UNIVERSITY OF HAWAI ‘I

OFFICE OF MAUNA KEA MANAGEMENT

MAUNA KEA COMMERCIAL TOUR USE

PERMIT NO. 

            This Permit Agreement, effective as of this ______ day of _____________, 20__, is entered into by and between the UNIVERSITY OF HAWAI‘I, by and through its Chancellor of the University of Hawai‘i at Hilo, hereafter called the “UH,” and TOUR COMPANY NAME., a Hawaii corporation, hereafter called the “Permittee,” whose business and mailing address is:  mailing address.

The UH and the Permittee are hereby collectively referred to as the “Parties.”

Under this Permit Agreement (“Permit”), the Permittee is permitted to enter, beginning on the ________ day of _________________, 20__ and ending on ending date, unless sooner terminated, such portions of that certain parcel of Government land and any improvements located thereupon, as may be designated by the Office of Mauna Kea Management, situated within the University of Hawai‘i Management Area, Mauna Kea, Hamakua, Hawaii further identified as Tax Map Key:  3rd/4-4-15:09 & 12 as indicated on the map attached hereto and made a part hereof.

THIS PERMIT IS GRANTED UNDER THE FOLLOWING CONDITIONS:

A.           DEFINITIONS

      “1995 Management Plan” means Revised Management Plan for the UH Management Areas on Mauna Kea approved by the Board of Land and Natural Resources on March 10, 1995.

         “4-wheel drive type vehicle” means a vehicle that provides power to front and rear axels and has low range capability. 

         “Assignment” means: (1) any proposed changes in ownership or control of the entity comprising the Permittee, (2) mergers, joint ventures, contracts, agreements, or other arrangements, under which another entity acquires or is delegated any responsibility or authority to conduct any aspect of the Permittee’s commercial tour operations, and (3) any sale, conveyance, or other transfer of interest under this permit, whether by operation of law or otherwise.

         “Commercial activity tours”:

1.             Means the transport of passengers to and from the Premises by the Permittee in authorized vehicles for purposes of viewing, walking, and touring the Premises, including sightseeing, stargazing, and observing all types of atmospheric and space conditions. 

2.             Shall include Day tours, Evening tours, Sunrise tours, and Combination tours.

3.             Do not include the transport of passengers for any activities other than commercial activity tours, such as hunting, snow play, biking, and parasailing.

4.             Shall not include the sale of products, including food and souvenirs, while on or within the Premises (such sales must occur outside of the Premises and be part of the price of the Tour). 

         “Customer” means an individual who: (1) is an invitee of the Permittee, (2) has paid consideration to the Permittee for services or activities, or (3) is transported by the Permittee to any location within the Premises.

         “Hale Pohaku Mid-level facilities” means all the buildings, structures and lands within the 19.261 acres leased to the University of Hawai‘i identified at Tax Map Key 4-4-15: 12.

“Hazardous Materials” means and includes any chemical, substance, organic or inorganic material, controlled substance, object, condition, waste, living organism, or combination thereof which is, may be, or has been determined by proper state or federal authority under any environmental law to be hazardous to human health or safety or detrimental to the environment.  This term shall include, but not be limited to, petroleum hydrocarbons, asbestos, radon, polychlorinated biphenyls (PCBs), methane, fuels of any kind, and other materials or substances that are regulated by state or federal authorities.  “Environmental law” shall mean all federal, state and local laws of every nature including statutes, ordinances, rules, regulations, codes, notices, standards, directives of every kind, guidelines, permits, licenses, authorizations, approvals, interpretations of the foregoing by any court, legislative body, agency or official, judicial decisions, orders, rulings or judgments, or rules of common law which currently are in effect or which may come into effect through enactment, issuance, promulgation, adoption or otherwise, which in any way pertain to, relate to, or have any relevance to the environment, health or safety.  These environmental laws include, but are not limited to, regulations and orders of the federal Environmental Protection Agency and of the State of Hawaii Department of Health

         “OMKM” means the Office of Mauna Kea Management which is responsible on behalf of the UH to administer and manage the Premises.

         “Passengers” means customers who are transported by Permittee to any location within the Premises.  Permittee’s employees are not considered “passengers” for purposes of this Permit.

         “Permittee” is the entity that enters into a contractual agreement with the Office of Mauna Kea Management for a permit to operate commercial tours on the Premises.

         “Premises” means Mauna Kea Science Reserve, Summit Access Road, and the Hale Pohaku Mid-level facilities.

         “PUC” means Public Utilities Commission.

         “Science Reserve” means the Mauna Kea Science Reserve.

         “State” means State of Hawai ‘i.

         “Summit Access Road” means the roadway between the Visitor Information Station and the summit of Mauna Kea .

         “Tour” is defined as a single trip carrying passengers with one vehicle and includes the following:

“Combination tours” are defined as those tours that combine aspects of the day tours and the evening tours and are tours that arrive at the VIS to check in prior to 4:30 p.m., are not below the VIS and headed out of the Premises by 4:00 p.m., remain into the evening on or within the Premises, conduct activities, including, without limitation, star gazing activities, and by no later than 10:00 p.m. are below the VIS and headed out of the Premises.  A combination tour will be counted as an evening tour for purposes of the limits described in subparagraphs G3a(2) (Evening tours) and (6) (Maximum limit).

“Day tours” are tours that arrive at the VIS after 9:00 a.m. and by no later than 4:00 p.m. are below the VIS and headed out of the Premises.

“Evening tours” are defined as those tours that arrive at the VIS to check in no earlier than 4:30 p.m., remain on or within the Premises into the evening, conduct activities, including, without limitation, star gazing activities, and by no later than 10:00 p.m., are below the VIS and headed out of the Premises. 

“ Sunrise tours” are defined as those tours that arrive at the summit of Mauna Kea within thirty (30) minutes before sunrise and departs the VIS by 9:00 a.m. and heads out the Premises. 

         “Trip” is defined as a single tour to and from the Premises with a maximum of two vehicles per trip.

         “UH” means the University of Hawai ‘i.

         “Vehicle Size” is defined as follows:

“Standard Vehicle” is defined as a vehicle with an exterior body width of approximately 80 inches and a length of less than 240 inches.

“Modified Vehicle” is defined as a vehicle that may have a slightly larger passenger area than the Standard Vehicle and may be equipped with dual wheeled rear axles for safety.  The maximum exterior width of the passenger compartment must be 86” or less.  The maximum length of the entire vehicle must be approximately 260” or less, and the maximum width of the dual wheel fenders must be 98” or less. 

