Appraisal for Leasing Space in the Sherman Adams Building within Mt. Washington State Park

New Hampshire Department of Natural and Cultural Resources Request for Bid (RFB) Sherman Adams Building at Mount Washington State Park, Sargents Purchase, NH The Department of Natural and Cultural Resources (DNCR) is soliciting bids for the determination of the “fair market value” for the leasing of space in the Sherman Adams Building, which is located on the summit of Mount Washington, within Mt. Washington State Park. Purpose of the Appraisal: For sole use of DNCR to determine the highest and best use of the area that is currently leased to the Mount Washington Observatory. Scope of work requested: Determine the fair market value for the commercial lease area in the Sherman Adams Building that the Mount Washington Observatory is currently occupying, in addition to doing a rent study for the following uses in the same area.  Research  Retail  Food Service  Short Term Lodging The Appraisal Report shall be completed in conformance with the current Uniform Standards of Professional

Appraisal Practice (USPAP). The report must be completed and delivered to DNCR by May 1, 2020. Access to the summit will be provide free of charge by Parks and Recreation. Bids are due on or before the close of business, no matter the delivery method, by February 26, 2020 to the following address: Division of Forests and Lands Lands Management Bureau 172 Pembroke Road Concord, NH 03301 Or via email - tracey.boisvert@dncr.nh.gov The following attachments are provided to assist in calculating your bid:  A locus map  The current lease and amendments  An aerial view of the summit  Property plan  Large format floor plans can be provided electronically on request Please contact Bob Spoerl or Tracey Boisvert at 271-2214, with any questions. AMENDMENT TO LEASE AGREEMENT THIS AMENDMENT is made to the Lease Agreement (the "Lease") pursuant to the terms of the Lease between the STATE OF NEW HAMPSHIRE, by and through its DEPARTMENT OF NATURAL AND CULTURAL RESOURCES (the "State"), and the MOUNT WASHINGTON OBSERVATORY (the "Lessee"), having its principal place of business at 2779 White Mountain Highway. P.O. Box 2310. North Conwav. NH 03860. WITNESSETH: WHEREAS, the parties have entered into the Lease above mentioned, approved by the Governor and Executive Council on September 23, 2009 (Item #47-B), in which the State agreed to lease to the Lessee, and the Lessee agreed accept, subject to the terms and conditions set forth in said Lease, a portion of the Sherman Adams Building therein identified and described as the premises, located on the Summit of Mount Washington, Sargent's Purchase, County of Coos, State of New Hampshire (the "Premises"), which is owned by the State; and WHEREAS, pursuant to the provisions of Part I of said Lease, approved by the Governor and Executive Council on September 17, 2014 (Item #54), in which the Lessee requested and was granted their right to exercise the renewal option for an additional five-year term; and WHEREAS, pursuant to the provisions of Part 28 of said Lease, the Lease may be amended only by written instrument signed by both the State and the Lessee and, any and all amendments to the Lease shall require the approval of the Governor and Council; and WHEREAS, pursuant to the provisions of Part 28 of said Lease, the parties agree to amend Part I of the Lease to extend the current term for one (I) additional year, so as to enable the parties to complete renegotiations of certain provisions of the Lease prior to the second renewal option taking effect, as provided for within the Lease, and with the approval of the Governor and Council; and WHEREAS, pursuant to the provisions of Part 28 of said Lease, the parties agree to amend Part I of the Lease to reduce the second renewal option by one (I) year less, so as to maintain the second renewal option expiration timeframe, and with the approval of the Governor and Council; and WHEREAS, the parties agree that all other terms and conditions subject under the current term shall remain in full force and effect, including the right of either party to request, in writing, mediation should the parties be unable to come to agreement on the revised lease terms; NOW THEREFORE in consideration of the foregoing, and the covenants and conditions contained in the Lease and amendments set forth herein, the parties do hereby agree as follows: I. TERMS OF AGREEMENT. To amend the current term of the first renewal option of the Lease by extending its term by an additional one (I) year to September 30, 2020, unless sooner terminated in accordance with the provisions of the Lease, subject to the approval of the Governor and Executive Council. And, to amend the second renewal option timeframe (1) by reducing its term by one (1) year for a four year term, subject to the approval of the Governor and Executive Council, so that in effect the extended current term plus the reduced second renewal option upholds the five-year timeframe and cycle of the Lease. 2. CONTINUANCE OF LEASE. Except as specifically amended and modified by the terms and conditions of this Amendment, the obligations of the parties thereunder, shall remain in full force and effect in accordance with the terms and conditions set forth therein. IN WITNESS WHEREOF, the parties hereunto have set their hand on the date herein named: MOUNT WASHINGTON OBSERVATORY Date: Gary MacDonald, Chairman, Board of Trustees (Duly authorized) STATE OF NEN^AMPSHIRE COUNTY OF (_arro On this ^9"^ day of , 2019, before me, lYVx^Anw^/^^j^l. , the undersigned officer, personally appeared Gary MacDonald, known to me or satisfactorily proven to be the person subscribed to the within instrument, and acknowledged that he was duly authorized and executed the Amendment for the purposes therein contained. ^ ̂ /a/ y - Notify Public/Justice^the Peace My commission expires: "^^NOWIY Stats of New Hamp^lre My Commission Expires 2/20/2024 STATE OF NEW HAMPSHIRE DEPARTMENT OF NATURAL AND CULTURAL RESOURCES Witness rah Stew ommissioner Date: ^ Approved as to form, substance and execution by the Attorney-peneraFs Office: Date: 'I ipproved by Governor and Council: Dale: Item#: SLS/ul-0821 19 (2) state of New Hampshire Department