining ro ability unilaterally to change many contract (ii) arbitrarily, capriciously, and unlaw- fully to determine what payments concessioners are entitled to receive after a concession contract ex- pires by undervaluing the concessioners’ “leasehold surrender interests” and by denying them immediate compensation for those interests when they are dis- placed upon the expiration of a concession contract. The NPS is thus engaged in an illegal plan to deprive concessioners of their contractual, statutory, and constitu- tional rights. 6. The NPS ’s attempt to expand its authority at the ex- pense of concessioners would significantly increase the cost of running concessions and make the operation of conces- sions a much less desirable business. Accordingly, it would harm the millions of Americans who rely on concessioners to provide affordable services in the country’s national parks and would thwart Congress’s clear and oft-stated intention to put park concessions on a more “business-like” footing. ; 7. This Court should therefore declare the Re invalid to the extent that they violate msm ith wate tual, statutory, or constitutional rights, and enjoin the NPS from issuing any new prospectuses (based on the Standard Concession Contract or otherwise) that infringe on the rights of concessioners. Injunctive and declaratory relief is neces- sary to prevent the NPS from continuing its efforts to obtain, through unauthorized and unlawful regulations, prospectuses and contracts, restrictions on concessioners that are arbitrary and capricious, contrary to statutory requirements, and pre- cluded by contract. 13 JURISDICTION AND VENUE 8. Jurisdiction in this Court is proper under 28 U.S.C. §§ 1331, 1346, 1361, 1491(b)(1), 2201, and 2202, and under 5 U.S.C. § 702. 9. Venue in this District is proper under 28 U.S.C. § 1391(b) and (e). PARTIES 10. Plaintiff National Park Hospitality Association (NPHA), which was originally formed as an unincorporated association called the Western Conference of National Park Concessioners in 1929, is a non-profit trade association in- corporated in the Commonwealth of Virginia. The goal of the NPHA is to enhance the experience of visitors to our na- tional parks by focusing on issues of common concern, such as the quality of visitor services and facilities and the rela- tionship between concessioners and the NPS. This has been accomplished both by encouraging cooperative projects with the NPS and by interacting with Congress and other govern- mental agencies on legislative initiatives to improve the visi- tor experience, conserve important park resources and protect the rights of Americans to visit and enjoy their national parks. With over 150 members, the NPHA represents the vast majority of park concessioners, both large and small, that provide service through concession contracts with the NPS. The NPHA has standing to challenge the Regulations, Stan- dard Concession Contract and prospectuses. See Hunt v. Washington Apple Advertising Comm., 432 U.S. 333, 334 (1977). It is an association that exists to represent its mem- bers in the regulatory context; its members are suffering im- minent harm because, among other things, their bidding strategies for the prospectuses that the NPS has issued de- pend on the outcome of this litigation; and there is no need for an individualized remedy where, as here, only declaratory and injunctive relief is sought. 14 11. Defendant United States Department of the Interior is an agency of the United States. The National Park Service is a part of the Department of the Interior. 12. Defendant Bruce Babbitt is Secretary of the Interior and is sued in his official capacity. 13. Defendant Robert G. Stanton is the Director of the National Park Service and is sued in his official capacity. Mr. Stanton is the federal officer personally responsible for compliance with laws relating to the issuance of concession contracts. BACKGROUND Concessions In The National Park System 14. As set forth by Congress in 16 U.S.C. § 1, the funda- mental purpose of the National Park system is: to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. . 15. “Provid[ing] for the enjoyment” of the national parks In most cases requires visitor service facilities — including lodges, restaurants, and retail outlets — and typically includes constructing, cleaning, and repairing those commercial estab- anon Throughout its history the NPS has relied primar- ily on private contractors to buil intai facilities. tt iaaaacataaae 16. The first director of the NPS recognized that “{h]otel operators and restauranteurs * * * were reluctant to build fa- cilities and conduct operations in parks that were relatively inaccessible to most Americans.” He therefore “lured these businesses into parks by offering them contractual incen- tives” to counterbalance these extremely risky and frequently harsh business conditions. See National Park Service, “Con- 15 cessions Reform” (available at http://www.nps.gov/pub_aff/- issues/concess.html) (attached as Exhibit 1). Among other incentives that the NPS has used and continues to use are awarding exclusive concessions, granting preferential nghts of renewal, and guaranteeing concessioners that they will re- coup the capital investments they make if their concessions are not renewed. In exchange, concessioners agree, among other things, to return an agreed-upon portion of gross reve- nues to the government and to make specified capital com- mitments to improve national park visitor facilities. The Concessions Policy Act Of 1965 17. Although in 1998 Congress repealed the Concessions Policy Act of 1965 (the “1965 Act”), Pub. L. 89-249, 79 Stat. 969 (Oct. 9, 1965), formerly codified at 16 U.S.C. §§ 20-20g, almost all concessioners are currently operating un- der contracts that were issued pursuant to the 1965 Act and that embody 1965 Act policies and practices. The savings clause of the legislation that repealed the 1965 Act, see infra 4 25, provides that these contracts remains valid and enforce- able. 18. The 1965 Act was designed to encourage concession- ers to make necessary capital investments in national park facilities without diverting financial resources from the gov- ernment. It protected concessioners from arbitrary NPS ac- tion by codifying the previous NPS practice of giving concessioners (i) a compensable property interest in capital projects and (ii) a right of preference in the renewal of con- cession contracts. Based on these two primary incentives, concessioners invested hundreds of millions of dollars in park facilities to serve the public. It is unlikely that conces- sioners would have been willing to make these investments if the 1965 Act had not been passed and these incentives not been given the force of law; indeed, concessioners had previ- ously slowed their capital programs in reaction to legal ques- tions raised about the validity of these nghts. 16 19. The 1965 Act explicitly recognized concessioners’ property rights in the facilities constructed during the course of a concession contract by codifying a federal right called ee uanicnars’ “posssssory interest” thet hed been 2 fee- y concession contracts since the 1940’s. 6 of the 1965 Act states: a A concess:omer who * * * acquires or constructs pursuant .» a contract and with the approval of the Secretary, any structure, fixture, or improvement upon land owned by the United States within an area administered by the National Park Service shall have a possessory interest therein, which shall con- sist of all incidents of ownership except legal ti- tle***. The said possessory interest shall not be extinguished by the expiration or other termination of the contract and may not be taken for public use without just compensation. 16 U.S.C. § 206. _ 20. Congress also defined the exact method of valuing this possessory interest, assuring that the concessioner would receive protection for the “sound value” of its interest. The 1965 Act defined “sound value” by explicit reference to the “reconstruction cost” of the facilities, rather than their lower replacement cost. bid. 21. Section 5 of the 1965 Act mandated that concession- ers be given a “right of preference” in the renewal of their concession contracts: The Secretary shall encourage continuity of opera- tion and facilities and services by giving preference in the renewal of contracts or permits and in the ne- gotiation of new contracts or permits to the conces- sioners who have performed their obligations under prior contracts or permits to the satisfaction of the Secretary. 17 16 U.S.C. § 20d. 22. These statutorily-required, contractual rights of re- newal were critical to the decision of many concessioners to bid on concessions contracts and to invest in facilities devel- opment within the National Park system. The Concessions Management Improvement Act Of 1998 23. Concerned with the NPS’s management of the con- cessions program and other factors, Congress passed the 1998 Act on October 14, 1998, which President Clinton signed on November 13, 1998. The 1998 Act sought to fur- ther the mission of the national park system, by protecting the parks for the future while at the same time accommodat- ing the need of users of the parks to have appropriate facili- ties and services. See 1998 Act § 402, 16 U.S.C. § 5951. 24. The 1998 Act governs the entire concessions contract process, from delineating the factors that confine the NPS’s choice of concessioner at the outset to ensuring that conces- sioners’ rights are protected when a contract expires. 25. The 1998 Act replaced the 1965 Act, which as a gen- eral matter was repealed. See 1998 Act § 415(a), 16 U.S.C. § 20 note. The 1998 Act specifically includes a savings clause, however, which provides: The repeal of [the 1965 Act] shall not affect the va- lidity of any concessions contract or perm# entered into under such Act, but the provisions of [the 1998 Act] shall apply to any such contract or permit ex- cept to the extent such provisions are inconsistent with the terms and conditions of any such contract or permit. ; Ibid. 26. Thus, the 1998 Act protects the fundamental nights that were guaranteed to concessioners under the 1965 Act and under contracts issued pursuant to the 1965 Act. In par- 18 ticular, the savings clause makes the 1998 Act inapplicable eh einen grnaiane an tana istent with the terms of any * * * contract” issued pursuan 1965 Act. Ibid. — The Regulations And Model “Standard Concession Con- tract” 27. The NPS promulgated draft regulations i lementing the 1998 Act on June 30, 1999, and issued a draft Standard Concession Contract (that it represented would form the basis for future contracts) on September 3, 1999. In response to extensive commentary by the NPHA and others, the NPS modified both documents in some respects, but refused to address many of their most serious flaws. The final versions of the Regulations and model contract were published in April and May 2000, respectively. See 4 3, supra. 28. In the guise of “interpreting” the 1998 Act, the NPS adopted untenable positions on a number of issues critical to the concessions industry (see 4] 38-102, infra) including persisting in following policies that Congress considered and rejected in enacting the 1998 Act. The NPS’s attempt to ex- pand Its power over concessioners and ignore their vested nights will harm not just current concessioners, but also fu- The Hamilton Stores Prospectus . 29. On October 2, 2000, almost five months lishing the Standard Conlon Gunmen, G0 108 heute Sat crn Proapectas soliciting bids under the 1998 Act agency's implementing Regulations . That prospec- tus, Contract No. CC-Yell002-70 (the “Hamilton Stores Pro- spectus”) (attached as Exhibit 2), covers the Yellowstone National Park general stores and food services concession currently served by Hamilton Stores, Inc. Hamilton Stores, which is a member of the NPHA, is operating these facilities under a contract issued pursuant to the 1965 Act and has per- 19 formed all of its requirements under that contract satisfacto- rily. 30. The contract required by the Hamilton Stores Pro- spectus is in all relevant respects identical to the final Stan- dard Concession Contract. Like the Regulations and Standard Concession Contract, it contains numerous illegal provisions, in violation of Hamilton Stores’ current contract and the 1998 Act, that would deprive Hamilton Stores of its rights and would force it and any other bidder to agree to il- legal and unfair terms in order to obtain the concession. The Antelope Point Prospectus 31. On October 23, 2000, the NPS issued a second pro- spectus under the 1998 Act, for a new concession operation to be conducted at Antelope Point in the Glen Canyon Na- tional Recreation Area (the “Antelope Point Prospectus,” Contract No. CC-GLCA007-01, attached as Exhibit 3). Be- cause this prospectus is for a new facility there is no provi- sion for an incumbent concessioner’s renewal rights, nor for the calculation of that incumbent’s possessory interest. In all other relevant respects, however, the Antelope Point Prospec- tus is identical to the Hamilton Stores Prospectus and the Standard Concession Contract, and is thus further confirma- tion of the NPS’s decision systematically to undermine the rights of concessioners. Future 1998 Act Prospectuses 32. Based on the Regulations, Standard Concession Con- tract, Hamilton Stores Prospectus, and Antelope Point Pro- spectus, the NPS has made clear that no future prospectuses will honor concessioners’ contractual preferential nights of renewal. The NPS has also made clear that all new prospec- tuses will violate a substantial number of concessioners’ other rights, as well as the clear terms of the 1998 Act. 33. At least one concessioner has therefore brought litiga- tion challenging the Regulations and Standard Concession 20 Contract and seeking to obtain injunctive relief barring the issuance of a new prospectus for a specific concession. See Amfac Resorts, L.L.C. v. U.S. Dept. of the Interior, No. 1:98CV01734; Amfac Resorts, L.L.C. v. U.S. Dept. of the In- terior, No. 1:00CV02838. 