“Oversized Vehicle” means a vehicle which exceeds the width and length of a Standard Vehicle or Modified Vehicle. 

         “VIS” means the Visitor Information Station or its official name, Ellison Onizuka Center for International Astronomy at the Hale Pohaku Mid-Level Facilities.

B.      PURPOSE, PERMITTED USE, AND TERM

1.          Purpose.  The Permittee is permitted to ingress and use the Premises only for purposes of conducting:

COMMERCIAL ACTIVITY TOURS

2.          Term.  The term of this permit shall start on date, and end on date.  The Permittee understands and agrees that OMKM and the Mauna Kea Management Board (hereafter the “Board”) are in the process of establishing an updated commercial permit issuance structure, including the establishment of limitations on the volume, type, number, and frequency of activities that would be covered by commercial activity permits.  Once the permit issuance structure is finalized, and without limiting any rights of OMKM to terminate this Permit pursuant to other terms and conditions contained herein, the Permittee acknowledges that: (a) OMKM may terminate this Permit with thirty (30) days prior written notice, (b) upon such termination, the Permittee would then need to apply for a new commercial activity permit under the new commercial permit issuance structure, (c) the Permittee’s eligibility for a new commercial permit shall be determined pursuant to the new commercial permit issuance structure, (d) in determining the Permittee’s eligibility for a new commercial permit, OMKM need not consider that the Permittee may have been granted or possessed a commercial permit in the past for activity on or within the Premises, and (e) the Permittee does not and would not have any right, preference, or entitlement to a new commercial permit by virtue of having or possessing a commercial permit in the past.

At its sole option, OMKM may extend the Permit.  In determining whether to grant any extensions, OMKM may consider a number of factors, including, without limitation, the need to collect further data to assess the levels and types of commercial activity that may be permitted on or within the Premises.

3.          One permit limitation.  No person, company, business or entity may acquire or operate under more than one (1) permit.  If it is determined that a person, company, business or entity has violated this prohibition, after order to show cause, all Permits held or deemed to be constructively held by the offender will be immediately cancelled and any and all rights or benefits inferred or conferred by, or granted under any of the Permits shall likewise be terminated.  The OMKM may suspend the Permittee’s right to operate under the Permit and the effectiveness of the Permit pending the resolution of an order to show cause.

C.      FEES, PENALTIES, SECURITY DEPOSIT, INSURANCE AND INDEMNIFICATION

1.          Monthly fee.  The Permittee shall pay to OMKM a monthly Permit fee of the greater of (a) ONE THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($1,200.00) (“Minimum fee”) or (b) $6.00 per passenger in each vehicle used by the Permittee to transport passengers to any location within the Premises, including, without limitation, the VIS and/or summit of Mauna Kea (“Per passenger fee”)  This monthly fee shall be payable by the Permittee to OMKM at OMKM’s office located at 640 N. Aohoku Place, Hilo, Hawaii  96720, by the 10^th calendar day following the end of each month in which the commercial activity tours were conducted during the term of this Permit.  If the 10^th day falls on a weekend day or a holiday, payment is due the next business day. 

2.          Interest on overdue payments.  The Permittee shall be required to pay interest on any and all unpaid or delinquent  fees and charges, including the Permit fee, the Minimum fee, and the Per passenger charge, in the amount of one percent (1%) per month.  The Permittee shall also be assessed a service charge of ONE HUNDRED AND NO/100 DOLLARS ($100.00) for any month that the Permittee fails to fully pay, or is delinquent or late in making, any payments required under this Permit.

3.          Fee level adjustments.  The Permittee acknowledges and agrees that OMKM may increase or decrease the Permit fees, including the minimum monthly fee and the per passenger charges upon written notice at least thirty (30) days prior to the effective date of change in Permit fees.  The Permittee acknowledges and agrees that (1) the cost of providing services within the Premises (including, without limitation, portable toilets, roadway maintenance, snow removal, and VIS facilities) and all other costs that OMKM determines to be attributable or that should be attributable to commercial tour activity (including, without limitation, improvement and capital costs (such as repair and renovation of the Hale Pohaku Mid-level facilities) and costs to conduct studies (such as impact and evaluation studies) and prepare plans (such as master or regional plans) will be considered by OMKM in determining the fees payable by the commercial operators (such as the Permittee) to conduct commercial tour activities within the Premises and (2) the fees payable by the commercial operators, including the Permittee, at a minimum, will be sufficient to cover all such costs, including, without limitation, all costs of providing services within the Premises.  

4.          Security deposit.  Upon execution of this Permit, the Permittee shall deposit with OMKM the sum of $3,600.00 as security for the full and faithful performance of all of the Permittee’s obligations under this Permit.  The Permittee shall not be entitled to a return of any portion of the security deposit unless and until OMKM determines, in its reasonable discretion, that the Permittee has fully performed and complied with all of the Permittee’s obligations under this Permit.

5.          Tax clearances required.  The Permittee shall submit tax clearances from the County of Hawai ‘i, the State, and the Internal Revenue Service within one month from the date of the issuance of the Permit.  Failure to comply with this requirement shall be grounds for immediate suspension, termination or cancellation of the Permit, at OMKM’s sole discretion.

6.          Insurance.  The Permittee shall obtain and maintain at all times during the entire period of this Permit, Commercial General Liability insurance covering premises, operations, fire damage, independent contractors, blanket contractual liability, personal injury and advertising injury in the amounts of $1,000,000.00 per incident and $2,000,000.00 in the aggregate.  The insurance required herein shall be procured at the Permittee’s sole cost and expense, with an insurance company or companies acceptable to the UH.  The policy shall contain the following three clauses:

a.       “This insurance shall not be canceled, limited in scope of coverage or non-renewed until after 30 days written notice has been given to the Office of Mauna Kea Management.”

b.       “It is agreed that any insurance maintained by the UH or the State will apply in excess of, and not contribute with, insurance provided by this policy.”

c.       “The UH and the State are named as additional insureds.”

             The Permittee shall deposit with OMKM, on or before the effective date of the Permit, copies of all insurance policies or certificates of insurance and additional insured endorsements necessary to meet the requirements of this section and to keep such insurance in effect and the certificates therefore on deposit with OMKM during the entire term of this Permit.  The Permittee is required to submit to OMKM copies of the policy renewal seven days prior to the expiration of the existing policy.