of State CERTIFICATE !, William M. Gardner, Sccrciary of Slaie of ihe Stale of New Hampshire, do hereby certify that MOUNT WASHINGTON OBSERVATORY is a New Hampshire Nonprofit Corporation registered to transact business in New Hampshire on December 09, 1936. I further certify that all fees and documents required by the Secretary of State's office have been received and is in good standing as far as this office is concemed. Business ID; 61810 Certificate Number: 0004571476 % IB. o 5^ % IN TESTIMONY WHEREOF, 1 hereto set my hand and cause to be affixed the Seal of the State of New Hampshire, this 23rd day of August A.D. 2019. William M. Gardner Secretary of Stale I, Paul T. Fitzgerald, am the Secretary of the Mount Washington Observatory and hereby certify that the following resolution was adopted by the Executive Committee Board of Trustees by authority pursuant to Article VII, Section 2 of the corporate by-laws on August 27, 2019 and is still in fiill force and effect: That the Chair, Gary MacDonald, is authorized to execute on behalf of the Mount Washington Observatory ail documents necessary to extend the October 1, 2009 lease between the Mount Washington Observatory and the State of New Hampshire one year upon current terms and conditions to facilitate lease re negotiations. August 28, 2019 S Paul T. Fitzgerald Secretary EXERCISE OF RENEWAL OPTION OF LEASE AGREEMENT BETWEEN THE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT AND THE MOUNT WASHINGTON OBSERVATORY THIS EXERCISE OF RENEWAL OPTION (the "Renewal Option") is made pursuant to the Lease Agreement (the "Lease") as granted according to the terms of the Lease by and between the STATE OF NEW HAMPSHIRE. DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT (the "State" and "DRED"), through its Commissioner, and MOUNT WASHINGTON OBSERVATORY (the "Lessee") having its principal place of business at 2779 White Mountain Highway. PO Box 2310. North Conwav. NH 03860. WITNESSETH: WHEREAS, the parties have entered Into the Lease above mentioned, approved by the Govemor and Executive Council on September 23. 2009. Item #47-B. in which the State agreed to lease to the Lessee, and the Lessee agreed to accept, subject to the terms and conditions set forth in said Lease, a portion of the Sherman Adams Building therein identified and described as the premises, located on the Summit of Mount Washington, Sargent's Pur,chase. County of Coos, State of New Hampshire (the "Premises"), which is owned by the State; and WHEREAS, pursuant to the provisions of Part 1 of the Lease, the Lessee hereby wishes to exercise the first of Its three (3) renewal options provided for in the Lease, for an additional five- year term; and WHEREAS, the parties hereto agree, pursuant to the exercise of the renewal option, to extend the term of the Lease for an additional five years; NOW THEREFORE in consideration of the foregoing exercise of the renewal option, and the covenants and conditions contain in the Lease and set forth herein, the parties do hereby agree as follows: 1. Term of Lease To extend the term of the Lease to Septemt>er 22, 2019, unless sooner terminated in accordance with the provisions of the Lease, subject to the approval of the Governor and Executive Council. 2. Continuance of Lease Except as specifically amended and modified by the terms and conditions of this Renewal Option, the Lease and the obligations of the parties thereunder, shall remain in full force and effect in accordance with the terms and conditions set forth therein. [SIGNATURE PACE TO FOLLOW.] (1) IN WITNESS WHEREOF, the parties hereunto have set their hand on the date herein named: MOUNT WASHINGTON OBSERVATORY Bv 'QJ. Date: ̂ a /"t- £4-6efgeron, President (Duly authorized) H. ✓.'7^ s STATE OF NEWHAMPSHIRE COUNTY OF QimjU On this. day of 2014, before me,_ ^:.6(imu.nc( fer^rOA.,. the undersigned officer, personally appeared Ed Bergeron, known to me or satisfactorilyCjbroven to be the person subscribed to the within instnjment, and acknowledged that he was duly authorized and executed the Exercise of Renewal Option for tbfi^purposes therein contained. A itness Notary PutJlic/Juste^f the pei My commission expires: JAIMIE GAGNE. NotsrY Public My Commiuion Expires: March 24,2015 STATE OF NEW HAMPSHIRE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT By. Date JeirrewJ. Rose, Commissioner :n/n/\n Approved as to form by the Attorney G^er s and executionu Offi ' Date: Approved by Governor and Council: Date:. i JJRmi.041714 Item#: (2) ^Bpartmcnt of ̂ tatc CERTIFICATE I, William M. Gardner, Secretary of State of the State of New Hampshire, do hereby certify that Mount Washington Observatory is a New Hampshire nonprofit corporation formed December 9, 1936. I further certify that it is in good standing as far as this office i is concerned, having filed the retum(s) and paid the fees required by law. In TESTIMONY WHEREOF, I hereto set my hand and cause to be affixed the Seal of the State of New Hampshire, this 1" day of August A.D. 2014 William M. Gardner Secretary of State MWOBS MOUNT WASHINGTON OBSERVATORY PO Bo* 2310, Nortfi Conway, New Hanip'jhire 03S60 Phone: (603) 356-2137 [ Fa*: (603) 356-0307 Mount Washington Observatory 2779 White Mountain Highway North Conway, NH 03860 I, Jack B. Middleton, am the Secretary of the Mount Washington Observatory and hereby certify that the following resolution was adopted by the Board of Trustees on August 27, 2014 and is still in full force and effect: That the President, Edward Bergeron, is authorized to execute on behalf of the Mount Washington Observatory all documents necessary to extend the October I, 2009 lease between the Mount Washington Observatory and the State of New Hampshire JacI^. Middleton Secretary HOMC OF THE world's WORST. www.MountWashlngton.org E AXH E R MWOLease Page] of 15 State of New Hampshire Department of Resources and Economic Development Division of Parks and Recreation & The Mount Washington Observatory LEASE This lease is entered into the 1st day of October, 2009 ("the commencement date), between the STATE OF NEW HAMPSHIRE, by and through its Department of Resources and Economic Development, 172 Pembroke Road, P.O. Box 1856, Concord, New Hampshire, 03302-1856 (hercinafler caUed the "State"), and the MOUNT WASHINGTON OBSERVATORY, a coiporation duly organized and existing under laws of the State of New Hampshire and having its principal place of operations on the Summit of Mount Washington, Sargent's Purchase,- County of Coos, State of New Hampshire, and its mailing address-as P.O. Box 2310, North Conway, NH (hereinafter called the "Lessee"). This Lease is subject to the approval of the Governor and Executive Council of the State of New Hampshire. 