34. The NPHA, as the association representing almost all concessioners, seeks similar relief that would be more gener- ally applicable to all concessioners and all prospectuses. Given the harm that the NPS’s interpretation is causing con- cessioners, no good reason exists for further delay before challenging the NPS’s unlawful interpretation of the 1998 Act and of contracts issued pursuant to the 1965 Act. SPECIFIC ALLEGATIONS 35. The NPHA’s specific chall cover many aspects of tes sitetionthlp bebwemn conseedlanan ond too YE toe rules by which new concessioners will be chosen, the rules governing how such concessioners will be treated during the period of concessions contracts (which rules will materially impact what concessioners will bid on such contracts), and the rules governing how incumbent concessioners’ posses- sory interests or leasehold surrender interests will be calcu- lated and when those interests will be paid to incumbents. 36. The Regulations, as well as the contractual implemen- tation of those Regulations as evidenced by the Standard Concession Contract and the Hamilton Stores and Antelope Point Prospectuses, violate the 1998 Act in numerous ways as delineated below. In addition, the Regulations, both on their face and as applied, invade existing contractual rights of incumbent concessioners preserved by the 1998 Act. They are thus arbitrary, capricious, an abuse of the agency’s dis- cretion, and otherwise unlawful. 37. The Standard Concession Contract and the Hamilton Stores and Antelope Point Prospectuses also violate the 1998 Act, and among other things deny Hamilton Stores and other 21 incumbent concessioners the preferential right of renewal that they are entitled to by law. Thus, the Standard Conces- sion Contract and all current and future NPS prospectuses based on it are arbitrary, capricious, an abuse of the agency’s discretion, and otherwise unlawful. *“** OPERATION OF CONTRACTS 61. In its Regulations, Standard Concession Contract, and Hamilton Stores and Antelope Point Prospectuses the NPS has imposed improper conditions on the performance of con- cession contracts and on the avenues through which disputes concerning those contracts must be resolved. These final agency actions are arbitrary, capricious, and contrary to law. 62. The manner in which the NPS deals with its conces- sioners is a significant factor in how much concessioners (whether incumbent or otherwise) will bid for concessions contracts. This Court should therefore declare the Regula- tions to be arbitrary, capricious, and unlawful and enjoin the NPS from issuing new prospectuses that would operate under this scheme. Applicability Of The Contract Disputes Act 63. The NPS has decreed that “[c]oncession contracts are not contracts within the meaning of * * * the Contract Dis- putes Act [41 U.S.C. § 601 ef seg. (“CDA”)].” 31 C.F.R. § 51.3. There is no basis for this attempt to exempt conces- sions contracts from the CDA, thus rendering the Regulations arbitrary, capricious, and contrary to the terms of the CDA. 64. The CDA applies to “any express or implied contract * ** entered into by an executive agency for (1) the pro- curement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construc- tion, alteration, repair or maintenance of real property; or (4) the disposal of personal property.” 41 U.S.C. § 602(a). 22 65. The CDA creates fair dispute resolution procedure for contracts with federal agencies. Among other soniiaiie the CDA mandates that certain agency decisions about con- tracts be appealable to the Court of Federal Claims, 41 U.S.C. § 609(a)(1), which must review questions of law de novo, 41 U.S.C. § 609(a)(3). 66. Concessions contracts under the 1998 Act are covered by the CDA. The CDA applies “notwithstanding any con- tract provision, regulation, or rule of law to the contrary.” 4] U.S.C. § 609(a)(1). The NPS is contracting to procure the provision of services by concessioners, to guarantee the availability of lodging, food and other amenities within the National Park system. The NPS also is procuring the mainte- pera ~ property, because the concessioner does not ac- € to any structure it creates on Nati lands under a 1998 Act contract. a St concessions contracts where the NPS chooses to require the concessioner to make significant capital improvements, the NPS is procuring the “construction, alteration, repair or maintenance” of that property. _ 67. The applicability of the CDA to concession contracts is important to concessioners because NPS concession con- tracts are of lengthy duration, often require significant up- front financial commitments, and by their terms provide the agency with broad unilateral discretion to alter many of those contracts over time. The unlawful decision by the NPS to exempt itself from the CDA is thus of great impor- tance to the contract solicitation process. ** * INJUNCTIVE RELIEF 103. The NPHA is entitled to preliminary injunctive re- lief because it can show a likelihood of success on the merits, and both the public interest and a balancing of the potential 23 harms weigh in favor of preserving the status quo and pre- venting the NPS’s unlawful implementation of the 1998 Act. 104. The NPHA is also entitled to injunctive relief be- cause there is no adequate legal remedy for the claims as- serted herein. Unless enjoined preliminarily and permanently, defendants’ actions and conduct will bring ir- reparable harm to the NPHA’s members as potential bidders and existing concessioners whose preferential rights of re- newal and other legal rights are being illegally frustrated by unlawful government agency action. The NPS’s final actions ~ as set forth in the Regulations, Standard Concession Con- tract, Hamilton Stores Prospectus, and Antelope Point Pro- spectus — will also injure the public’s interest in an orderly continuation of services in the country’s national parks. 105. To preserve the rights of concessioners and the public interest, the Court should permanently enjoin the NPS from issuing prospectuses that fail to recognize incumbent concessioners’ preferential right of renewal and that embody the arbitrary, capricious, and otherwise illegal policies and provisions described above. COUNT I (The Regulations Violate The Administrative Procedure Act) 106. Paragraphs 1-105 are incorporated herein as if set forth in full. 107. Under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., a reviewing court has a duty to “hold unlawful and set aside” agency action found to be any of the follow- ing: (1) “arbitrary, capricious, an abuse of discretion, or oth- erwise not in accordance with law;” (2) “contrary to constitutional right, power, privilege, or immunity;” (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and (4) “unsupported by substantial evidence.” 5 U.S.C. § 706(2). 24 108. The NPS’s “Concession Contracts” Regulations 65 Fed. Reg. 20630 (Apr. 17, 2000), 36 C.F.R. pt. 51, must be held unlawful and set aside because they violate the 1998 Act, the ADRA, the CDA, and other Statutory mandates in the numerous ways delineated above. COUNT II (The Standard Concession Contract Violates The Admin- istrative Procedure Act) 109. Paragraphs 1-105 are incorporated herein as i forth in full. nen 110. Under the Administrative Procedure Act, 5 U.S.C. § 551 ef seq., a reviewing court has a duty to “hold unlawful and set aside” agency action found to be any of the follow- ing: ( 1) “arbitrary, capricious, an abuse of discretion, or oth- erwise not in accordance with law;” (2) “contrary to constitutional right, power, privilege, or immunity;” (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and (4) “unsupported by substantial evidence.” 5 U.S.C. § 706(2). 111. The Standard Concession Contract is plainly in- tended by the NPS to embody the exact terms and conditions of future prospectuses under the 1998 Act. Not only is the Standard Concession Contract consistent with the Regula- tions, but the Hamilton Stores Prospectus and Antelope Point Prospectus are also in all relevant respects identical to Standard Concession Contract. - 112. The Standard Concession Contract must be held unlawful and set aside, because (as delineated above) it con- tains numerous terms that violate the 1998 Act, the 1965 Act, other statutory mandates, and contractual obligations of the agency under its existing contracts with concessioners. 25 COUNT Ill (The Standard Concession Contract Violates The Tucker Act) 113. Paragraphs 1-105 are incorporated herein as if set forth in full. 114. Under the Tucker Act, 28 U.S.C. § 1491, a review- ing court has a duty to “afford any relief that the court con- siders proper, including declaratory and injunctive relief except that monetary relief shall be limited to bid preparation and proposal costs” (28 U.S.C. § 1491(b)(2)), if agency ac- tion related to the “solicitation * * * for bids or proposals for a proposed contract or to the award of a contract or any al- leged violation of statute or regulation in connection with a procurement or a proposed procurement” (28 U.S.C. § 1491(b)(1)) is found to be any of the following: (1) “arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law;” (2) “contrary to constitutional right, power, privilege, or immunity;” (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and (4) “unsupported by substantial evidence” (28 U.S.C. § 1491(b)(4) (incorporating the APA standard)). 115. The Standard Concession Contract is plainly in- tended by the NPS to embody the exact terms and conditions of future prospectuses under the 1998 Act. Not only is the Standard Concession Contract consistent with the Regula- tions, but the Hamilton Stores Prospectus and Antelope Point Prospectus are also in all relevant respects identical to the Standard Concession Contract. 116. The Standard Concession Contract must be held unlawful and set aside, because (as delineated above) it con- tains numerous terms that violate the 1998 Act, the 1965 Act, other statutory mandates, and contractual obligations of the agency under its existing contracts with concessioners. *** 26 RELIEF REQUESTED WHEREFORE, for the foregoing reasons, plaintiff re- quests that the Court: A. Enter preliminary injunctive relief pending final reso- lution of this matter barring the defendants, their officers, employees and agents, from implementing or enforcing any of the unlawful aspects of 36 C.F.R. pt. 51 and of the Stan- dard Concession Contract, and in particular barring them from proceeding with the Hamilton Stores and Antelope Point Prospectuses. B. Grant a preliminary and permanent injunction enjoin- ing defendants from issuing new prospectuses that infringe on the nights of incumbent concessioners in any of the ways described in this Complaint. C. Enter a declaratory judgment that defendants’ prom- ulgation of 36 C.F.R. pt. 51, the Standard Concession Con- tract, the Hamilton Stores Prospectus, and the Antelope Point Prospectus were in the respects described above arbitrary, capricious, contrary to constitutional right, pow r, privilege or immunity, in excess of statutory jurisdiction, authority or limitations, contrary to concession contracting laws and regu- lations including but not limited to the 1998 Act, an abuse of discretion, and otherwise not in accordance with law. D. Enjoin the defendants to develop a constitutional pro- cedure for the appeal from determinations of whether a con- cessioner’s performance was satisfactory. E. Order such other and further relief as the Court deems appropriate. 27 Respectfully submitted, /s/ Kenneth S. Geller (DC Bar # 401130) David M. Gossett (DC Bar # 468390) MAYER, BROWN & PLATT 1909 K Street, NW Washington, DC 20006 Tel: 202-263-3000 Fax: 202-263-3300 Counsel for Plaintiff National Park Hospitality Association Dated: December 1, 2000 28 APPENDIX D SUPREME COURT OF THE UNITED STATES No. 02-196 NATIONAL PARK HOSPITALITY ASSOCIATION, Petitioner, Vv. UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL. , Respondents. November 12, 2002 The petition for a writ of certiorari is granted. 