             The procuring of such required policy or policies of insurance shall not be construed to limit the Permittee’s liability thereunder nor to fully meet or fulfill the Permittee’s indemnification obligations under this Permit.  Notwithstanding said policy or policies of insurance, the Permittee shall be obligated for the full and total amount of any damage, injury, or loss arising from any of the Permittee’s acts or omissions under or with respect to this Permit.

             OMKM and the UH shall retain the right at any time to review the type, form, and amount of the insurance coverage required.  If, in the opinion of OMKM, the insurance provisions in this Permit do not provide adequate protection for the UH or the State, OMKM may require the Permittee to obtain additional insurance sufficient in coverage, form, and amount to provide adequate protection.  OMKM shall notify the Permittee in writing of changes in the insurance requirements. If within ninety (90) days of receipt of such notice, the Permittee does not deposit copies of insurance policies or certificates thereof containing the required changes and that are acceptable to OMKM, OMKM may suspend or terminate this Permit.

7.          Failure to comply.  Unless otherwise specified in this Permit, if the Permittee fails to comply with conditions of this Permit, or fails to perform as required under this Permit, OMKM may assess a charge of $20 per day for every day that the Permittee fails to comply or perform after receiving notice from OMKM.  OMKM may also assess a $100 service charge for any month that the Permittee fails to comply or perform as required or requested by OMKM.   OMKM may adjust or amend any and all fees and charges that may be assessed against the Permittee under this Permit but must first give the Permittee at least thirty (30) days prior written notice of any proposed adjustments or amendments.

8.          Litigation costs.  In case OMKM, the Board, the UH, or the State shall, without any fault on their part, be made parties to any litigation commenced by or against the Permittee (other than condemnation proceedings), the Permittee shall pay all costs, including reasonable attorney’s fees and expenses incurred by or imposed on OMKM, the Board, the UH, and the State; furthermore, the Permittee shall pay all costs, including reasonable attorney’s fees and expenses which may be incurred by or paid by the UH in enforcing the terms and conditions contained in this Permit, in suspending or terminating this Permit and ensuring that the Permittee no longer conducts the activities that had been permitted, or in the collection of delinquent Permit fees, taxes, and any and all other charges.

9.          Refusal to stop.  If the Permittee conducts commercial tour activity, transports any passenger to any portion of the Premises, or otherwise conducts business in relation to the Premises during a period of time that the Permittee does not have the right to conduct commercial tour activity within the Premises (such as during a period of time the Permit is suspended or after the Permit has expired or after the UH has terminated the Permit),  the Permittee shall pay to the UH, as liquidated damages, and not as a penalty, $2,000.00 per day for each day or portion thereof that the Permittee conducts such commercial tour activity, transports such passengers, or conducts such business in relation to the Premises.  The payment is in addition to any other rights or remedies the UH may be entitled to pursue for breach of contract, or for illegal ingress, including the right to evict the Permittee or prohibit entry into any portion of the Premises, without court action or the need to obtain a court order, and any and all costs related thereto shall be paid by the Permittee.

10.        Removal of Permittee.  Under this Permit, the Permittee shall only have the right to transport passengers in the conduct of its commercial activity tours over portions of the Premises designated by OMKM.  The Permittee shall have no right to occupy or have exclusive possession of any portion of the Premises or the right to construct or install any type of improvement or structure.  The Permittee shall not leave any vehicles, equipment, materials, or personal property on or within the Premises.  The UH and OMKM, or any of their agents and/or representatives may remove and dispose of, at the Permittee’s sole cost and expense, any and all of the Permittee’s vehicles, equipment, materials, and/or personal property left or remaining on or within the Premises, and the Permittee agrees to pay all costs and expenses of removal and disposition immediately upon demand by the UH.

11.        Care for public safety.  The Permittee shall at all times exercise and use due care for public safety and in conducting its operations, shall not endanger or unreasonably expose persons or property to risk of injury, damage, or death.

12.        Permittee’s indemnification.  The Permittee shall indemnify, defend, and hold harmless the OMKM, the UH and the State, and their respective officers, employees, agents, and persons acting on their behalf, from and against any and all claims, demands, suits, actions, causes of action, judgments, injunctions, orders, rulings, directives, penalties, assessments, liabilities, losses, damages, costs, and expenses (including, without limitation, attorney's fees and costs), arising from any claimed injury to or death of persons or damage to or destruction of property, including the Permittee’s property, resulting from or related to: 

a.       Exercise of rights.  The Permittee’s exercise of any of the rights and privileges herein granted;

b.       Act or omission.  Any act or omission of the Permittee, or any of the Permittee’s officers, employees, agents, representatives, vendors, suppliers, passengers, customers, and any other person acting for or on behalf of the Permittee or claiming by, under, or through the Permittee (hereafter collectively the “Permittee’s agents”);

c.       Comply with law.  Any failure of the Permittee or the Permittee’s agents to comply with, in whole or in part, any applicable federal, state, or county statutes, laws, ordinances, rules, regulations, orders, rulings, or directives; or

d.       Failure to perform.  Any failure by the Permittee or the Permittee’s agents, in whole or in part, to perform any of the terms and conditions of this Permit that the Permittee is obligated to perform.   

13.        Survival of obligations.  All of the Permittee’s obligations described in this paragraph C shall survive the expiration or termination of this Permit.

D.     REPORTS, FAILURE TO PERFORM, SUSPENSION, CANCELLATION AND/OR TERMINATION OF PERMIT

1.          Failure to perform or comply.  If the Permittee fails to comply with or fully perform in accordance with any term, condition, or covenant in this Permit, OMKM will send a written notice of such failure to the Permittee, including a warning that failure to take immediate corrective action and/or any further failure to comply with or fully perform in accordance with any term, condition, or covenant in this Permit may result in suspension or termination of the Permit.  If the Permittee fails to immediately correct such failure or further fails to so comply or fully perform, OMKM may suspend the Permittee’s right to conduct commercial tour activities under the Permit for up to three (3) days for the first failure and for a minimum of seven (7) days for each successive failure, at OMKM’s discretion.  The Permittee acknowledges and agrees that (a) OMKM is under no obligation to impose a suspension of any type prior to terminating this Permit and (b) nothing in this subparagraph D1 shall be interpreted to limit or restrict OMKM’s power or authority to terminate this Permit at any time, without cause, upon thirty (30) days prior written notice.   