1- DESCRIPTION OF PREMISES / TERM. PAYMENT. AND RENEWAL The State her^y agrees to lease to the Lessee, and the Lessee, hereby agrees to accept, subject to the terms and conditions hereinafter set forth^ the following premises: A portion of the Sherman Adams Building, so-called, located on the Summit of Mount Washington, 'Sargent's Purchase, County of Coos, State of New . Hampshire, with the right to occupy and maintain the section of said building specifically designed and constructed for Observatory working and living quarters, and a portion of the surface deck immediately above said sections of the building, and'the Mount Washington Museum portion in the lower level designed and constructed for educational purposes, all delineated as Observatory Exhibit A. first floor, and Exhibit B. lower level, and the Mount Washington Museum area, together with the right to access-the premises over the premises of the State. The State reserves the right for itself and guests, employees and assigps, with reasonable notice to the Lessee, of passing over said premises at any and dl necessary and reasonable times on foot, as they may have occasion, giving due consideration to the use and occupancy of the leased premises. Notice is not required in the case of an emergency or exigent circumstance requiring the need to pass over said premises without the opportunity to provide notice. MWO Lease Page 2 of 15 To hold and enjoy the aforesaid premises and rights for a term of five (5) years from the commencement date, unless this Lease is sooner terminated under the provisions of this indenture, in consideration of the Lessee paying therefore to the State a base rental of One Dollar ($1) per year, plus an additional annual rental iamount^of Forty Five Thousand Dollars (S45,000) for the first year of the Lease (year one), and Sixty Thous^d Dollars ($60,000) for each subsequent year of the.Lease (year two, three, four, five), in equal monthly installments by check made payable to "The State of New Hampshire," mailed to the address provided in paragraph 26. The base rental amount is due on the .commencement date, and, thereafter, annually during the Lease term on the anniversary of the coimnencement date. The annual rental amount is due in twelve (12) equal monthly installments beginning on the commencement date, with each monthly payment due on the first day of each successive month. The Lessee may, at its option, renew this Lease for three (3) additional five-year terms, for a base rmtal amount of One Dollar ($1) per year, and an annual rental amount of Sixty Thousand Dollars ($60,000) per year payable in equal monthly installments, by giving written notice via certifi^ mail to the State one hundred and eighty (180) days in advance of the termination date of the ciiTTent lease term, subject to the terms of the renegotiation provision herein. Renewal of this Lease is subject to the approval of the Governor and Executive Council of the State of New Hampshire. Should the Lessee exCTcise its second-renewal option according to the preceding paragraph (i.e. during lease year 10 for lease years 11 - 15), either'party shall have the right to renegotiate paragraphs 1, 2, 3, 10, 17, & 18, of this Lease prior to the second renewal taking effect. To exercise this renegotiation provision, within thirty (30) days of receipt of the Lessee's written notice of its intention to exercise its second renewal option, either party shall notify the-other party ill writing of its intention to renegotiate the referenced paragraphs. Thereafter the parties shall renegotiate the terms of these paragraphs in good faith. Should the parties be unable to come to agreement on revised lease terms within sixty (60) days of the written notice to renegotiate the referenced p^agraphs, either party may request mediation in writing. Should mediation be requited, wthin thirty (30) days of the request for mediation the parties shall jointly select a neutral third party who shall serve as a mediator between the parties on the renegotiation issue. The parties shall schedule mediation session(s) as are reasonably necessary to discuss the issue(s) in dilute and shall renegotiate in good faith with the mediator. The parties shall shm-e the costs" of the mediator equally. Should the parties fail to agree to re^asions/araehdments to these paragraphs' by the termination date of the lease term, whether through their own negotiation'or with the assistance of a mediator, the Lease shall end on the termination date. Should the parties fail to timely exercise their right to renegotiate, the Lease shall renew on its then-existmg terms. •Nothing herein prevents the parties from amending the terms of this Lease in writing at any point during Uie Lease terni, with any necessary approval fi-om the Govemor and Executive Council. MWO Lease Page 3 of 15 2. HEAT, WATER. UTILITY CHARGES During the term hereof the Lessee shall pay for all electricity and heat for the leased premises each year, with the exception of heat and utilities for the Mount Washington Museum. Electricity'and heat will be invoiced by the State on or around the 27^ of each month of the lease tenu. Payment shall be due to the State within thirty (30) days of the date of the State's invoice. A payment received by the State after thirty (30) days of the date of the State's invoice shall be considered a late payment. Three (3) consecutive late payments, or eight (8) late payments anytime over a term of the Lease, shall constitute a niaterial breach of the Lease. Should a payment not be received by the State within thirty (30) days of the date of the State's invoice, the State may send the Lessee a written demand for payment. Should the State not receive payment from the Lessee within fifteen (15) days of the date of the