29 APPENDIX E PROSPECTUS Accommodations, Facilities and Services, South Rim, Grand Canyon National Park National Park Service [This table of contents has been added to indicate which sec- tions of the Prospectus are included in this Joint Appendix, and on which page each included section starts] Page pe 32 SUMMARY OF BUSINESS OPPORTUNITY .......... omitted ED GP EOIN © ccsccscceccsscscccsscscecssscsnscesnsscssens 37 THE PARK AREA AND ITS MISSION................:ccceccee00+ 49 CONTRACT TICE snsnedstesetiieneninastanasimninel 64 EXHIBITS , A. Leasehold Surrender Interest................. omitted B. Operating Plan Supplements ............. selections included, at 117 C. Nondiscrimination.................:0ccseeeees omitted D. Land and Assignments .............-..--:+-0+++ omitted E. Government Personal Property eee omitted Fe ee omitted G. Initial Leasehold Surrender Interest ......omitted H. Maintenance Plan Supplement.............. omitted FF Qa omitted J. Historic Personal Property................-..-: omitted PROPOSAL INSTRUCTIONG.............:ccccccceseeeeeereeeees omitted i A 6 selections included, at 121 30 Page APPENDICES 1. National Park Service and Its Mission; Concession Program Management........................ 137 2. Public Law 105-391 Title IV: National Park Service Concessions Management Improvement Act Of 1998. .00............:ccccceseeceeee omitted 3. 36 CFR, Part 51: Concession Management i icenncncctensenticiaiiiiiiinitiinemaaitel omitted 4. 2001 NPS Management Policies, Chapter 10: Commercial Visitor Services.....................-.- selections included, at 153 eB Ce tretcincnrrnsensiintsisadnimenmneiaiial omitted 6. 2000 Approved Rates ..0..0...........ccccecseeseecenseees omitted 7. Sample Operating Schedule ...........................- omitted 8. Concessioner’s Financial Information............. omitted EN omitted 10. Agreement for Determining the Value of the Possessory Interest in Certain Improvements under NPS Concession Contract No. CC- GRCA001-69; Statement of Value................. omitted 11. Reclaimed Water Agreement .......................... omitted 12. Changes in Insurance Requirements. .............. omitted Fa COUR CIID siennsinatetenataniiliinenbcatiietngipadmanagia omitted 14. Personal Property List. ..................-cseccsessessenee omitted 15. Underground Storage Tanks.........................-+. omitted 16. Grand Canyon Project Review Process; Grand Canyon National Park Construction PIII ssictasntniishinieeiiteininnstinapiitatientioniingaiiaaaumssasiial omitted Uae Sa EEEE Unhnelaihieiihiiieidiserilliapainsenibiicnadiiatitainpanntaias omitted 18. Tank Project Check List...............c.ccsessesseseesees omitted 19. Draft Grand Canyon National Park Government Housing Policy Statement .......... omitted 31 Page 20. Grand Canyon Hazardous Waste Management TI snentnreninrninsiennnitnimalmaaetinaitapinaennncemenenmemensd omitted 21. Community Recreation Center Special Use TTI dornsenspeiennnmpeunianemuameneeeanenemennnens omitted 22. Special Rules for Management and Operation of Concessioner Operated Trailer Villages .....omitted 23. Grand Canyon National Park map brochures and newspapet ................c-00se+see00 omitted [Prospectus begins on next page] 32 33 PROSPECTUS THE PARK AREA AND ITS MISSION South Rim Accommodations, Facilities and Services DESCRIPTION OF PARK CC-GRCA001-01 Park Headquarters Location Table of Contents Legislated Purpose and Significance of Park a; Compliance with Federal, State, and Local Laws and SUMMARY OF BUSINESS OPPORTUNITY Park lariediction BUSINESS OPPORTUNITY Fue Fretectien Park Management Structure ee ea cg Park Interpretive Themes and Goals t Season ae PARK PLANNING DOCUMENTS AND PLANNED The Current Contract Facilities IMPROVEMENTS THE BUSINESS TO BE OPERATED PARK MANAGEMENT OBJECTIVES FOR CON- Facilities and Services at Beginning of Contract CN San VELES Basic Financial Information CONTRACT FUTURE OPERATIONS Building & Improvement Program DRAFT CONTRACT Project Costs EXHIBITS Transportation A. Leasehold Surrender Interest Bavicumentel Management B. Operating Plan Supplements ouaees C. Nondiscrimination PROPERTY OWNERSHIP AND PURCHASE D. Land and Assignments Personal Property . E. Government Personal Property Assigned Real Property F. Project Procedures Estimates of Value G. Initial Leasehold Surrender Interest FRANCHISE FEES H. Maintenance Plan Supplement I. Insurance SITE VISITS J. Historic Personal Property 34 PROPOSAL INSTRUCTIONS Response Period for Submission of Proposal Form in Which Proposal Must be Submitted Where and How to Submit a Proposal Proposals may be Considered Public Documents Questions Standards for Evaluation of Proposals and Selection Right of Preference and Preferred Offeror Determinations Congressional Review Cautions to Offerors about Submission and Evaluation of Proposals PROPOSAL PACKAGE PROPOSAL LETTER CERTIFICATE OF CORPORATE OFFEROR PART A FACTORS AND REQUIREMENTS | PART B FACTORS AND QUESTIONS Principal factor 1. The responsiveness of the Pro- posal to the objectives, as described in the prospectus, of protecting, conserving and pre- serving resources of the park area. Principal factor 2. The responsiveness of the Pro- posal to the objectives, as described in the prospectus, of providing necessary and appro- priate visitor services at reasonable rates. Principal factor 3. The experience and related back- ground of the Offeror, including the past per- formance and expertise of the offeror in providing the same or similar visitor services as those to be provided under the concession contract. Principal factor 4. The financial capability of the Of- feror to carry out its proposal. 35 Principal factor 5. The amount of the proposed minimum franchise fee, if any, and/or other forms of financial consideration to the Direc- tor (However, consideration of revenue to the United States will be subordinate to the objec- tives of protecting, conserving, and preserving resources of the park area and of providing necessary and appropriate visitor services to the public at reasonable rates.) SECONDARY SELECTION FACTORS Secondary factor 1. The quality of the Offeror’s pro- posal to conduct its operations in a manner that furthers the protection, conservation and preservation of park area and other resources through environmental management programs and activities, including, without limitation, energy conservation, waste reduction, and re- cycling. Secondary factor 2. The quality of the Offeror’s pro- posal to provide needed employee housing and to adaptively convert existing housing to guest lodging. Secondary factor 3. The quality of the Offeror’s pro- posal to conduct its hiring, training and reten- tion program for employees in such a way that furthers its ability to provide exemplary cus- tomer service beyond the basic requirements of the draft contract. APPENDICES 1. National Park Service and Its Mission; Concession Program Management 36 Public Law 105-391 Title IV: National Park Service Concessions Management Improvement Act of 1998. 36 CFR, Part 51: Concession Management Regula- tions. 2001 NPS Management Policies, Chapter 10: Com- mercial Visitor Services. Park Visitation 2000 Approved Rates Sample Operating Schedule Concessioner’s Financial Information Existing Contract Agreement for Determining the Value of the Posses- sory Interest in Certain Improvements under NPS Concession Contract No. CC-GRCA001-69; State- ment of Value . Reclaimed Water Agreement Changes in Insurance Requirements. . Utility Expense Personal Property List. . Underground Storage Tanks . Grand Canyon Project Review Process; Grand Can- yon National Park Construction Policies . XXX form Tank Project Check List Draft Grand Canyon National Park Government Housing Policy Statement Grand Canyon Hazardous Waste Management Plan . Community Recreation Center Special Use Permit . Special Rules for Management and Operation of Concessioner Operated Trailer Villages . Grand Canyon National Park map brochures and newspaper 37 BUSINESS OPPORTUNITY South Rim Accommodations, Facilities and Services CC-GRCA001-01 This Prospectus describes the existing business and the busi- ness opportunity to operate Accommodations, Facilities and Services on the South Rim and at Phantom Ranch in Grand Canyon National Park in general terms. Potential Offerors are responsible for reviewing all sections of this prospectus and specifically the terms and conditions of the attached Draft Contract, including its exhibits, to determine the full scope of a concessioner’s responsibilities under the new con- tract. All interested parties must apply using the guidelines in the Proposal Instructions and Package. CURRENT OPERATIONS All facilities and services to be authorized by the National Park Service (NPS) under this contract are located on the South Rim of Grand Canyon National Park. Grand Canyon National Park is a World Heritage Site. Grand Canyon National Park attracts 4.5 to 4.9 million visi- tors a year, with most visitation occurring from March to Oc- tober. Visitation ranges from over 150,000 to 650,000 per month. Approximately 40% of the park’s visitors are from outside the United States, from locations around the world. The National Park Service has determined that certain visitor services and facilities are necessary and appropriate to en- hance visitors’ enjoyment of the park, while ensuring that resources are protected. A number of major concession con- tracts currently exist in Grand Canyon National Park, of which this is the largest: ° Amfac Resorts, LLC, dba Grand Canyon National Park Lodges, provides overnight lodging, food ser- vice, transportation, gift shops, public showers, public 38 laundries, kennels, a service station and mule opera- tions on the South Rim and at Phantom Ranch. ° TW Recreational Services, Inc., a subsidiary of Am- fac Parks and Resorts, Inc., provides overnight lodg- ing, food service and gift shops on the North Rim. ° Delaware North Parks Services operates Canyon Vil- lage Marketplace, a general store including groceries, camping supplies and deli, on the South Rim. ° Verkamps, Inc. provides a gift shop on the South Rim. ° Grand Canyon Trail Rides provides guided mule and horse rides on and from the North Rim. ° A number of concessioners provide guided river run- ning trips on the Colorado River. In addition, approximately 350 operators provide road tours, guided backpacking, guided day hikes, outfitting, locksmith services and horseback rides under other authorizations. Staffing at Peak Season ° National Park Service staff consists of approximately 325 full-time employees, and 100 less-than-full-time and seasonal employees. ° Amfac Resorts, LLC, dba Grand Canyon National Park Lodges, has approximately 900 full-time staff and 300 seasonal employees. ° In total, approximately 2500 people live year-round, and another 1000 live seasonally, on the South Rim of the Grand Canyon. In addition, about 500 more people live in the gateway community of Tusayan. National Park Service and Amfac Resorts, LLC administra- tive offices are located on the South Rim of Grand Canyon National Park. Year-round services include a K-12 school, medical clinic, post office, bank, general store, church, day care and recreation center. 39 Many permanent employees reside in the village year-round. Housing in gateway communities is extremely limited. The closest communities with viable housing markets are Wil- liams, Arizona, 60 miles away, and Flagstaff, Arizona, 85 miles away. The Current Contract The current contract expires on December 31, 2001. The Di- rector, pursuant to 36 CFR Part 51, has determined that this is not a qualified concession contract, because it is antici- pated that receipts in the first year of the new contract will exceed $500,000, and the new concession contract will not solely authorize or require guide services. Therefore no pre- ferred Offeror for this contract exists. Facilities The condition of the facilities varies. Additional employee housing is a critical need. The Exhibits to the Draft Contract, which are part of this document, describe the buildings and land assigned and the trails to be used. The new concessioner will be assigned lands and facilities in Grand Canyon National Park necessary for the operation, and will be required to maintain the lands and facilities in a man- ner acceptable to the NPS. Specific operating and mainte- nance requirements are detailed in the Operating and Maintenance Plans, Exhibits B and H to the Draft Contract. THE BUSINESS TO BE OPERATED This business operates facilities and services for visitors to Grand Canyon National Park, principally at three developed areas along the South Rim: Hermits Rest, Grand Canyon Village, and Desert View. It also provides facilities and ser- vices at Phantom Ranch, near the Colorado River. This business also includes transportation services and mule liv- ery. 40 Most of the facilities are open 7 days a week, 12 months a year. A. Facilities and Services at Beginning of Contract 1. Overnight Accommodations Numberof Lodging Type Rooms E! Tovar Hotel 78 Deluxe hotel rooms Kachina/Thunderbird Lodges 104 Deluxe motel rooms . Bright Angel Complex 39 Rustic rooms Bucky/Powell Motel (with and without bath) Historic cabins 35 Mid-scale cabins Rim Cabins 15 Deluxe cabins Maswik Complex Maswik Lodge North 160 Mid-scale motel rooms Maswik Lodge South 90 Economy motel rooms Maswik Quad Cabins 28 Economy cabins Yavapai Complex Yavapai East 198 Mid-scale motel rooms Yavapai West 160 Economy motel rooms Phantom Ranch Cabins without bath 11 Rustic cabins Dormitories (10-person, 4 Rustic dormitories same gender occupancy) Rustic rooms and cabins are adequately furnished to com- plement their historic role in park accommodations. They have bathrooms & showers located in close proximity. Some may have private bathrooms. Economy Rooms and Cabins are adequately furnished with average quality motel furnishings to complement park themes. They have private bathrooms. Mid-scale accommodations are adequately furnished with above average furnishings to complement park themes. All 4] accommodations in this price range have private bathrooms. Daily housekeeping service is provided. Deluxe accommodations are located in or near full service hotels or lodges and are adequately furnished with the high- est quality resort-type furnishings to complement park themes. They may have small refrigerators, fireplaces or sit- ting rooms. Daily housekeeping service and special ameni- ties are provided. 