2.          Daily reports.   The Permittee shall also submit to OMKM a daily vehicle and passenger report, in the form required by OMKM, and the daily report shall be dropped off at the VIS.   The Permittee acknowledges that it is aware and understands that (a) OMKM and the UH are assessing the impact of commercial activity on and to the Premises, including the Science Reserve, (b) a critical part of the assessment is the daily activity reports required to be submitted by the commercial operators such as the Permittee, and (c) the Permittee’s failure to submit the daily activity report will adversely impact the ability of OMKM and the UH to accurately assess the impact of commercial activity on and to the Premises.  As a consequence, the Permittee agrees that Permittee may be assessed: (a) a charge of $50 for every daily activity report that is not properly and timely submitted to OMKM and (b) an additional charge of $20 per day for every day that the Permittee fails to submit the daily activity report after receiving notice from OMKM.  Repeated failures by the Permittee to properly and timely submit the daily activity reports to OMKM may result in suspension or termination of this Permit.     

3.          Monthly reports.  By the tenth (10^th) day following the end of each and every month this Permit is in effect, the Permittee shall also submit to OMKM a monthly activity report, in the form provided by OMKM, covering all of the Permittee’s activities under this Permit for the prior month, including, without limitation, the number of passengers transported by the Permittee to any portion of the Premises.  As a consequence, the Permittee agrees that Permittee may be assessed: (a) a charge of $50 for every monthly activity report that is not timely and properly submitted to OMKM and (b) an additional charge of $20 per day for every day that the Permittee fails to submit the monthly activity report after the required deadline.  Repeated failures by the Permittee to properly submit the monthly activity reports to OMKM may result in suspension or termination of this Permit.

             If there is a difference in total passenger counts between the daily report total for the reporting month and the monthly report, OMKM will apply the daily passenger fee to the higher of the two counts.  If the monthly report count is less than the total daily report count, OMKM shall notify the Permittee and the Permittee shall pay the difference within five (5) days of the date of OMKM’s notice.

    The Permittee shall permit OMKM, at all reasonable times, access to all of the following created, kept, maintained, updated and prepared by or on behalf of the Permittee relating to this Permit, including operations on or involving the Premises:  books, ledgers, journals, accounts, records, reports, files and all information created, processed, maintained or stored electronically (such as on computer disks, files, software, hardware, and hard drives), including gross income tax reports and records showing daily sales, and all other financial, sales, gross receipts, cost and expense, capital expenditure and depreciation and amortization, and accounting information together with all pertinent Permit operation information (hereafter collectively the "Records").

At any reasonable time on twenty-four (24) hours' notice, the Permittee will permit a complete audit to be made by OMKM's accountant or by a certified public accountant retained by OMKM of the Permittee’s entire business affairs relating to the business conducted on, at, from, related to or connected with the Premises, for the term of the Permit, including the Records.  All of the Records shall be available for inspection by OMKM and any auditor or accountant retained by OMKM on the Island of Hawaii , State of Hawaii .

The Permittee will cooperate fully in the making of any inspection, examination or audit and provide copies to OMKM of the Records as may be requested or needed by OMKM, at the Permittee’s sole cost and expense.

If the Permittee fails to fully and promptly (within 24 hours of OMKM's request), comply with and satisfy the Permittee’s obligations hereunder, including furnishing the copies of Records requested by OMKM or OMKM's auditor or accountant, the Permittee shall be deemed in default of this Permit and OMKM shall have the right to assess additional charges against the Permittee pursuant to the Permit.

If such audit by OMKM's accountant or by a licensed independent certified public accountant retained by OMKM shall disclose that the required payments have been underpaid by 2% or more for any period under examination, OMKM shall, in addition to the remedies provided in this Permit, be entitled to reimbursement of all costs and expenses incurred in completing any such audit in addition to any deficiency (together with applicable interest, service charge and other charges) revealed or disclosed.  If such audit by OMKM's accountant or by a licensed independent certified public accountant shall disclose that the required monthly payments have been underpaid by 5% or more for the period under examination, OMKM shall have the right, in addition to all other rights OMKM may have under this Permit, upon ten (10) days' written notice to the Permittee, to terminate this Permit.

4.          Permittee cancellation.  The Permittee shall give the OMKM thirty (30) days prior written notice of the Permittee’s intent to cease operations under the Permit and to surrender this Permit.

5.          UH cancellation.  The UH, through OMKM, may terminate this Permit for any reason whatsoever, and without the need for any showing of cause, upon thirty (30) days prior written notice to the Permittee. 

6.          Non-payment.  If the Permittee’s failure to make payments of any fees or charges required under this Permit persists or continues for a period of ten (10) days or more, the UH, through OMKM, may (a) immediately suspend the Permittee’s right to conduct commercial tour activity within the Premises for a period to be determined by OMKM or (b) terminate this Permit upon written notice to the Permittee at least five (5) business days prior to the termination.

7.          Failure to fully disclose.  The Permittee’s failure to comply with all terms and conditions imposed or required by the OMKM, including, without limitation, failing to fully disclose all material or relevant information in connection with any of the Permittee’s request or misstating, mischaracterizing, or mispresenting such information, shall constitute a material breach of this Permit and the OMKM may assess additional charges against the Permittee and/or suspend or terminate this Permit. 

8.          Prompt termination.  The OMKM may immediately prohibit the Permittee from conducting any further operations under the Permit if OMKM , in its sole discretion, determines that such immediate action is warranted due to the threat to any of the following within or on the Premises: (a) the ecosystems or biological systems, (b) the cultural and historical resources, (c) the science or educational related operations, including any UH operations, or (d) the observatories, facilities, structures, roads, and infrastructure.  In making this determination, OMKM may consider:  (1) complaints and the nature, severity, and credibility of these complaints, (2) conflicts with other users, or (3) the Permittee’s failure to fully perform or comply with the Permittee’s obligations under the Permit.

9.          Not eligible for permit.  If this Permit is terminated, in whole or in part, because of the Permittee’s failure to fully perform or comply with its obligations under this Permit, the Permittee will not be eligible for a commercial permit for a period of five (5) years.

E.      COUNTY, STATE & FEDERAL REGULATIONS

1.          Compliance with laws.  The Permittee shall observe and comply with all applicable federal, state, and county statutes, laws, ordinances, rules, regulations, orders, and directives, whether presently in effect or subsequently enacted, that affect the Premises or the Permittee’s use of the Premises, or any of the Permittee’s operations under or related to this Permit.