State's written demand, it shall constitute a nonpayment. A nonpayment of utilities by the Lessee sbail constitute a material breach of the Lease. The State will review annual rates after the first of the year and said rates will be set and effective by March 1" of each year of the lease term for the forthcoming year. The State shall furnish heat, electricity, and water within limits of the present facilities delineated as Observatory Exhibit A, first floor, and Exhibit B, lower level, and the museum area during the period as outline above. The installation and operation of expanded or additional services shall be at the expense of the Lessee with prior written approval from the State. In the event any intemqition should occur in such services, the State shall not be responsible but shall make every effort to restore service as soon as possible. Telqihone, internet, and other such communication service for its own use shall be the responsibility and sole cost of the Lessee. Lessee shall pay for its propane used for cooking purposes. The State claims all aural and visual broadcast rights on the summit The use of any such rights by the Lessee shall be subject to State approval by separate written agreement, fees, permits, frequency surveys and other requirements as may be required by the FCC and the State. All requests for the installation of radio transmission equipment above five (5) watts in power shall be pre-approved by the State in writing through separate agreement, which shall not be unreasonably withheld. Lessee agrees to install radio transmission equipment, of any power, of the type and frequency which will not cause measurable interference to the State, other lessees of the premises or neighboring landowners. In the event the equipment of Lessee causes such interference, and after the State has notified Lessee of such interference, Lessee shall take all steps necessary to correct and eliminate the interference. This provision is specifically not intended to limit the right of the Lessee to conduct educational and other programming over the world wide web, or radio/TV broadcasts relating to weather reporting or reporting on the summit activities of the Lessee, equipment testing, instrument siting, and providing services for the National Weather Service. MWO Lease Page 4 of 15 3. USE OF PREMISES The Lessee's use of the leased premises shall be exclusively for weather, climate, alpine geology, alpine biology, and alpine ecology related scientific research and educational purposes, and such other purposes of the Lessee as may be approved by the State in writing; provided, however, the Lessee shall not carry on any trade or occupation, or make any use of the premises, which will be improper, noisy, offensive, or contrary to any law, ordinance, or regulation of the United States government or any agencies thereof, the State of New Hampshire, or any subdivision thereof authorized to make regulations with respect to Sargent's Purchase, or which will be injurious to any person or property, or which will make void or voidable any insurance on the premises, or which may cause.an increased or extra premium to be payable for such insurance. Should the State wish to permit another tenant or licensee to perform any weather related -research/product testing on the summit it will, in the first instance,-direct said tenant or licensee to the Lessee, so that the Lessee may have the opportunity to come to an agreement with the tenant or licensee regarding the weather related research/product testing to be performed on the leased premises. Should Ae Lessee elect not to enter into such an agreement, or should the Lessee fail to enter into an agreement with the tenant or licensee, within thirty (30) days of notice fi"om the State, the State may enter into an agreement with the tenant or licensee to perform such work on the summit. This provision does not apply to weather related research/product testing, performed by, or on- behalf , of, the State of New Hampshire. 4. REPAIRS AND MAINTENANCE , ' - The State shall at its own expense keep the exterior and interior of the leased premises, including all glass now installed, furnaces, water pumps, and septic system in tenantable repair, order and condition,"unless such repairs are due to Lessee neghgence. Damage or loss as a result of fire or other casualty only excepted. Lessee shall be held legally and financially liable for any and all damages, repairs or rehabilitation caused by its operations. The Lessee shall be fully and solely responsible for, at its expense, .all daily maintenance of the ^leased premises and its equipment, including daily snow removal fi-om the entrance of the four emergency exits. Building maintenance, sanitation and housekeeping shall have the objective of keeping and continuing the facility in as good a condition as on the commencement date of this Lease, recognizing normal wear and tear. The Lessee shall promptly report any and all damage to the premises occasioned by stonn, accident, or other such events. Minor plumbing and electrical repairs or modifications to the leased preihises for the Lessee's convenience shall be the Lessee's sole responsibility and expense. Such modifications of existing systems shall only be performed by licensed professional plumbers and/or electricians MWO Lease Page 5 of 15 and shall be subject to prior written approval by the State, which shall, not be unreasonably withheld. The Lessee shall, at its own expense, maintain all kitchen ductwork and ventilation systems and shall clean such systems annually. 5. FIXTURES AND IMPROVEMENTS Any improvements or fixtures installed by the Lessee which are affixed to' the real estate by nails, screws, or some other detachable means may be removed upon the termination of this. lease, provided all damage or defacement of the premises caused by such removal is fq)aired by the Lessee to the satisfaction of the State. Any improvements or fixtures not so removable, or which are not removed prior to the tennination of this lease, shall become the property of the State. 