2. Food and Beverage Service a. Food Service E! Tovar Hotel 250 B,L,D Gourmet/Fine Dining Restaurant Arizona Room 120 L,D Dinner Only Bright Angel 120 B,L,D Full Service Cof- Dining fee Shop Bright Angel 0 Snacks Limited Snack Fountain Bar Maswik Cafete- 395 B,L,D Cafeteria ria Yavapai Cafete- 475 B,L,D Cafeteria ria Phantom Ranch 44 B,D,box Rustic Family lunches Service Desert View 30 B,L,D Snack Bar Trading Post Hermits Rest 0 Snacks Limited Snack Bar b. Lounge Service © El Tovar Hotel 72 seats e Arizona Steakhouse 20 seats e Bright Angel Lodge 80 seats © Maswik Lodge 78 seats c. Transportation/Visitor Information Desks -- Bright Angel Lodge -- Yavapai Lodge -- Maswik Lodge 42 General Merchandise El Tovar Gift Shop and News Stand Bright Angel Lodge Gift Shop Maswik Lodge Gift Shop Yavapai Lodge Gift Shop Desert View Trading Post Gift Shop Desert View Watchtower Gift Shop Hermits Rest Gift Shop Lookout Studio Gift Shop Hopi House Gift Shop Sgr eer Services Scheduled In-Park Bus Tours (to sunset when Transportation Contract is implemented) Step-on Guide Services (to sunset when Transporta- tion Contract is implemented) 24-hour Taxi Service Automobile Services Desert View Service Station 24-hour Tiltbed Towing Service with road-side re- pair service 24-hour Credit Card fueling access at Desert View Service Station Mule Operations Plateau Point Mule Rides Phantom Ranch Mule Rides Transport of soft-sided luggage to and from Phan- tom Ranch (Duffel Service) Emergency evacuation of visitors Sen the inner canyon by mule (Dragout Service) Kennels for cats and dogs (may sunset when the Trans- portation Contract is implemented) Camper Services Laundromat 43 © Showers 9. Trailer Village © RV campground — 70 sites © Long term Trailer Village for NPS, Concession and Cooperator Employees only — 86 sites ~ © Long term Trailer Village for NPS, Concession and Cooperator Employees only at Pinyon Park — 39 sites 10. Off-site Reservation System for all applicable services. This system will utilize a toll-free number. 11. Other Vending (as defined by NPS) Interpretive Programs Concierge Services Pay Phones 12. Support Services e Employee Housing and Meals © Employee Shuttle © Community Services Basic Financial Information Approved rates for 2000 are located in Appendix 6. Rates to the public are subject to approval by the National Park Ser- vice, under 16 U.S.C. 5955. Rates may be changed at the request of the concessioner subject to approval by NPS under 16 U.S.C 5955. Historically, this business has been consistent from year to year in its reported revenue. Further financial information and use rates are available in Appendix 8, Financial Informa- tion. The Proposal Package requires Offerors to develop financial projections based upon the business to be operated and the projects required. Offerors should be appropriately cautious in the use of historical information. The National Park Ser- 4a vice will not provide financial predictions; therefore, Offer- ors are responsible for producing their own pro forma finan- cial statements and relying on their own financial predictions. FUTURE OPERATIONS In August of 1995, the National Park Service completed a new General Management Plan for Grand Canyon National Park. This plan outlines significant changes that will im- prove and enhance visitors’ enjoyment as well as their under- standing of this spectacular environment. Such changes are both physical and philosophical. During the term of this con- tract, some of these changes will be implemented, and the concessioner’s operations will be affected accordingly. ¢ Day visitors will enter and move about the Grand Canyon Village Area by means of new transportation and trail systems. Private vehicles will continue to be permitted on East Rim Drive and at Desert View. © The anticipated implementation date for the transporta- tion service change is January |, 2004. . © A Heritage Education Campus will be established in the powerhouse area of the historic South Rim village. The concessioner will vacate its currently occupied historic structures in the heart of Grand Canyon Village, and will renovate and relocate its warehousing and maintenance functions to a complex that presently houses the park’s .NPS Maintenance shops, after the NPS completes con- struction of its new maintenance buildings (est. comple- tion date 12/31/02). At that time, the fueling tanks currently owned by the NPS and used by the conces- sioner will be assigned to the concessioner. At any time after December 31, 2004, the National Park Ser- vice may withdraw transportation and kennel services from this Contract and compete them as a separate business oppor- tunity. 45 Copies of the Grand Canyon General Management Plan are available on the Internet at http://www.nps.gov/grca/gmp/- index.htm. In addition, in its reservation system, the concessioner will implement a toll-free number. All reservation services, group sales and marketing operations will be located outside the park. Building and Improvement Program Particular projects are identified in Section 9 of the Draft Contract, including the timing and anticipated expenditures of each project. Each project is subject to environmental and cultural compliance. Some facilities changes at the South Rim called for by the General Management Plan will also be realized through the requirements listed in Section 9 of this Draft Contract. Project costs The projects identified here in general terms represent the greater part of an Improvement Program to be carried out by the concessioner and estimated by the NPS to total approxi- mately $8.5 million. Each Offeror should make its own de- terminations as to the probable cost of implementing the construction requirements identified in the Improvement Pro- gram in Section 9 of the Draft Contract. The estimate prepared by the NPS is a “Class C” conceptual cost estimate based on square foot costs of similar construc- tion, or on identifiable known unit costs of similar construc- tion items. Class C estimates are usually prepared before a fully defined scope of work has been developed. They con- sider such factors as job location, unusual site conditions, sources of materials and supplies, and the availability and skills of local labor pools. Class C estimates are used to es- tablish a logical expectation of the costs associated with a 46 future project by assessing the known costs of similar past projects. Transportation This Draft Contract prohibits the practice of using park lands as a base of operations for transportation services conducted outside the park, as was done in the past. Taxi service will be permitted to serve Tusayan as well as areas within the South Rim. Environmental Management The new concessioner will develop, document, implement, and comply fully with a comprehensive written Environ- mental Management Program (EMP) to achieve Environ- mental Management Objectives. The initial EMP shall be developed and submitted to the Director for approval within sixty days of the effective date of the contract. A proposed updated EMP will be submitted for approval annually. (See Draft Contract, Section 6). The annual EMP will describe how the concessioner will comply with the EMP and how the concessioner will self— assess its performance under the EMP. The self-assessment should ensure the concessioner’s conformance with the Envi- ronmental Management Objectives and measure performance against environmental goals and targets. The EMP shall also describe procedures to be taken by the concessioner to cor- rect any deficiencies identified by the self-assessment. Utilities Water, sewage disposal, solid waste removal and recycling are provided by the park. The NPS charges the concessioner for these services. All other utilities are provided directly by utility companies. 47 PROPERTY OWNERSHIP AND PURCHASE The existing concessioner has, under the terms of its existing contract, certain rights to monetary compensation in the event it is not selected as the new concessioner for the new concession contract. This compensation relates to possessory interest in real prop- erty improvements and to personal property of the existing concessioner, or both. The compensation for possessory in- terest has been fixed at $165,000,000 through binding arbitration. It is the obligation of any Offeror selected as a new conces- sioner to pay the $165,000,000 possessory interest compen- sation to the existing concessioner in accordance with the terms of the existing contract. The existing contract is found in Appendix 9. In light of the fact that the value of the pos- sessory interest has been determined through binding arbitra- tion, the new concessioner will be required to compensate the existing concessioner for its possessory interest no later than December 31, 2001. | Personal Property Any Offeror that is selected as the new concessioner is obliged to purchase certain personal property of the current concessioner, under the provisions of the existing contract, which is included in Appendix 9. Offerors are solely responsible for ascertaining the personal property which must be purchased and its condition. The purchase price of personal property must be estimated by the offeror. The fact that the final purchase price may be greater than estimated by an offeror will not be grounds for adjust- ment of the terms of the contract or other relief to the new concessioner. 48 Estimate of Value The value of the existing concessioner’s personal property and equipment is estimated by the NPS to be approximately $9,000,000. EFFECTIVE DATE OF NEW CONTRACT The effective date of the new contract will be January |, 2002. FRANCHISE FEES The minimum franchise fee for the new contract is 3.8% of annual gross receipts. However, Offerors may propose a higher minimum franchise fee in accordance with the terms of the prospectus. SITE VISITS If an on-site tour of the facilities is desired, it will be con- ducted on May 15, 2001. Such requests should be directed to Ms. Laura Shearin no later than May 1, 2001: (520) 226- 0169. Refer to Appendix | for an explanation of the NPS conces- sion management system and practices. 