2.                   Obligation to report.  If situations develop or incidents occur within or on the Premises that the Permittee recognizes as posing a significant threat to persons, property, the ecosystems or biological systems, the cultural and historical resources, or science and educational related operations on or within the Premises, including any UH operations, the Permittee and any of the Permittee’s officers, employees, agents, or representatives, particularly the operators of the tour vehicles, shall first notify the OMKM rangers by contacting them by phone, radio, or other communication device at the following:

(808) 961-2180

If the OMKM rangers determine that the situations or incidents require further intervention, the OMKM rangers will contact the appropriate federal, state, or county departments, agencies, offices, and units, including, if deemed necessary, appropriate law enforcement personnel such as the State’s conservation enforcement officers (Department of Land and Natural Resources), the State’s sheriffs (Department of Public Safety), the county police officers (the Hawaii County Police Department) or federal agents (the FBI, ATF, or DEA). 

F.      MONITORING

1.          Commercial use.  OMKM will monitor the commercial activities occurring on or within the Premises and periodically assess the impact of such activities on the ecological, biological, cultural, and historic resources within the Premises.  At present, each Permittee is limited to making only the number of trips or tours per day permitted under subparagraph G3 (Allowable Number of Tours and Permit Holders).  In the future, it may be necessary to further limit the number of vehicle trips per day, the size and carrying capacity of the transport vehicles, the number of commercial operators, the number of passengers, the locations of the commercial operations, and the total number of Permits issued.

2.          Data reporting form.  With input from the Permittees, the OMKM shall develop a data reporting form that will reflect the type of information that needs to be collected for OMKM to properly analyze and assess the impacts of the commercial activity levels.  The reporting frequency, procedure, and submittal requirements shall be established by the OMKM and the Permittee shall comply with all such reporting requirements.

3.          Permittee cooperation.  The Permittee is aware of and acknowledges that the

OMKM is counting and will continue to count traffic to and from the upper elevations of the Premises.  Every vehicle owned, operated, or controlled by the Permittee, whether or not carrying passengers, shall check in at the Visitor Information Station (hereafter the “ VIS ”) before proceeding any further into the Premises.  The Permittee agrees to cooperate and comply with any procedures or processes that OMKM may use to collect data to be used in its impact assessment.  These procedures or processes may include:

a        Properly filling out and completing the registration book located in the Visitor Information Station.

b      Daily check-in with OMKM rangers to report any situations or incidents.  The Permittee acknowledges and agrees that frequent reports will help identify the problems earlier and expedite the search for solutions.

c.     Requiring the Permittees to provide (and encourage their customers to provide) feedback and suggestions regarding the tour activity and the Premises to OMKM, including, without limitation, distribution by the Permittees of feedback request forms during the tour activity, reminding customers of the importance of providing feedback to OMKM and completing and submitting the feedback request forms, giving the customers a realistic opportunity to complete and submit the feedback forms, and reporting to OMKM any verbal feedback obtained from the Permittee’s customers.  The Permittee will also encourage its customers to use suggestion boxes that will be placed in and around the VIS.

G.     OPERATING RULES WHILE ON UH LEASED LANDS

1.          General

a.     Seven days per week.  Under this Permit, the Permittee may conduct commercial activity tours seven (7) days a week, subject to weather conditions and such terms and requirements that may be imposed by OMKM.  The Permittee acknowledges that OMKM may, at any time, impose further limits on commercial activities on or within the Premises, including, without limitation, restricting commercial uses and activities to weekdays only.  Except for those situations requiring immediate action or restriction, OMKM shall notify the Permittee in writing of any further restrictions, limitations, or conditions at least thirty (30) days prior to the effective implementation date.  In situations of unforeseen events or emergencies, OMKM is not responsible for notifying Permittee in advance of the closure.  Permittee is responsible for contacting the VIS prior to departing the Permittee’s own facilities or prior to Permittee arriving at the VIS.  

b.     Road closure.  The Permittee is not allowed on the road when it is closed to the public.  The Permittee also acknowledges and agrees that OMKM may, in OMKM’s sole discretion, close any of the roads within the Premises at any time due to inclement weather, safety concerns, or other circumstances deemed by OMKM to justify closing of the roads.

c.     Registration required.  Upon arrival at the VIS , the Permittee shall register to inform OMKM of its presence on the mountain and within the Premises.

d.     Portable toilets.  The Permittee and its passengers and customers will be permitted to use portable toilets that will be provided by OMKM at the locations and in the numbers determined by OMKM.  To minimize any adverse impact to the Premises, the Permittee shall ensure that the Permittee’s agents, including its employees, customers, and passengers use only the designated portable toilet facilities provided by OMKM.   Failure of the Permittee and the Permittee’s agents to comply with this condition may result in suspension or termination of this Permit or such other operating restrictions or limitations as may be imposed by OMKM, in OMKM’s discretion.

e.     No building access.  The Permittee shall ensure that the Permittee’s agents, including its officers, employees, agents, representatives, passengers, and customers shall not enter any buildings or structures within the Premises except for designated public areas on the summit and the VIS.   Entry into other buildings or structures may be permitted only in the cases of emergency.

f.      Electronic devices.  Because of the potential impact on the scientific and educational operations, including the observatory operations, the use of electronic devices such as radio transmitters, cellular telephones, personal digital assistants (PDAs), laptops, and other wireless communication devices, will be restricted to emergency use only within the Science Reserve portion of the Premises.

g.     No animals.  Except for certified assistance animals for the disabled, such as hearing guide and seeing eye dogs, no animals shall be permitted or brought within the Premises.  

h.     Solid waste removal.  The Permittee  shall be responsible for appropriately removing from the Premises all solid waste, rubbish, trash, and other discarded items generated by the Permittee or the Permittee’s agents (such as the Permittee’s officers, employees, agents, representatives, passengers, and customers), including, without limitation, any solid waste generated by certified assistance animals for the disabled.

i.      Vehicle signage.  Tour operator vehicles shall comply with PUC regulations for vehicle signage requirements.

j.      Carry Permit.  The Permittee shall ensure that a designated employee on each tour activity within the Premises carries a copy of this Permit at all times when on the mountain or within the Premises.  Such designated employee shall produce and present such copy of the Permit upon request from any OMKM, VIS , or UH employee or any law enforcement personnel.