6. ALTERATIONS The Lessee shall have the option and the right, at its expense, to improve the decor and eqjpearance of the leas^ premses but shall not make any substantial alterations or any structural changes without the written consent of the State. Any work done by the Lessee shall be done in accordance with all t^plicable laws and regulations, and in a workmanlike manner. 7. RISK OF LOSS All property of every kind on the leased premises shall be at the sole risk of the Lessee and the State shall not be liable to the Lessee or any other person for any injury, loss, damage, or inconvenience occasioned by any cause'whatsoever to said property. 8. INDEMNITY The Lessee shall be responsible for any and all claims and/or damages resulting fi-om its, its servants, its .agents or its invitees* use of the leased premises and/or other areas in which the Lessee, its servants, agrats, or invitees may be permitted to use. under the terms of this Lease. To the full extent of the insurance required pursuant to paragraph 10 below, the Lessee agrees to hold harmless and indemnify the State, against all loss, damage, liability, expense, suits, demands., and claims, including, but not limited to, cases of injury to third parties or their property, arising out of: t a." Any improper act, improp^ failure to act, or negligence of the Lessee, its servants, agents or invitees occurring on the leased premises, or other areas in which the Lessee, its MWO Lease Page 6 of 15 servants, agents," or invitees may be permitted to use under the terms of this Lease, in conjunction with Lessw's activities under this lease; b. Anything owned or controlled by the Lessee, its servants, agents, or invitees and used on the leased premises, or other areas in which the Lessee, its servants, agents, or invitees may be permitted to use under the terms of this Lease, in connection with Lessee's •activities under this lease; or c. Any nuisance made by the Lessee, its servants, agents, or invitees on the leased premises, or other areas in which the Lessee, its servants, agents, or invitees may be pennitted to use under the terms of this Lease, in connection with Lessee's activities under this lease. Notwithstanding the foregoing, nothing herein contained shall be deemed to constitute a waiver of the sovereign immunity of the State, which immunity is hereby reserved to the State. This covenant shall survive the termination of this Agreement. 9. DAMAGE OR DESTRUCTION In the event that the leased premises, or any part thereof, or the building of which they all are a part shall, during said term, be destroyed or damaged by fire, flood, acts of terrorism, war, lightning, wind, weather, or other casualty so that the same shall be thereby rendered unfit for the purposes of the Lessee, the Lessee may terminate this lease at its option. In any event, the State shall not be obligated to rebuild or replace any building wholly or substantially destroyed by fire, flood, acts of terrorism, war, lightning, wind, weather, or other casualty. » In the event that electrical power, fuel oil, or propane delivery systems become damaged, the State will make every reasonable effort to restore such services, but shall not be held responsible for full restoration of such services if severely damaged by fire, flood, acts of terrorism, war, lightning, wind, weather, or other casualty. The State shall have no responsibility whatsoever for any financial losses that the Lessee may suffer as a result of such interruption of services. 10. INSURANCE During the performance of this Lease, the Lessee, at its sole cost and expense and for the mutual benefit of the Lessee and the State, shall carry and maintain the following types of insurance in the amounts specifii^: a. Workers Compensation Insurance covering employees of Lessee from loss or damage because of liability under the Workers Compensation Act. b. Comprehensive General Liability Insurance against all claims for injury to or death of persons, or damage to property occurring (or which may be claimed to have occurred) on, MWO Lease Page 7 of 15 in, or about the premises to be occupied and operated by the Lessee as set forth herein, such insurance to afford minimum protection during the term of this agreement, in limits of not less than $1,000,000 in respect to bodily injury or death to one person in any one accident and $2,000,000 in respect of bodily injury or death to one or more persons in one or more accidents and of not less than $1,000,000 for property damage. c. Fire insurance while the building is occupied by the Lessee insuring the leasehold improvements and equipment thereon against loss or damage by fire or damage by other • risks now or hereafter embraced by "Extended Coverage" so-called, in amoxmts not less than eighty percent (80%) of the whole replacement value of said leasehold improvements and equipment. 11. INSURANCE RIGHTS Neither party will assign, transfer, or set over to its insxner any rights of subrogation against the other because of any payment required to be made under any policy of insurance oh the leased premises or the contents thereof and each agrees that a waiver of such subrogation rights will be procured and written into any such insurance policies issued to either party. 12. SUBLETTING AND ASSIGNMENT The Lessee shall not assign this Lease or sublet the premises, in whole or in part, without the written consent of, the State. However, this provision shall not prevent the Lessee from performing and being compensated for work for others, which work may include the testing, operation and exposure of equipment, products and instruments within and/or on the leased premises. 13. INSPECnON The State or its agent shall have the right to enter the leased premises at reasonable times with reasonable notice to the Lessee, for the purpose of inspecting its condition and/or for making repairs. Notice is not required in the Case of an emergency or exigent circumstance requiring the need to enter said premises for inspection and/or repair without the opportunity to provide notice. 