49 THE PARK AREA AND ITS MISSION South Rim Accommodations, Facilities & Services CC-GRCA001-01 DESCRIPTION OF PARK Grand Canyon National Park is located in the northwest cor- ner of the State of Arizona in Coconino County, encompass- ing approximately 1,218,375 acres of public land on the southern end of the Colorado Plateau. Its scenic vistas attract visitors from all over the world. A 277-mile stretch of the Colorado River runs through the park. The exposed geologic strata of the canyon rise over a mile above the river, providing one of the world’s most com- plete records of geological history. The elevational diversity of Grand Canyon results in signifi- cant climatic variations and biological diversity, reflected in life zones ranging from the arid lower Sonoran Desert to those typical of forested regions in Canada. Steep canyon walls admit limited sunshine to the canyon’s floor during the winter, giving cold nights and cool days. Spring and fall fea- ture cool nights and mild days. Summer nights are warm, while days are hot, usually well over 100 degrees Fahrenheit. Except for seasonal thunderstorms, usually in July and Au- gust, the area is very dry. Snowfall is occasionally recorded in the winter. | The South Rim of the Grand Canyon attracts visitors year- round, although most visitation occurs from March to Octo- ber. Visitors to the Grand Canyon come from all over the world, with substantial numbers of visitors from Japan, Ger- many, and France. Almost five million recreational visits are recorded in the park each year, primarily on the South Rim. The public has traditionally used the park for sightseeing, hiking, river raft- ing, camping, touring, and general recreation. The scientific 50 community has also utilized the park extensively for many fields of research. In recognition of its globally significant values, Grand Can- yon National Park has been designated as a World Heritage Site. Park Headquarters Location Park Headquarters is located in the community of Grand Canyon, Arizona, on the park’s South Rim, 60 miles west of Cameron, Arizona, via Arizona State Route 64; 60 miles north of Williams, Arizona, via Arizona State Route 64; and 85 miles northwest of Flagstaff, Arizona, via U.S. Highway 180. Legislated Purpose and Significance of Park On January 11, 1908, President Theodore Roosevelt reserved land in the Grand Canyon of Arizona as the Grand Canyon National Monument by presidential proclamation. In his proclamation, President Roosevelt stated that the Grand Can- yon of Arizona “is an object of unusual scientific interest, being the greatest eroded canyon in the United States, and it appears that the public interest would be promoted by reserv- ing it as a National Monument” (Proclamation No. 794). On February 26, 1919, Congress dedicated and set apart Grand Canyon National Park “as a public park for the benefit and enjoyment of the people” (Grand Canyon National Park Establishment Act, 40 Stat 1175). Over the years the park has been enlarged and its boundaries revised, most recently on January 3, 1975, when Congress recognized “that the entire Grand Canywn, from the mouth of the Paria River to the Grand Wash Cliffs, including tributary side canyons and surrounding plateaus, is a natural feature of national and international significance” (Grand Canyon Na- tional Park Enlargement Act, Public Law 93-620). In this act, Congress also recognized the need for “further protection and 51 interpretation of the Grand Canyon in accordance with its true significance.” These legislative statements, in addition to the NPS Organic Act, as amended, effectively provide the foundation upon which park management is based. Management seeks to pro- tect the natural and cultural resources of the park, while pro- viding for “the benefit and enjoyment of the people” through resource-based interpretive programs and appropriate public and concessions facilities. Compliance with Federal, State, and Local Laws and Park Jurisdiction Grand Canyon National Park operates under the jurisdiction of the federal government. The park has concurrent jurisdic- tion with the State of Arizona. Law enforcement is conducted by National Park Service (NPS) Rangers holding federal law enforcement commis- sions. These officers enforce Federal and state laws through the Act of June 25, 1948, the Assimilative Crimes Act. County and state law enforcement officers enter the park to enforce local and state law. The park has a memorandum of understanding, describing these law enforcement and mutual aid relationships, with the neighboring police department Public health codes are prescribed by the United States Pub- lic Health Service (USPHS), and inspections are conducted in accordance with those codes. The USPHS inspects and supervises the operation of the park’s water supply and sew- age disposal systems. National building codes apply to all construction and reha- bilitation projects, except where state code is more stringent, in which case state code is applied. Construction may be un- dertaken only after the NPS issues a letter or permit to pro- ceed and approves the plans involved. 52 Although operations are conducted on federal property, the concessioner is subject to state and local laws and ordinances in the same manner as if it operated outside of the federal holding. Business permits normally required must be se- ~ cured, and taxes normally payable must be paid. Fire Protection Fire protection is provided to in-park structures by a volun- teer fire department composed of NPS, concessioner and co- operator members under NPS direction. Amfac Resorts, LLC has maintained its own fire engine as part of that system. Grand Canyon National Park and Amfac Resorts, LLC work together to provide fire suppression to park structures. Park Management Structure Grand Canyon National Park is administered by its Superin- tendent, who is assisted by a staff of approximately 325 per- manent and 100 seasonal personnel. Many issues can be reviewed and decided at the park level; others, however, require review and/or approval at the re- gional or Washington level, and some require a process of public review prior to decision. The Superintendent manages the total park operation, includ- ing concession operations. The Superintendent carries out the policies and directives of the NPS, including management of concessioners. Through NPS representatives, the Superinten- dent reviews, supervises, and coordinates concession activi- ties related to Grand Canyon National Park. Monitoring concession contract compliance includes over- sight of all aspects of the concessioner’s activities, including, without limitation, evaluating all concession operations and services, reviewing business operations, reviewing and au- thorizing all rates and operating seasons/hours, improve- ments to facilities, and construction. 53 The Management Assistant coordinates legislative and con- gressional affairs, partnerships and public affairs. The Public Information Officer, who works for the Management Assis- tant, coordinates public affairs, special events, VIP visits, in- formational briefings, and directs the park’s commercial filming program. Both coordinate activities directly with the Concessioner. The Chief, Concessions Program Management, (Chief) coor- dinates the functions of other NPS divisions relating to con- cession operations. The Chief makes recommendations on all aspects of the Concessioner’s operation to the Superinten- dent. The Chief ensures necessary evaluations and inspec- tions are performed, including those required by the United States Public Health Service (USPHS), Park Risk Manage- ment Officer, Structural Fire Program, Environmental Man- agement Program and the Concessioner Review Program. The Chief ensures all Concessioner rates are approved based upon current comparability studies or applicable guidelines. The Chief acts as liaison between the Concessioner and Su- perintendent. To support the Chief, Concessions Program Management, Concessions Management Specialists review and coordinate the Concessioner’s day-to-day activities. They develop pro- spectuses and contracts. They review and evaluate opera- tional and maintenance activities; rate, service, and schedule changes; equal employment opportunity and affirmative ac- tion plans; advertisements; construction proposals; environ- mental management; annual financial reports; insurance coverage; and any other contract requirements. The Park Sanitarian monitors food and beverage services, grocery stores, solid waste disposal, water, and waste water systems to ensure adherence to all applicable public health standards. 54 The Deputy Superintendent supervises and manages the functions of all divisions except concessions, as they relate to the overall park operation. The Park Risk Management Officer monitors the Conces- sioner’s Risk Management Program to ensure it meets all ap- plicable standards, and conducts an annual review of the Risk Management program. The Chief Ranger initiates, reviews, supervises, and coordi- nates the activities of personnel who provide visitor protec- tion functions. District Rangers and Branch Chiefs serve as the direct line of communication to the Concessioner on matters related to fire management, law enforcement, risk management, prescribed fire, search and rescue, emergency medical services and re- source protection. Division personnel may assist with con-. cession operational evaluations and critical item follow-ups. The Chief of Interpretation acts on behalf of the Superinten- dent in matters pertaining to interpretation and environmental _education. The Interpretive Division works with the Conces- sions Management Division to evaluate/monitor and provide training as appropriate to Concessioner interpretive activities. The Chief of Maintenance and Engineering acts on behalf of the Superintendent in matters pertaining to maintenance and supervises the activities of facility managers. The Chief of Maintenance acts on behalf of the Superintendent in matters pertaining to compliance with Applicable Environmental Laws. Facility Managers and Maintenance Supervisors provide day- to-day supervision over all maintenance activities and opera- tions, including utilities and hazard tree mitigation. They serve as the direct line of communications to the Conces- sioner on routine maintenance matters. 55 The Park Architect works directly with the Concessioner on historic preservation, rehabilitation of historic structures and all other construction/design/compliance matters in the park. The Director of the Science Center acts on behalf of the Su- perintendent in all matters pertaining to natural and cultural resources management such as air quality monitoring, vegetation management, fish and wildlife management, etc. The Park Compliance Officer works directly with the Con- cessioner to ensure compliance with natural, cultural and re- source protection requirements. The Park Curator serves as direct line of communication to the Concessioner about care, treatment and preservation of historic furnishings, decorative arts, etc. The Chief of Administration acts on behalf of the Superin- tendent in matters related to fiscal management associated with the Concessioner activities, including billing for pay- ment of franchise fees, utilities, lease fees, quarters rental, and personal services provided by the NPS to the Conces- sioner. The Implementation Team Manager acts on behalf of the Su- perintendent in all matters pertaining to implementation of the General Management Plan, which includes scheduling, planning, review of site plans, design, construction, razing of buildings and restoration. The Team Manager has direct communication with the Concessioner on these matters. Park Interpretive Themes and Goals The mission of interpretation is to increase visitor under- standing and appreciation of the significance of park re- sources. Interpretive services provide opportunities for people to forge their own intellectual and emotional connec- tions to the ideas and meanings inherent in the resources of the park. 56 It is the goal of interpretation that park visitors and the gen- eral public understand and appreciate the preservation of parks and their resources for this and future generations. Primary Parkwide Interpretive Themes for Grand Canyon National Park A. The immense and colorful Grand Canyon is valued worldwide as one of Earth’s most powerful and inspiring scenic landscapes, offering people enriching opportuni- ties to explore and experience its wild beauty in both vast and intimate spaces. B. Water is the lifeblood of Grand Canyon—a force of ero- sion, a sustainer of scarce riparian habitat in a desert en- vironment, a spiritual element for native peoples, a provider of recreation, and a central factor in the explora- tion, development, and politics of the American West. C. The Colorado River and erosional forces sculpted the southern edge of the Colorado Plateau to form the Grand Canyon, revealing a beautiful sequence of rock layers that serve as windows into time. D. Extreme changes in elevation, exposure, and climate in the Grand Canyon support a remarkable range of biotic communities in unusual proximity; a relatively undis- turbed ecosystem that allows natural processes to con- tinue, providing sanctuary for present and future life. E. Grand Canyon remains a homeland and a sacred place to a number of American Indian cultures, a point of emer- gence to some, offering us an opportunity to consider the powerful and spiritual ties between people and place. F. Grand Canyon has sustained people materially and spiri- tually for thousands of years—wider recognition of its value led to its designation as a national park and world heritage site; however, continuing threats to its preserva- 57 tion generate dialogue about our need and responsibility to conserve our local and global environment. PARK PLANNING DOCUMENTS AND PLANNED IMPROVEMENTS. Recognizing that increasing visitation was producing strains on park infrastructure and resources, the National Park Ser- vice finalized a General Management Plan for Grand Canyon National Park in 1995. This plan is available in its entirety at http://www.nps.gov/grca/gmp/index.htm. In its objectives for Grand Canyon National Park, the Gen- eral Management Plan listed the following as desired condi- tions to be achieved: International Significance © Manage the park to preserve its integrity as a world heri- tage site with natural and cultural resources of national and international significance. Natural and Cultural Resources ° Preserve, protect, and interpret the park’s natural and scenic resources and values, and its ecological processes. © Preserve, manage, and interpret park cultural resources (archeological, ethnographic, architectural, and historic resources, trails, and cultural landscapes) for the benefit of present and future