k.     No alcoholic beverages.  The possession, display, and consumption of alcoholic beverages is prohibited and the Permittee shall ensure that no alcoholic beverages of any kind are brought onto or within the Premises.

l.      No obstruction.  The Permittee shall ensure that the Pemittee’s agents and the Permittee’s commercial tour activities do not obstruct or unreasonably interfere with UH operations, any of the observatory, science, and educational activities within the Premises, other commercial activities, and other use and activities of the general public.

m.    Lasers.  Lasers with an output greater than 5 milliwatts are not allowed within the Premises

n.     Compliance with rules.  The Permittee and all of the Permittee’s employees, drivers, and passengers are required to comply with all VIS or OMKM rules and regulations.  The Permittee’s drivers shall be responsible for ensuring that the Permittee’s passengers comply with the applicable rules and regulations.  The Permittee shall be responsible for monitoring compliance and reporting any violations of the rules and regulations to the OMKM rangers.

o.     Restrictions on activities.  OMKM reserves the right to place restrictions on any commercial tour activities that OMKM deems inappropriate or which would negatively impact the natural or cultural resources, facilities or infrastructure within or adjacent to the Premises.

2.          Vehicles and Parking

a.       4-wheel drive vehicles only.  Only 4-wheel drive vehicles may be used to conduct commercial tour activities on the Summit Access Road and within the Mauna Kea Science Reserve. 

b.       Maximum vehicle capacity.  The maximum vehicle capacity allowed for vehicles used by the Permittee in conducting commercial activity tours shall be fourteen (14) people, excluding the driver. 

c.       Vehicles must be approved by OMKM.  The Permittee must obtain OMKM’s written approval prior to using any motor vehicle on a regular basis to conduct commercial activity tours on or within the Premises.  This requirement applies to all of the Permittee’s motor vehicles used in connection with the Mauna Kea commercial activity tours, including those that may have been used previously.  OMKM may require the Permittee to submit such information as OMKM deems necessary to evaluate whether to allow the Permittee to use specific motor vehicles, including, without limitation, a list of the make, model, and VIN number of each motor vehicle, photographs of each vehicle (side, front and back views), and copies of the motor vehicle registrations and no-fault insurance cards for each motor vehicle.

d.       Limitations on number of Vehicles in VIS parking lot.  At any given time, the Permittee is allowed a maximum of two (2) Standard Vehicles or one (1) Modified Vehicle in the VIS parking lot.  Oversized Vehicles are not allowed in the parking lot.  OMKM will monitor the use of the Oversized Vehicles and has the authority to limit the number of commercial vehicles allowed to park at the VIS or on the adjacent roadways at any one time.

e.       Oversized Vehicles.  Oversized Vehicles are not allowed on or within the Premises without OMKM’s prior written approval, which approval may be withheld at OMKM’s sole discretion

The Permittee may submit written requests to the OMKM at least two weeks in advance, to approve the use of Oversized Vehicles for specific days, subject, however, to the following:

(1)     OMKM under no obligation to grant approval.  OMKM shall be under no obligation to grant the Permittee’s request and may deny the Permittee’s in whole or in part or may grant all or a portion of the Permittee’s request.

(2)     OMKM may impose conditions on use.  In evaluating whether to grant any such approval, OMKM may impose such terms and conditions as OMKM deems reasonably necessary, including, without limitation, restricting the frequency or times that the Permittee may use any Oversized Vehicles, requiring the Oversized Vehicles to be equipped with additional safety features or measures, and imposing additional fees.

(3)     Initial conditions.  From and after the execution date of the Permit, the Permittee shall comply with the following relating to the use of Oversized Vehicles:

(a)     Intent to use.  The Permittee must notify OMKM in writing, no later than June 30, 2008, whether the Permittee (i) owns, leases, rents, or otherwise plans to use any Oversized Vehicles in connection with its commercial tour activities or (ii) plans to purchase or otherwise acquire Oversized Vehicles to use in connection with its commercial tour activities.  If the Permittee fails to notify OMKM in writing by June 30, 2008 of the Permittee’s ownership, lease, rental or intent or plans to use, purchase, or acquire Oversized Vehicles to use in connection with the Permittee’s commercial tour activities, the Permittee shall not be allowed to use any Oversized Vehicles in connection with its commercial tour activities.

(b)     Term of use.  If the Permittee properly satisfies the prior written notice requirement in subparagraph G2c(3)(a) and the monthly notice requirement in subparagraph G2c(3)(a) herein, the Permittee, upon obtaining OMKM’s written consent, may use the Oversized Vehicles in connection with its commercial tour activities for a period not longer than two (2) years from the effective date of this Permit. 

(c)     Fees.  From the effective date of the Permit, the Permittee shall pay $50 per day per vehicle for every day that the Permittee uses an Oversized Vehicle to conduct the Permittee’s commercial tour activities.  Based on the frequency and volume of use of Oversized Vehicles requested by the Permittee and approved by OMKM monthly, the Permittee will pay this $50 per day per vehicle charge for the use of Oversized Vehicles in full prior to the start of the month in which the Permittee will be using the Oversized Vehicles. 

         OMKM reserves the right to increase the per day per vehicle fee one year from the date the vehicle was first put into service on Mauna Kea.

(d)     Reports.  The Permittee shall note on the daily, monthly, and annual reports required to be submitted by the Permittee to OMKM the dates that the Permittee used Oversized Vehicles and the number of Oversized Vehicles used.    

(e)     OMKM terms.  The Permittee acknowledges and agrees that OMKM may revise the terms relating to the use of Oversized Vehicles upon thirty (30) days prior written notice to the Permittee.  

(4)     Permittee must submit sufficient information.  The Permittee shall submit information sufficient to enable the OMKM to properly evaluate the Permittee’s request.