14. QUIET POSSESSION The State covenants and warrants that the State has full right and lawful authority to enter into this Lease for the.full tenn hereof, and for all extensions herein provided, and that the State is lawfully seized of the entire premises hereby leased and has good title thereto free and clear of all tenancies, liens and encumbrances. .The State further covenants and warr^ts that if the Lessee shall discharge the obligations herein set forth to be performed by the Lessee, then the Lessee shall have and enjoy, during the temi and any renewal or extension hereof, the quiet and MWO Lease Page 8 of 15 undisturbed possession of the leased premises together with all appurtenances thereto, for the uses herein described. ■ 15. JANITORIAL SERVICES The Lessee shall be responsible for routine cleaning of the following areas; a. All portions of the building used solely for Observatory purposes, including living quarters, observation tower, work rooms, utility rooms etc., as delineated and described herein, and any area on the property provided to the Lessee for temporary use to conduct short-tenn science and research projects; b. The Mount Washington Museum portion of the building and any sales area that might be granted in addition for Lessee's use; and c. In the winter, any area impacted by Lessee's visitors or educational program participants. 16. SCOPE OF JANITORIAL SERVICES The Lessee shall provide routine cleaning for walls, floors, windows, light fixtures, draperies and ~ blinds in the Lessee's designated areas. The Lessee shall also be responsible for maintaining high standards of sanitation-in the Observatory portion of the building, and in other areas that are" granted in addition for Observatory use, in accordance with the applicable rules and regulations promulgated by the Departmmt of Health and Human Services. TTie Lessee shall be responsible for collecting and/or picking up garbage from its operations and .disposing of the same. ̂ The Lessee shall be responsible for transport of its garbage and rubbish off the mountain.' The term "routine cleaning" shall include good housekeeping, including, but not limited to, the furnishing of materials and supplies that may be necessary to perform this service. 17. BUILDING AND PLANT a. Mount-Washington Museum: The Lessee agrees in the museum section of the Sherman Adams Building, including all areas plus.the adjacent conference room so designated by mutual agreement on the architectural plans for the building, to conduct ' operations according to the following covenants: '' • 1) Said museum shall be used primarily for the display of both passive and active educational exhibits for the general public, featuring the weather, history, geology, botany, zoology and ecology of the Presidential Range and related matters. Those activities may include guided tours outside the museum on and about Mount Washington. MWO Lease Page 9 of 15 2) The Lessee will operate within the museum section, and may operate in any other area that may be granted for that purpose by the State, a counter and storage space for sales of educational materials ̂ ooks, photos, posters, scientific instruments). Observatory memorabilia (clothing, and other items with an Observatory insignia), and related materials, but no food or beverages shall be offered for sale and/or sold. In order to facilitate delivery of materials to the Mount Washington Museum, the Lessee shall have the ability to utilize the Sherman Adams Building loading dock and elevator, and traverse through the "Pack Room," so-called, en route to the Mount Washington Museum floor. The Lessees use of the loading dock, elevator, and "Pack Roon^" as described in the prior sentence shall not interfere with or otherwise impede the State's rights to and/or use of said areas. 3) The lessee may charge a reasonable admission fee to the Mount Washington Museum. While the Lessee has the right to charge admission fees to the Mount Washington Museum, the State shall not charge any admission fee or other fee to the general public for access to or the use of the Sherman Adams Building. The distribution of admission fees collected/obtained by the Lessee is address^ Paragraph 18. 4) Lessee shall be responsible for the costs of furnishing the interior of the museum section, including costs of providing new and changing exhibits, subject to paragraph 18. 5) The Lessee vldll have the primary responsibility for the content and quality ■ of the museum exhibits. The State may request that certain exhibits acquired by the State by means of gift or purchase be displayed in the museum. The State shall reimburse the Lessee for the reasonable costs and expenses incurred by Lessee in constructing, installing and displaying such exhibits. 6) All employees of the Lessee, while working in the museum, shall be clad in neat and clean uniforms satisfactory to the State. The employee may satisfy this requirement by wearing a clean and appropriate shirt or vest imprinted with the logo of the Lessee. b. Overnight Lodging. Overnight lodging of Lessee staff, volunteers, members and guests are hot to exceed seventeen (17) people. Staff, volunteers, members and guests shall sleep in areas protected by automatic sprinklers only, as depicted in Exhibit B. The Mount Washington Museum shall not be used as an overnight lodging facility. The Lessee, at its own expense, shall satisiy all requirements set forth by the State Fire Marshall's OfBce and Health and Human Services regarding occupancy rules, safety, food handling, and sanitation. If, during the term of this Lease, the State Fire Marshall's OfBce determines that the number of permissible overnight visitors is less than seventeen (17) people, the Lessee agrees to abide by the recommendations/directives of the State MWO Lease Page 10 of 15 Fire Marshall's Office in limiting the number of overnight visitors to be consistent therewith. c. Search and Rescue Support, fn recognition of the sometimes extreme conditions on and around the summit and the resulting need to conduct search and rescue (BAR) operations, the Lessee agrees to support the State and other emergency response entities in such operations, as requested. Support shall mean, upon the request of the State, the occasional use of the leased premises by State staff; and the authorized use of, at no cost. Lessee vehicles, garage SAR staging area, and staff time to support BAR operations. The ' Lessee shall not field an SAR team unless it has the expertise.to do so, but shall provide support services throu^ the availability of its resources. d. Special Uses. While the