generations. © Preserve, protect, and improve air quality and related val- ues such as visibility. © Manage visitor use, development, and support services to protect the park’s resources and values. © Preserve and protect the genetic integrity and species composition within the park, consistent with natural eco- system processes. ¢ To the maximum extent possible, restore altered ecosys- tems to their natural conditions. In managing naturalized ecosystems, ensure the preservation of native components 58 through the active management of nonnative components and processes. Manage ecosystems to preserve critical processes and linkages that ensure the preservation of rare, endemic, and specially protected (threatened/endangered) plant and animal species. Protect the natural quiet and solitude of the park, and mitigate or eliminate the effects of activities causing ex- cessive or unnecessary noise in, over, or adjacent to the park. Preserve natural spring and stream flows and water qual- ity. Withdraw only the minimum water necessary to meet park purposes. To the maximum extent feasible, strive to meet increases in water demand by conserving and reus- ing water. Provide opportunities for scientific study and research focused on the Grand Canyon, consistent with resource protection and park purposes. Inventory, monitor, and maintain data on park natural and cultural resources and values, and utilize this information in the most effective ways possible to facilitate park management decisions to better preserve the park. Clearly delineate and maintain the park boundary to pro- tect park resources and values. Identify and evaluate all cultural properties within the park for inclusion on the National Register of Historic Places. Collect ethnographic data and develop ethnohistories for the Havasupai, Hopi, Hualapai, Navajo, Southern Paiute, and Zuni peoples concerning their associations with the Grand Canyon, as appropriate, in order to preserve, pro- tect, and interpret park resources and values important to diverse American Indian cultures, including significant, 59 Wilderness and Wild River Management Manage areas meeting the criteria for wilderness designa- tion as wilderness. Actively pursue the designation of these lands as part of the national wilderness preservation system. Manage the Colorado River corridor through Grand Can- yon National Park to protect and preserve the resource in a wild and primitive condition. Actively pursue the des- ignation of eligible segments of the Colorado River and its tributaries as part of the national wild and scenic rivers system. Visitor Experience Provide a diverse range of quality visitor experiences, as appropriate, based on the resources and values of the Grand Canyon, compatible with the protection of those resources and values. Provide access that is appropriate and consistent with the character and nature of each landscape unit and the de- sired visitor experience. Consistent with park purposes and the characteristics of each landscape unit, preserve and protect the maximum opportunities in every landscape unit of the park for visi- tors to experience the solitude, natural conditions, primi- tiveness, remoteness, and inspirational value of the Grand Canyon. Provide equal access to programs, activities, experiences, and recreational opportunities for individuals with dis- abilities, as appropriate and consistent with the levels of development and inherent levels of access in areas within the park. Provide a wide range of interpretive opportunities and information services to best assist, inform, educate, and challenge visitors. 60 © Educate and influence the public through positive action to preserve and protect the world they live in, including but not limited to the park. © Provide a safe, efficient, and environmentally sensitive transportation system for visitors, employees, and resi- dents, consistent with management zoning and resource considerations. Emphasize nonmotorized modes of trans- portation wherever feasible. © Develop visitor use management strategies to enhance the visitor experience while minimizing crowding, conflicts, and resource impacts. © Provide visitor and employee facilities and services, as necessary and appropriate, in or adjacent to areas dedi- cated to those uses or in appropriate disturbed areas. Facility Design * Consistent with its purpose, strive to make Grand Canyon National Park a model of excellence in sustainable design and management through such means as energy effi- ciency, conservation, compatibility with historic setting and architecture, recycling, accessibility, and the use of alternative energy sources. ¢ Encourage appropriate use and adaptive reuse of historic structures, while preserving historic integrity. ¢ Ensure that development and facilities within the park are necessary for park purposes. ° Design high-quality facilities that exemplify visual con- sistency and appropriateness. ¢ Ensure that park developments and operations do not ad- versely affect park resources and environments, except where absolutely necessary to provide reasonable visitor access and experiences. Regional Issues ° Understand, assess, and consider the effects of park deci- sions Outside the park as well as inside. 61 © Upon request, work cooperatively to assist local Ameri- can Indians in planning, developing, and managing lands adjoining the park in a mutually compatible manner. © Work cooperatively with appropriate entities to encour- age compatible, aesthetic, and planned development and recreational opportunities outside park boundaries, and to provide information, orientation, and services to visitors. © Carry the NPS concern for the environment beyond the boundaries of the park, including the protection of park resources and values from external influences. South Rim Management Objectives The South Rim is considered to be bounded on the west by Hermits Rest, on the east by Desert View, on the north by the canyon rim, and on the south by the park boundary. The fol- lowing objectives for the South Rim are in addition to the overall park objectives. Visitor Experience _ @ Identify and develop an appropriate range of visitor ex- periences, opportunities, and access that will accommo- date a variety of visitor expectations, abilities, and commitment levels. © Provide viewing opportunities of the canyon, access to views and trails, and interpretation and information, rec- ognizing that these are the most important elements of the visitor experience on the South Rim. ® Maintain the South Rim from Hermits Rest to Desert View as the focus for the majority of visitor use in the park, including major visitor facilities and accommoda- tions. Cultural Resources © Utilize the extensive cultural resources of the South Rim as a strong component of the interpretive program, in- cluding the interpretation of American Indian cultures. 62 Development © Develop and promote the use of foot trails, bicycle paths, and public transportation to provide convenient and effi- cient movement of visitors, employees, and residents within Grand Canyon Village and between major points of interest. ¢ Maintain and enhance the meandering, rural character of West Rim and East Rim Drives, including the feeling that one is removed from the developments of Grand Canyon Village and Desert View. Maintain the existing large un- disturbed areas along West Rim Drive. Significant Changes Proposed in the General Manage- ment Plan Substantial changes in the transportation system were pro- posed. Although vehicle restrictions are planned, no limit on the number of visitors is anticipated for the life of the Gen- eral Management Plan (to the year 2010). The General Management Plan proposes the following changes for the South Rim of Grand Canyon National Park: ¢ A transit system will provide transportation for all day visitors to the village area of the South Rim of the Grand Canyon within the term of this contract. Overnight visi- tors to lodges on the South Rim (except for Yavapai) will park at the Maswik Transportation Center and be shuttled to their lodges. Yavapai overnight visitors will park in the Yavapai area. ¢ A new visitor information center—the Canyon View In- formation Plaza—opened in the fall of 2000, and will be a primary hub for the transit system. © In addition to the expanded transit system, a greenway trail system for pedestrians and bicyclists is proposed from Hermits Rest to Desert View and from the Canyon View Information Plaza to Tusayan. 63 ¢ The National Park Service will build a new warehouse and maintenance facility for its operations. This project has an estimated completion date of 11/1/02. Administra- tive and maintenance facilities for the South Rim conces- sioner will then be relocated to the current National Park Service facilities. © A “Heritage Education Center” will be established in the historic district, using the historic powerhouse, mule barn, laundry, and other buildings. Five dormitories lo- cated in the Village area may be converted to economy lodging. PARK MANAGEMENT OBJECTIVES FOR CONCES- SION SERVICES The need for commercial visitor services in Grand Canyon National Park is based on objectives for visitor use described in law, planning documents that exist for the park, and the judgment of management considering the way the park is currently used and the present objectives of the NPS. The NPS has determined that the facilities and services that are called for in this Prospectus are necessary and appropriate to the purposes of Grand Canyon National Park. 64 UNITED STATES DEPARTMENT OF THE INTERIOR NATIONAL PARK SERVICE Grand Canyon National Park South Rim Accommodations, Facilities and Services CONCESSION CONTRACT NUMBER CC-GRCA001-01 [Name of Concessioner] [Address, including email address and phone number] Doing Business As Covering the Period January 1, 2002 through December 31, 2011 CONCESSION CONTRACT TABLE OF CONTENTS IDENTIFICATION OF THE PARTIES SEC.1 TERM OF CONTRACT SEC.2 DEFINITIONS SEC.3 SERVICES AND OPERATIONS Required and Authorized Visitor Services Operation and Quality of Operation Operating Plan Merchandise and Services Rates Impartiality as to Rates and Services me aoe SEC. 4. SEC. 5. SEC. 6. SEC. 7 SEC. 8. 65 CONCESSIONER PERSONNEL a. Employees b. Employee Housing and Recreation LEGAL, REGULATORY, AND POLICY COMPLIANCE a. Legal, Regulatory, and Policy Compliance b. Notice c. How and Where to Send Notice ENVIRONMENTAL AND CULTURAL PRO- TECTION a. Environmental Management Objectives b. Environmental Management Program c. Environmental Management Measurement d. Environmental Data, Reports, Notifications, and Approvals e. Corrective Action f. Indemnification and Cost Recovery for Con- cessioner Environmental Activities g. Weed and Pest Management h. Protection of Cultural and Archaeological Re- sources INTERPRETATION OF AREA RESOURCES a. Concessioner Obligations b. Director Review of Content CONCESSION FACILITIES USED IN OP- ERATION BY CONCESSIONER Assignment of Concession Facilities Concession Facilities Withdrawals Effect of Withdrawal Right of Entry Personal Property and Historic Personal Prop- erty Condition of Concession Facilities Utilities Provided by the Director Utilities Not Provided by the Director eno op pao SEC. 9. SEC. 10. SEC. 11. SEC. 12. SEC. 13 SEC. 14. SEC. 15 66 CONSTRUCTION OR INSTALLATION OF REAL PROPERTY IMPROVEMENTS a. Construction of Real Property Improvements b. Removal of Real Property Improvements c. Leasehold Surrender Interest d. Concession Facilities Improvement Program MAINTENANCE a. Maintenance Obligation b. Maintenance Plan c. Repair and Maintenance Reserve d. General Maintenance Reserve FEES a. Franchise Fee b. Payments Due c. Interest d. Adjustment of Franchise Fee INDEMNIFICATION AND INSURANCE a. Indemnification b. Insurance in General c. Commercial Public Liability d. Property Insurance BONDS AND LIENS a. Bonds b. Lien ACCOUNTING RECORDS AND REPORTS a. Accounting System b. Annual Financial Report c. Other Financial Reports OTHER REPORTING REQUIREMENTS a. Insurance Certification b. Environmental Reporting c. Miscellaneous Reports and Data. SEC. 16. SEC. 17. SEC. 18. SEC. 19. 