(5)     Permittee’s failure to comply.  The Permittee’s failure to comply with all terms and conditions imposed or required by the OMKM relating to the use of Oversized Vehicles, including, without limitation, failing to fully disclose all material or relevant information in connection with the Permittee’s request or misstating, mischaracterizing, or mispresenting such information, shall constitute a material breach of this Permit and the OMKM may assess additional charges against the Permittee and/or suspend or terminate this Permit.

f.        Maximum number of vehicles at the VIS.   OMKM will determine the maximum number of commercial vehicles that may be allowed to park at any one time at the VIS or on the adjacent roadways.

g.       Heavy use periods.  During periods of heavy use (frequently during weekends when there is snow), the number of commercial vehicles allowed in the Science Reserve portion of the Premises will be limited to a number determined by the OMKM.  The Permittee acknowledges that until further notice from OMKM, the maximum number of commercial vehicles allowed in or on the Premises at any one time shall not exceed eighteen (18).

h.       Authorized parking.  The Permittee shall ensure that the operators of its commercial tour vehicles are instructed to comply with, and do in fact follow, the directions of OMKM or VIS employees, including the OMKM rangers, in parking the tour vehicles and that such vehicles are parked in only authorized parking areas.  OMKM and the VIS shall use signage to designate authorized parking areas whenever feasible.

i.        Removal of disabled vehicles.  In the event any of the Permittee’s vehicles becomes disabled on or within the Premises or any area within the Mauna Kea area, the Permittee shall remove the vehicle within 48 hours.  If the vehicle poses a significant safety problem, as determined by the OMKM rangers, in their sole discretion, the Permittee shall make arrangements to have its disabled vehicle immediately removed from the Premises or other area of Mauna Kea .  Failure to timely do either will be deemed a breach of the terms of this Permit and may result in OMKM taking steps to remove the disabled vehicle and/or suspending or terminating this Permit.  OMKM will thereafter charge Permittee all expenses incurred by OMKM, including OMKM’s administrative and overhead costs. 

j.        Temporary vehicles.  The Permittee is allowed to use, on a temporary basis, a standard 4-wheel drive vehicle that is not part of the Permittee’s fleet of vehicles (and which may not have been registered with or approved by OMKM) for emergency use only, provided the Permittee provides OMKM and the PUC with a written description of the reason and need for such use, the type, make, model, and VIN number of the vehicle to be used, and the number of days the temporary vehicle shall be in use.  If the reason or need for a temporary vehicle is because a registered or approved vehicle was out for service for repair or maintenance, OMKM may require the Permitee to submit evidence satisfactory to OMKM that the out-of-service vehicle was in fact being repaired.

k.       Headlights.  Headlights must be used at all times while vehicles are driven on the Summit Access Road.

3.      Allowable Number of Tours and Permit Holders

a.       Tour limitations. 

(1)      Restricted hours.  The Permittee shall not conduct any commercial activity tours at or to the summit or to the Science Reserve, including, without limitation, operating or sending any commercial vehicles or passengers, during the daily period from 30 minutes after sunset to 30 minutes before sunrise.  The Permittee shall not conduct any commercial activity tours at or to the Hale Pohaku Mid-level facilities, including, without limitation, operating or sending any commercial vehicles or passengers, during the daily period from 10:00 p.m. to two (21/2) hours before sunrise.

(2)      Evening tours.  Under this Permit, the Permittee may conduct up to a maximum of two (2) Tours per day for Evening tours. 

(3)      Day tours and Sunrise tours.  The Permittee shall not be entitled to a minimum number of Day tours or Sunrise tours.  OMKM will continue to monitor the activities and impact of these tours.  OMKM reserves the right to impose additional or modify existing conditions to these Day tour and Sunrise tour activities.  The Permittee shall submit to OMKM a written request for permission to conduct Day tours and/or Sunrise tours at least two (2) days prior to the date of the scheduled Day tour or Sunrise tour.  OMKM may approve such requests, if at all, on a first come, first served, space available basis, subject to the maximum limit of eighteen (18) commercial vehicles within the Premises at any one time.  If OMKM receives multiple requests for Day tours or Sunrise tours for any specific date, each Permittee requesting a Day tour or Sunrise tour will be limited to one Day tour or one Sunrise tour, unless and until OMKM determines that additional Day tours or Sunrise tours could or can be accommodated.  If such accommodation can be made, OMKM will approve any additional Day tours and/or Sunrise tours on a first come, first served, space available basis. 

(4)      Number of people per tour.  The total number of persons per tour and per vehicle, including the Permittee’s staff and customers, shall not exceed fifteen (15).  For special events, the Permittee may submit to OMKM a written request to exceed this maximum limit of fifteen (15) persons and use of Oversized Vehicles.  OMKM will evaluate such requests on a case by case basis and may or may not grant such approval at OMKM’s sole discretion.  The Permittee shall have no right or expectation to use such Oversized Vehicles.  In evaluating such requests, OMKM may impose such requirements and conditions as OMKM may deem necessary.  The Permittee may not exceed this maximum limit of fifteen (15) persons unless and until the Permittee obtains OMKM’s written approval. 

(5)      OMKM may implement amended schedule.  OMKM will monitor and periodically evaluate the commercial activity tours by the Permittee and the other permittees.  The Permittee acknowledges and agrees that based on such evaluations, OMKM may further restrict or decrease the number of commercial vehicles and commercial activity tours (including the evening tours, day tours, and combination tours), modify the schedule of permitted commercial activity tours, or impose such other limitations or restrictions on the commercial activity within the Premises as OMKM deems necessary.  OMKM will give the Permittee notice of any such reductions, restrictions, limitations, and modifications at least thirty (30) days prior to the effective date of the limitation.

(6)      Maximum limit.  The Permittee acknowledges and agrees that the number of commercial activity tours and commercial vehicles shall not exceed eighteen (18) within the Premises at any one time.  The Permittee also agrees not to engage in any activities, including bringing more tours and vehicles than (a) permitted under this Permit onto or within the Premises at any time or (b) that the UH and OMKM would consider inconsistent with the objectives of the 1995 Management Plan.

b.       Vehicle limitation.  The Permittee may only use one authorized vehicle per tour.  The Permittee may not use any accessory or support vehicles unless the Permittee obtain OMKM’s prior written approval. 

c.       Total number of permits.  The Permittee acknowledges that the maximum number of commercial permits for commercial tour activities on or within the Premises is nine (9).  The Permittee also acknowledges and agrees that OMKM may grant additional commercial tour permits or reduce the number of commercial tour permits.

d.       Special event visits.  The Permttee may submit written requests to the OMKM to conduct tours or visits beyond that permitted under this Permit, subject, however, to the following: (1) the OMKM shall be under no obligation to grant the request, (2) the Permittee’s request shall be for special event, one-time, or very infrequent intervals and shall not become a daily, multiple time, frequent, or regularly scheduled or held tour or visit, (3) the Permittee shall submit information sufficient to enable the OMKM to properly evaluate the Permittee’s request, (4) if the OMKM approves the request, the OMKM may impose such other terms and conditions on such approval as the OMKM deems necessary, and (5) the Permittee’s failure to comply with all terms and conditions imposed or required by the OMKM, including, without limitation, failing to fully disclose all material or relevant information in connection with the Permittee’s request or misstating, mischaracterizing, or mispresenting such information, shall constitute a material breach of this Permit and the OMKM may assess additional charges against the Permittee and/or suspend or terminate this Permit. 