Sherman Adams Building is closed to the public in the winter, the Lessee may utilize the main entrance to the building as its primary entrance for staff and authorized visitors. During this time, the Lessee and its authorized visitors shall have the ability to traverse through the Sherman Adams Building en route to the leased premises, and to use the "Rotunda," so-called, for the t^porary storage of authorized visitors' backpacks and gear while visiting. Such entry area, storage area, and items stored shall be maintained in a neat and orderly condition and all times. The Lessee, with the permission of the State, shall also have the ability to utilize the stairway that leads from the concession area down to the lower level of the leased premises for die transport of goods and supplies. The Lessee may provide guided tours on and about State property on and about the summit of Mount Washington. Such tours shall not have access to or through private, work or storage areas of the State or any building or area closed to public access, without prior authorization from the State. The rights provided under this section may be temporarily suspended by the State, with notice to the Lessee, should the State require the use of, or access to, the areas in question. 18. ACCOUNTING METHODS AND ADDITIONAL PAYI^NTS i a. Museum Admission: All fees collected/obtained for Museum admissions vyill be shared between the State and the Lessee as agreed in paragraph b. b. Pavments: With respect to the Mount Washington Museum, admission fees, the following will apply: 1) in January of each year during the lease term, the Lessee shall cdculate the total sum of funds eamed pursuant to paragraph 18a for the prior calendar year. Disbursements made under paragraphs 2 & 3 below shall be made by February 15 of each year during the lease term for the prior calendar year, or portion thereof. 2) The first On Hundred and Twenty Thousand Dollars ($120,000) eamed annually will be retained by the'Lessee; MWO Lease Page 11 of 15 3) Any amounts earned annually in excess of One Hundred and Twenty Thousand Dollars ($120,000) shall be divided equally between the State and the Lessee, with the State's share to be deposited in the RSA 227-B:9 Mount Washington Fund to be used for physical plant repairs, building updating and general summit clean-up, or such other improvements pursuant to the statute, and the Lessee's share to be deposited in a restricted fund for Summit museum display maintenance and replacement, with amounts to be removed from that fiind also approved by the Mount Washington Commission at a duly constituted meeting. c. All Other Fees and .Sales: In addition to the amounts specified in paragraphs 1 and 18b of the Lease, the Lessee shajl pay to the State on an annual basis by February 15 of each year during the lease term, for the prior calendar year, or portion thereof, a five percent (5%) commission on the gjross fees, sales, or other charges collected by the Lessee for services performed or material sold on the Summit as defined as follows: Subiert to commission: -Retail sales -Educational programs (EduTrips, winter DayTrips) -Non-staff ovemi^t visits (media, researchers, visiting students) -Group Observato^ tours -Licensing agreements -Product testing -Research contracts (except those with the United States of America, a State, or a political subdivision, which prohibits the payment of commissions or the like) -Contract services (including, but not limited to, radio/TV broadcasts, equipment testing, instrument siting, except those with the United States of America which prohibits the payment of commissions or the like) Not subject to commission: -Fundraising (membership dues, special events, annual appeal) -Corporate sponsorship -Grant income (Federal and private) d. Accounting Records: The Lessee shall maintain such books of account and records, as may be sufficient to show specifically the items of total dollar receipts and such other information as will correctly reflect the results of Mount Washington Museum and Lessee's summit operations. Those books and records shall be available at all reasonable times for inspection by the State and shall be kept by Lessee for at least three (3) years after the year to which they relate. e. . Audits: The State shall have authority to audit at its expense the Lessee's books and records in order to protect the public interest. Such audits shall be subject to supervision by'the Director of Accounts, State of New Hampshire, and shall be made at such times as he may deem necessary to protect the State's interests. Lessee shall have the right to be MWO Lease ' Page 12 of 15 present during any such audit, and shall timely receive copies of all documents relating to the audit. 1 Accounting Reports: The Lessee shall submit annually to the Commissioner, Department of Resources ̂ d Economic Development, within one hundred and eighty (180) days after the close of its fiscal year, a copy (certified if Lessee obtains one) of its financial statements which will specifically report on the gross amount of Mount Washington Museum revenues and fees, sales, or other charges collected by the Lessee for services performed or material sold on the Summit as defined above. 19. SIGNS AND ADVERTISING All signs and advertising matter posted at the Leased Premises must be in good taste and acceptable to the State as determined by the Commissioner of the Department of Resources and Economic Development, or his designee as set forth in writing, whose consent will not be unreasonably withheld. The Lessee conducts very visible, high profile operations, often drawing media attention to the summit of Mount Washington. This widespread publicity has the potential to build awareness of, and ultimately draw more visitations to the summit of Mount Washington. While the Lessee is under no obligation to mention Mount Washington State Park by name in its marketing, advertising, or publicity, the Lessee will make a reasonable effort to draw attention to the Observatory's existence within the State Park on the summit and the cooperative.relationship between the Lessee and the State. 20. HOURS OF OPERATION The museum will be operated, at a minimum, whenever the "restaurant facilities in the building are operating, unless the parties agree otherwise. 