67 SUSPENSION, TERMINATION, OR EXPI- RATION Suspension Termination Notice of Bankruptcy or Insolvency Requirements in the Event of Termination or Expiration COMPENSATION a. Just Compensation b. Compensation for Contract Expiration or Termination c. Procedures for Establishing the Value of a Leasehold Surrender Interest d. Compensation for Personal Property e. Compensation for Historic Personal Property ASSIGNMENT, SALE OR ENCUMBRANCE OF INTERESTS GENERAL PROVISIONS ar oP EXHIBITS EXHIBIT A: Leasehold Surrender Interest EXHIBIT B: Operating Plan EXHIBIT C: Nondiscrimination. EXHIBIT D: Assigned Land, Real Property Improvements EXHIBIT E: Assigned Government Personal Property and Historic Personal Property EXHIBIT F: Concessioner Construction, Major Rehabilita- tion, and Repair and Maintenance Project Pro- cedures EXHIBIT G: Leasehold Surrender Interest EXHIBIT H: Mainterance Plan EXHIBIT I: Insurance Requirements EXHIBIT J: Historic Personal Property 68 [CORPORATION] THIS CONTRACT is made and entered into by and between the United States of America, acting in this matter by the Di- rector of the National Park Service, through the Regional Di- rector of the Intermountain Region, (hereinafter referred to as the “Director”), and , a corporation or- ganized and existing under the laws of the State of ( hereinafter referred to as the “Conces- sioner”): [PARTNERSHIP] THIS CONTRACT is made and entered into by and between the United States of America, acting in this matter by the Di- rector of the National Park Service, through the Regional Di- rector of the Intermountain Region, hereinafter referred to as the “Director”, and __, a partnership organized under the laws of the State of , hereinafter re- ferred to as the “Concessioner”: [SOLE PROPRIETORSHIP] THIS CONTRACT made and entered into by and between the United States of America, acting in this matter by the Di- rector of the National Park Service, through the Regional Di- rector of the Intermountain Region, hereinafter referred to as the “Director,” and, , an individual, doing business as __, hereinafter referred to as the “Concessioner”: WITNESSET H: THAT WHEREAS, Grand Canyon National Park is admin- istered by the Director as a unit of the National Park System to conserve the scenery and the natural and historic objects and the wildlife therein, and to provide for the public enjoy- ment of the same in such manner as will leave such Area un- impaired for the enjoyment of future generations; and 69 WHEREAS, to accomplish these purposes, the Director has determined that certain visitor services are necessary and ap- propriate for the public use and enjoyment of the Area and should be provided for the public visiting the Area; and WHEREAS, the Director desires the Concessioner to estab- lish and operate these visitor services at reasonable rates un- der the supervision and regulation of the Director; and WHEREAS, the Director desires the Concessioner to con- duct these visitor services in a manner that demonstrates sound environmental management, stewardship, and leader- ship; NOW, THEREFORE, pursuant to the authority contained in the Acts of August 25, 1916 (16 U.S.C. 1, 2-4), and No- vember 13, 1998 (Public Law 105-391), and other laws that supplement and amend the Acts, the Director and the Con- cessioner agree as follows: SEC. 1. TERM OF CONTRACT This Concession Contract No. CC-GRCA001-01 (“CON- TRACT”) shall be effective as of January 1, 2002, and shall be for the term of 10 (ten) years until its expiration on De- cember 31, 2011. SEC. 2. DEFINITIONS The following terms used in this CONTRACT will have the following meanings, which apply to both the singular and the plural forms of the defined terms: (a) “Applicable Laws” means the laws of Congress govern- ing the Area, including, but not limited to, the rules, regula- tions, requirements and policies promulgated under those laws (e.g., 36 CFR Part 51), whether now in force, or amended, enacted or promulgated in the future, including, without limitation, Federal, state and local laws, rules, regu- lations, requirements and policies governing nondiscrimina- 70 tion, protection of the environment and protection of public health and safety. (b) “Area” means the property within the boundaries of Grand Canyon National Park. (c) “Best Management Practices” or “BMPs” are policies and practices that apply the most current and advanced means and technologies available to the Concessioner to un- dertake-and maintain a superior level of environmental per- formance reasonable in light of the circumstances of the operations conducted under this CONTRACT. BMPs are ex- pected to change from time to time as technology evolves with a goal of sustainability of the Concessioner’s operations. Sustainability of operations refers to operations that have a restorative or net positive impact on the environment. (d) “Capital Improvement” shall have the meaning set forth in Exhibit A to this CONTRACT. (e) “Concession Facilities” shall mean all Area lands as- signed to the Concessioner under this CONTRACT and all Real Property improvements assigned to or constructed by the Concessioner under this CONTRACT. The United States retains title and ownership to all Concession Facilities. (f) “Days” shall mean calendar days. (g) “Director” means the Director of the National Park Ser- vice, acting on behalf of the Secretary of the Interior and the United States, and his duly authorized representatives. (h) “Exhibit” or “Exhibits” shall the various exhibits, which are attached to this CONTRACT, each of which is hereby made a part of this CONTRACT. (i) “Gross receipts” means the total amount received or real- ized by, or accruing to, the Concessioner from all sales for cash or credit, of services, accommodations, materials, and other merchandise made pursuant to the nights granted by this CONTRACT, including gross receipts of subconcessioners 71 as herein defined, commissions earned on contracts or agreements with other persons or companies operating in the Area, and gross receipts earned from electronic media sales, but excluding: (1) imtracompany earnings on account of charges to other departments of the operation (such as laundry); (2) charges for employees’ meals, lodgings, and trans- portation; (3) cash discounts on purchases; (4) cash discounts on sales; (5) returned sales and allowances; (6) interest on money loaned or in bank accounts; (7) imcome from investments; (8) 3 from subsidiary companies outside of the Area; (9) sale of property other than that purchased in the regular course of business for the purpose of resale; (10) sales and excise taxes that are added as separate charges to sales prices, gasoline taxes, fishing li- cense fees, and postage stamps, provided that the amount excluded shall not exceed the amount actu- ally due or paid government agencies; (11) receipts from the sale of handicrafts that have been approved for sale by the Director as constituting au- thentic American Indian, Alaskan Native, Native Samoan, or Native Hawaiian handicrafts. All monies paid into coin operated devices, except tele- phones, whether provided by the Concessioner or by others, shall be included in gross receipts. However, only revenues actually received by the Concessioner from coin-operated telephones shall be included in gross receipts. All revenues 72 received from charges for in-room telephone or computer access shall be included in gross receipts. (j) “Gross receipts of subconcessioners” means the total amount received or realized by, or accruing to, subconces- sioners from all sources, as a result of the exercise of the rights conferred by a subconcession contract. A subconces- sioner will report all of its gross receipts to the Concessioner without allowances, exclusions, or deductions of any kind or nature. (k) “Leasehold Surrender Interest” shall have the meaning set forth in Exhibit A to this CONTRACT. (1) “Leasehold Surrender Interest Value” or the “value” of a Leasehold Surrender Interest shall have the meaning set forth in Exhibit A to this CONTRACT. (m) “Major Rehabilitation” shall have the meaning set forth in Exhibit A to this CONTRACT. (n) “Possessory Interest” shall have the meaning set forth in Exhibit A to this CONTRACT. (0) “Real Property Improvements” shall have the meaning set forth in Exhibit A to this CONTRACT. (p) “Historic Personal Property” is certain personal property owned by the Concessioner that is intrinsic to the historic and cultural values of the area and related concession operations. Some items are, in themselves, artistic, historic or cultural artifacts. (q) “Subconcessioner” means a third party that, with the ap- proval of the Director, has been granted by a concessioner rights to operate under a concession contract (or any portion thereof), whether in consideration of a percentage of reve- nues or otherwise. (r) “Superintendent” means the manager of the Area. 73 (s) “Visitor Services” means the accommodations, facilities and services that the Concessioner is required and/or author- ized to provide by Section 3(a) of this CONTRACT. SEC. 3. SERVICES AND OPERATIONS (a) Required and Authorized Visitor Services During the term of this Contract, the Director requires and authorizes the Concessioner to provide the following visitor services for the public within the Area: (1) Required Visitor Services: The Concessioner is required to provide the following visitor services during the term of this Contract: 1. Qvernight Accommodations Numberof Lodging Type Rooms E] Tovar Hotel 78 Deluxe hotel rooms Kachina/Thunderbird Lodges 104 Deluxe motel rooms Bright Angel Complex 39 Rustic rooms Bucky/Powell Motel (with and without bath) Historic cabins 35 Mid-scale cabins Rim Cabins 15 Deluxe cabins Maswik Complex Maswik Lodge North 160 Mid-scale motel rooms Maswik Lodge South 90 Economy motel rooms Maswik Quad Cabins 28 Economy cabins Yavapai Complex Yavapai East 198 Mid-scale motel rooms Yavapai West 160 Economy motel rooms Phantom Ranch Cabins without bath ll Rustic Dormitories (10-person, 4 Rustic same gender occupancy ) 14 73 2. Food and Beverage Service © Hermits Rest Gift Shop a. Food Service a oh © Lookout Studio Gift Shop ElTovarHotel 250 BLD GourmetFine * Hopi House Gift Shop Dining Restaurant 4. Transportation Services —— = > aa © Scheduled Bus Tours — © © oe * Stepon Guide Serves Bright Angel 0 Snacks Limited Snack © 24-hour Taxi Service within South Rim and Fountain Bar Tusayan. ~~. —_ = = — 5. Automobile Services Yavapai Cafe- 475 B,L.D Cafeteria © Desert View Service Station teria . . © 24-hour Tiltbed Towing Service with road-side re- Phantom Ranch 44 — box —* pair service , a © Locksmithing services Desert nack Bar sar and - ne . © 24-hour Credit Card fueling access at Desert View Hermits Rest 0 Snacks Limited Snack , Service Station Bar ; 6. Mule Operations b. Lounge Service , © El Tovar Hotel 72 seats - Plateau Point Mule Rides e Arizona Room 20 seats Phantom Ranch Mule Rides ; © Bright el Lodge 80 seats © Duffel Service: Transport of soft-sided luggage to : omtaeie a and from Phantom Ranch © Dragout Service: Emergency evacuation of visitors C. Transportation/V isitor Information Desks from the inner canyon by mule © Bright Angel Lodge 7. Kennels for cats and dogs © Yavapai Lodge ; © Maswik Lodge . noe - aoe d. Concierge Services © Showers ° Blow 9. Trailer Village 3. General Merchandise © RV campground — 70 sites : te sete Shop oe — 10. Reservation System. In its reservation system, the con- © Matta : = Shop cessioner will implement a toll-free number. © Yavapai Lodge Gift Shop 11. Other . © Desert View Trading Post Gift Shop © Limited Vending © Desert View Watchtower Gift Shop © Interpretive Programs 76 ¢ Community Support © Pay Phones At any time after December 31, 2003, the National Park Ser- vice intends to withdraw transportation and kennel services from this Contract, upon reasonable notice to the Conces- sioner, and compete them as a separate business opportunity. (b) Operation and Quality of Operation (1) The Concessioner shall provide, operate and maintain the required and authorized visitor services and any related sup- port facilities and services in accordance with this CON- TRACT to such an extent and in a manner considered satisfactory by the Director. Except for any such items that may be provided to the Concessioner by the Director, the Concessioner shall provide the plant, personnel, equipment, goods, and commodities necessary for providing, operating in accordance with this CONTRACT. The Concessioner’s authority to provide visitor services under the terms of this CONTRACT is non-exclusive. 0 Support Services are required: Employee Cafeteria at Bright Angel Lodge © Employee Housing © Long term trailer village for NPS, Concession and cooperator employees only 86 sites © Long term trailer village for NPS, Concession and cooperator employees only at Pinyon Park — 39 sites ¢ Employee Shuttle © Operation of Community Recreation Center (c) Operating Plan The Director, acting through the Superintendent, shall estab- lish and revise, as necessary, specific requirements for the operations of the Concessioner under this CONTRACT in the form of an Operating Plan (including, without limitation, a risk management program, that must be adhered to by the 77 Concessioner). The initial Operating Plan is attached to this CONTRACT as Exhibit B. The Director in his discretion, after consultation with the Concessioner, may make reason- able modifications to the initial Operating Plan that are in furtherance of the purposes of this CONTRACT and are not inconsistent with the terms and conditions of the main body of this CONTRACT. (d) Merchandise and Services (1) The Director reserves the right to determine and control the nature, type and quality of the visitor services described in this CONTRACT, including, but not limited to, the nature, type, and quality of merchandise, to be sold or provided by the Concessioner within the Area. (2) All promotional material, regardless of media format (i.e. printed, electronic, broadcast media), provided to the public by the Concessioner in connection with the services provided under this CONTRACT must be approved in writing by the Director prior to use. All such material will identify the Con- cessioner as an authorized Concessioner of the National Park Service, Department of the Interior. (3) The Concessioner, where applicable, will develop and implement a plan satisfactory to the Director that will ensure that gift merchandise, if any, to be sold or provided reflects the purpose and significance of the Area, including, but not limited to, merchandise that reflects the conservation of the Area’s resources or the Area’s geology, wildlife, plant life, archaeology, local Native American culture, local ethnic cul- ture, and historic significance. (e) Rates All rates and charges to the public by the Concessioner for visitor services shall be reasonable and appropriate for the type and quality of facilities and/or services required and/or authorized under this CONTRACT. The Concessioner’s rates and charges to the public must be approved by the Director in 78 accordance with Applicable Laws and guidelines promul- gated by the Director from time to time. (f) Impartiality as to Rates and Services (1) Subject to Section (f)(2) and (f)(3), in providing visitor services, the Concessioner must require its employees to ob- serve a strict impartiality as to rates and services in all cir- cumstances. The Concessioner shall comply with all Applicable Laws relating to nondiscrimination in providing visitor services to the public including, without limitation, those set forth in Exhibit C. (2) The Concessioner may grant complimentary or reduced rates under such circumstances as are customary in busi- nesses of the character conducted under this CONTRACT. However, the Director reserves the nght to review and mod- ify the Concessioner’s complimentary or reduced rate poli- cies and practices as part of its rate approval process. (3) The Concessioner will provide Federal employees con- ducting official business reduced rates for lodging, essential transportation and other specified services necessary for con- ducting official business in accordance with guidelines estab- lished by the Director. Complimentary or reduced rates and charges shall otherwise not be provided to Federal employees by the Concessioner except to the extent that they are equally available to the general public. SEC. 4. CONCESSIONER PERSONNEL (a) Employees (1) The Concessioner shall provide all personnel necessary to provide the visitor services required and authorized by this CONTRACT. (2) The Concessioner shall comply with all Applicable Laws relating to employment and employment conditions, includ- ing, without limitation, those set forth in Exhibit C. 79 (3) The Concessioner shall ensure that its employees are hos- pitable and exercise courtesy and consideration in their rela- tions with the public. The Concessioner shall have its employees who come in direct contact with the public, so far as practicable, wear a uniform or badge by which they may be identified as the employees of the Concessioner. (4) The Concessioner shall establish pre-employment screen- ing, hiring, training, employment, termination and other poli- cies and procedures for the purpose of providing visitor services through its employees in an efficient and effective manner and for the purpose of maintaining a healthful, law abiding, and safe working environment for its employees. The Concessioner shall conduct appropriate background re- views of applicants to whom an offer for employment may be extended to assure that they conform to the hiring policies established by the Concessioner. (5) The Concessioner shall ensure that its employees are pro- vided the training needed to provide quality visitor services and to maintain up-to-date job skills. (6) The Concessioner shall review the conduct of any of its employees whose action or activities are considered by the Concessioner or the Director to be inconsistent with the proper administration of the Area and enjoyment and protec- tion of visitors and shall take such actions as are necessary to correct the situation. (7) The Concessioner shall maintain, to the greatest extent possible, a drug free environment, both in the workplace and in any Concessioner employee housing within the Area. (8) The Concessioner shall publis*. a statement notifying em- ployees that the unlawful manufacture, distribution, dispens- ing, possession, or use of a controlled substance is prohibited in the workplace and in the Area, and specifying the actions that will be taken against employees for violating this prohi- bition. In addition, the Concessioner shall establish a drug- 80 free awareness program to inform employees about the dan- ger of drug abuse in the workplace and the Area; the avail- ability of drug counseling, rehabilitation and employee assistance programs; and the Concessioner’s policy of main- taining a drug-free environment both in the workplace and in the Area. (9) The Concessioner shall take appropriate personnel action, up to and including termination or requiring satisfactory par- ticipation in a drug abuse or rehabilitation program which is approved by a Federal, State, or local health, law enforce- ment or other appropriate agency, for any employee that is found to be in violation of the prohibition on the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance. (b) Employee Housing and Recreation (1) If the Concessioner is required to provide employee hous- ing under this CONTRACT, the Concessioner’s charges to its employees for this housing must be reasonable. (2) If the visitor services required and/or authorized under this CONTRACT are located in a remote or isolated area, the Concessioner shall provide appropriate employee recrea- tional activities. SEC. 5. LEGAL, REGULATORY, AND POLICY COM- PLIANCE (a) Legal, Regulatory and Policy Compliance This CONTRACT, operations thereunder by the Conces- sioner and the administration of it by the Director, shall be subject to all Applicable Laws. The Concessioner must com- ply with all Applicable Laws in fulfilling its obligations un- der this CONTRACT at the Concessioner’s sole cost and expense. Certain Applicable Laws governing protection of the environment are further described in this CONTRACT. Certain Applicable Laws relating to nondiscrimination in 81 employment and providing accessible facilities and services to the public are further described in this CONTRACT. (b) Notice The Concessioner shall give the Director immediate written notice of any violation of Applicable Laws by the Conces- sioner, including its employees, agents or contractors, and, at its sole cost and expense, must promptly rectify any such vio- lation. (c) How and Where to Send Notice All notices required by this CONTRACT shall be in writing and shall be served on the parties at the following addresses. The mailing of a notice by registered or certified mail, return receipt requested, shall be sufficient service. Notices sent to the Director shall be sent to the following address: Superintendent Grand Canyon National Park P.O. Box 129 Grand Canyon, AZ 86023 Attention: Chief, Concessions Management Notices sent to the Concessioner shall be sent to the follow- ing address: Concessioner Address Attention: SEC. 6. ENVIRONMENTAL AND CULTURAL PRO- TECTION (a) Environmental Management Objectives The Concessioner shall meet the following environmental management objectives (hereinafter “Environmental Man- agement Objectives”) in the conduct of its operations under this CONTRACT: 82 (1) The Concessioner, including its employees, agents and contractors, shall comply with all Applicable Laws pertaining to the protection of human health and the environment. (2) The Concessioner shall incorporate Best Management Practices (BMPs) in its operation, construction, maintenance, acquisition, provision of visitor services, and other activities under this CONTRACT. (b) Environmental Management Program (1) The Concessioner shall develop, document, implement, and comply fully with, to the satisfaction of the Director, a comprehensive written Environmental Management Program (EMP) to achieve the Environmental Management Objec- tives. The initial EMP shall be developed and submitted to the Director for approval within sixty days of the effective date of this CONTRACT. The Concessioner shall submit to the Director for approval a proposed updated EMP annually. (2) The EMP shall account for all activities with potential environmental impacts conducted by the Concessioner or to which the Concessioner contributes. The scope and complex- ity of the EMP may vary based on the type, size and number of Concessioner activities under this CONTRACT. (3) The EMP shall include, without limitation, the following elements: (i) Policy. The EMP shall provide a clear statement of the Concessioner’s commitment to the Environmental Manage- ment Objectives. (ii) Goals and Targets. The EMP shall identify environmental goals established by the Concessioner consistent with all En- vironmental Management Objectives. The EMP shall also identify specific targets (i.e. measurable results and sched- ules) to achieve these goals. (iii) Responsibilities and Accountability. The EMP shall identify environmental responsibilities for Concessioner em- 83 ployees and contractors. The EMP shall include the designa- tion of an environmental program manager. The EMP shall include procedures for the Concessioner to implement the evaluation of employee and contractor performance against these environmental responsibilities. (iv) Documentation. The EMP shall identify plans, proce- dures, manuals, and other documentation maintained by the Concessioner to meet the Environmental Management Objec- tives. (v) Documentation Control and Information Management System. The EMP shall describe (and implement) document control and information management systems to maintain knowledge of Applicable Laws and BMPs. In addition, the EMP shall identify how the Concessioner will manage envi- ronmental information, including without limitation, plans, permits, certifications, reports, and correspondence. (vi) Reporting. The EMP shall describe (and implement) a system for reporting environmental information on a routine and emergency basis, including providing reports to the Di- rector under this CONTRACT. (vii) Communication. The EMP shall describe how the envi- ronmental policy, goals, targets, responsibilities and proce- dures will be communicated throughout the Concessioner’s organization. (viii) Training. The EMP shall describe the environmental training program for the Concessioner, including identifica- tion of staff to be trained, training subjects, frequency of training and how training will be documented. (ix) Monitoring, Measurement, and Corrective Action. The EMP shall describe how the Concessioner will comply with the EMP and how the Concessioner will self-assess its per- formance under the EMP, a least annually, in a manner con- sistent with NPS protocol regarding audit of NPS operations. The selfassessment should ensure the Concessioner’s con- 84 formance with the Environmental Management Objective. and measure performance against environmental goals any targets. The EMP shall also describe procedures to be take:, by the Concessioner to correct any deficiencies identified by the self-assessment. (c) Environmental Performance Measurement The Concessioner shall be evaluated by the Director on it, environmental performance under this CONTRACT, incluq_ ing, without limitation, compliance with the approved EMb on at least an annual basis. (d) Environmental Data, Reports, Notifications, and Ap, provals (1) tor, at least annually, an inventory of Federal Occupations; Safety and Health Administration (OSHA) designated ha,_ ardous chemicals used and stored in the Area by the Conce._ sioner. The Director may prohibit the use of any OSH, hazardous chemical by the Concessioner in operations under this CONTRACT. The Concessioner shall obtain the Dire. tor’s approval prior to using any extremely hazardous sup. stance, as defined in the Emergency Planning ag Community Right to Know Act of 1986, in operations under this CONTRACT. The Concessioner shall also submit to the Director, at least annually, an inventory of all waste streaty. generated by the Concessioner under this CONTRACT. Such, inventory shall include any documents, reports, monitori data, manifests, and other documentation required by Appjj- cable Laws regarding waste streams. (2) Reports. The Concessioner shall submit to the Direcig, copies of all documents, reports, monitoring data, manifes;._ and other documentation required under Applicable Laws to be submitted to regulatory agencies. The Concessioner shgjj also submit to the Director any environmental plans for Inventory of Hazardous Substances and Inventory of Waste Streams. The Concessioner shall submit to the Dire. 85 which coordination with Area operations are necessary and appropriate, as determined by the Director in accordance with Applicable Laws. (3) Notification of Releases. The Concessioner shall give t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0589%3A05. Public record. Not legal advice.