21. RELATION TO THE STATE It is the intent pf the parties hereto that the Lessee shall be legally considered as an independent contractor and-that neither ithe Lessee nor its employees shall, under any circumstances, be considered servants or agents of .the State of New Hampshire, and that neither the State nor the Lessee shall at any time be legally responsible for any acts of omissions on the part of the other, its servants, or invitees resulting in either personal or property damage to any individual, firm or corporation. 22. EQUAL OPPORTUNITY MWO Lease Page 13 of 15 T^e Lessee shall not, in employing persons or providing services pursuant to this lease, discriminate on the basis of age, race, color, sex, sexual orientation, national origin, religion, or marital status. 23. DEFAULT If the Lessee shall violate'any of the covenants, conditions, warranties, or provisions contained herein and such violation shall continue unchanged for more that thirty (30) days after notice in writing, or if the Lessee shall be declared insolvent, or shall be adjudicated a bankrupt, or shall assign for the benefit of creditors, or if the premises shall be taken on execution, the State may immediately, or at any time thereafter, and without demand or notice upon the Lessee to quit, elect to enter upon said premises, and take possession thereof, whereupon this Lease shall absolutely terminate and it ishall be no defense to the Lessee that previous violations of any covenants have been waived by the State, either expressly or by implication. Any such election by the State shall not discharge the Lessee's obligations under this lease. 24, RE-DELIVERY OF PREMISES The Lessee will peaceably and quietiy quit and deliver up to the State or its attorney, or other duly authorized agent, the premises, at the expiration or other termination of tlus Lease, or any renewal fiiereof, leaving the premises in as good condition as they now are or may be placed in during the term of this Lease, reasonable and ordinaiy wear and damage by fire or other casualty excepted. Such delivery shall include all keys to the leased premises, and failure to deliver such keys shall make the Lessee responsible for the expense of lock changes. 25. WAVIER The parties covenant that the failure of either to insist in any one , or more instances upon the stnct and literal performance of any of the covenants, terms or conditions of this Lease, or to exercise any option herein contained, shall not be construed as a waiver or a relinquishment for the future of such covenant, term, condition or option, but the same shall continue and remain in full force and effect. The payment or receipt of rent, with knowledge of the breach of any covenant, term or condition hCTeof, shall not be deemed to be a waiver of such breach, and no waiver of any covenant, term, condition or provision of this lease, or of the breach thereof, shall be deemed to have been made, unless expressly acknowledged in writing by the party waiving the right or claim over its signature. 26. NOTICES All notices hereunder by the State to the Lessee shall be given in hand or overnight receipted delivery at 2779 White Mountain Highway, North Conway, or by registered or ceilified mail, addressed to the Lessee at Post Office Box 2310, North Conway, New Hampshire, or such other address as the Lessee may fi-om time to time give to the State for this purpose and all notices by MWO Lease Page 14 of 15 the Lessee to the State shall be given in hand or by ovemi^t receipted delivery or by registered or certified mail, addressed to its offices, DR£D, Post Office Box 1856, 172 Pembroke Road, Concord, New Hampshire, 03302-1856, or to such other address as the State may from time to time give in writing to the Lessee for this purpose. 27. TAXES ■ ' The Lessee agrees to hold the State harmless with respect to and agrees to pay in addition to other payments provided herein, the full amount of tax« levied against the premises subject to this agreement as a consequence of the application of RSA 72:23.1, which provides for taxation of certain State properties used or occupied by persons or entities other than the State. In the event the Lessee shares a larger parcel of land with other lessees or other concessionaires, it shall be obligated to pay only its pro rata share of any such taxes. Failure of Lessee to pay the duly assessed personal and real estate taxes when due shall be cause to terminate said lease or agreement by the State. Lessee claims that its real estate and personal property are exempt from, taxation by reason of the provision of RSA 72:23,V, and the provisions of this paragraph shall not be construed to waive any such claim. ' 28. MISCELLANEOUS This lease is to be construed as a New Hampshire lease; is to take effect as-a sealed instrument; sets forth the entire agreement between the parties; is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns; and may be cancelled, modified, or amended only by written instrument signed by both the State and the Lessee. Any and all modifications and/or amendments to this Lease shall require the approval of the Govemor and Council. Signature Page to Follow MWO Lease W Dateess Witness Date ^ (n /o*i Witness Date \AfQGeorge M: Bald, Commissioner Date Dept. Resources and Economic Development Page 15 of 15 Drew Landry, President Mount Washington Obsei^tory Duly Authorized eft Date ^^Scon^^ey, Executive^irector Mount Washington Obs^atory Duly Authorized Date Approved as.to form, substance, and execution 7 Attorney General's Office Date Approved by Governor and Executive Council at the D^j30 .2009 meeting, item # Attest: Secretary of State's Office End of Document ^-M \&* J^Mi V ̂ Sr-s:^ \ v. -•. m-.M ear ./ ■A WK/- .y\ ̂#N ei*«;i. \ :0:=t=»' iS r -TJ.t ta^srs■LVi . ?S7s«n m •■.M».w,w^u. rw* SagSTMffaw najT-puooR. p Maur.»uia4iWT«i • ax4 SLas-EXHIBIT-A ... „• flt wwigfow tUMwrr tunitgig ftfl, SECTION t "i.- • 3 Ant a. \3= fg* "A I Tim 'A m • / j§ ill • S'/ .;i 0-^ .■uy--. _. . . .. - -•—•• vu.nio.. wiiu. Tv>r»>> GROU>.iO • puy3g_ PI_^N !tgitS.Ssd:ya's^~ EXHIBITS'. •WMAT, VAltn* Morvfl MMncT* tm . CMS" m WUHMOTOH W«I«T ■UM1 , OBSERVATORY- • ggS^:~~^-r=L- : SPACE I ̂ rv>e Oi