4.      Conduct of Permittee and Customers

a.       Keep clean.  The Permittee shall keep all areas within the Premises and any facilities thereon or therein in a clean, sanitary and orderly condition.

b.       No nuisance.  The Permittee shall not make, permit, or suffer, any waste, strip, spoil, nuisance or unlawful, improper or offensive use of the Premises.

c.       Remove trash.  The Permittee shall be responsible for picking up all rubbish generated by its commercial tour activity, and remove it from the Premises.  Particularly if the Permittee provides food and drink to its customers, all food and drink containers and refuse shall be removed from the Premises, taken off the mountain, and disposed of properly.  If the tour is a special event authorized by OMKM, the Permittee shall pick up all rubbish generated by the activity, remove it from the Premises, and transport it back to the Permittee’s base of operations.

d.       Customers must comply.  The Permittee shall ensure that all of its customers comply with all applicable statutes, laws, ordinances, rules, and regulations.

5.      Hazardous Materials

a.       No hazardous material release.  The Permittee shall not cause or permit the presence, escape, discharge, disposal, or release of any hazardous materials, except as permitted by and in accordance with applicable environmental laws.  The Permittee shall not use, store, treat, dispose, discharge, release, generate, create, or otherwise handle any hazardous materials, or allow the same by any employee, agent, guest, customer, passenger, contractor or any third person, within or on the Premises without first obtaining the written consent of the OMKM (which consent may be withheld by the OMKM in its absolute discretion) and complying with all environmental laws, including giving all required notices, reporting to, and obtaining permits from, all appropriate authorities, and complying with all provisions of this Permit. 

b.       Permittee responsible for cleanup cost.  If the Permittee causes or permits the presence, escape, discharge, disposal, or release of any hazardous materials, except as permitted by and in accordance with applicable environmental laws, the Permittee shall be solely responsible for the cost of cleaning up and remediating, to the OMKM’s satisfaction and in strict compliance with all applicable environmental laws, any such hazardous materials that are present on or have escaped, been discharged or disposed of, or released onto or within the Premises by the Permittee or the Permittee’s agents.  In the event that any hazardous materials are used, stored, treated, or disposed on or within the Premises by the Permittee or the Permittee’s agents, or handled, discharged, or released by the Permittee or the Permittee’s agents, or determined to be present on or within the Premises due to actions or omissions of the Permittee or the Permittee’s agents, the Permittee shall, at its sole expense and cost, remediate the Premises of any such hazardous materials, and properly dispose/remove said hazardous materials in accordance with applicable environmental laws and direction from the OMKM.  This duty to remediate shall include replacement of any materials, such as soils, so removed with material that is satisfactory to the OMKM and governmental authority, as the case may be.  If the OMKM determines that any clean-up or remediation must take place immediately or if the Permittee does not timely commence clean-up or remediation efforts, the OMKM may commence and complete such clean-up and remediation and the Permittee shall, upon notice or demand from OMKM, immediately pay to the OMKM all costs incurred by the OMKM in such clean-up and remediation efforts.

c.       Hazardous material indemnity.  The Permittee shall indemnify, defend, and hold the OMKM, the UH, and the State harmless from and against any damages, losses, claims, and penalties resulting from or attributable to the presence, escape, disposal, discharge, release, use, treatment, storage, generation, creation, or handling of hazardous materials on or within the Premises occurring during the conduct of the Permittee’s commercial tour activities, or elsewhere if caused by the Permittee or persons acting under the Permittee.  These covenants shall survive the expiration or earlier termination of this Permit.

6.      Awareness and Safety

a.       High altitude hazards.  The Permittee shall be familiar with and shall ensure that the Permittee’s agents, (including its officers, employees, agents, and representatives) are familiar with the general conditions for high altitude hazards and driving and the lay of the land and the route, width, and alignment of the roads, particularly at the higher altitudes of the Premises and within the Science Reserve, including the location of turn off or turn out areas of safety along the roads and the location of potential hazards such as retaining walls and uneven terrain.  The Permittee shall appropriately notify, educate, and warn the Permittee’s agents (including its officers, employees, agents, representatives, passengers, and customers) regarding potential hazardous conditions that may be encountered on or within the Premises, particularly at the higher altitudes, including, without limitation, the possibility of high altitude sickness, the breathing difficulties that may be encountered, the uneven terrain, and the lay of the land.  The Permittee shall also ensure that the operators of its commercial tour vehicles are properly educated and informed with respect to safely driving the roads within the Premises and the potential risks and dangers that may be encountered when driving to the VIS , Science Reserve, or other areas within the Premises, particularly at the higher altitudes.

b.     Mountain driving.  The Permittee shall ensure that the operators of its commercial tour vehicles and any guides are informed, educated, and trained regarding the proper guidelines for mountain driving and emergency procedures.  The Permittee shall ensure that prior to beginning the commercial tour activity, the Permittee’s customers are properly warned of any hazards, particularly those relating to high altitude sickness and travel to high elevations. 

c.     Appropriately clothed.  The Permittee shall ensure that the Permittee’s agents, including its passengers and customers, are appropriately clothed and hydrated and have taken in an adequate amount of food.

d.     First-aid.  The Permittee shall ensure that all tour drivers/escorts used by the Permittee in connection with its commercial tour activities shall have, at a minimum, certification from an agency such as, but not limited to, the American Red Cross, that is certified to train and issue certifications for First Aid and Cardio-Pulmonary Resuscitation.  All tour drivers and/or escorts must carry their certification card while on the Premises.

H.     TRANSFERS AND ASSIGNMENT

1.          No Transfer.  The Permittee shall not assign, convey, sell, place in trust, mortgage, pledge, hypothecate, encumber, alienate, or otherwise transfer, whether voluntarily or involuntarily or by operation of law, any of the Permittee’s rights, obligations, or interests under this Permit, and shall not permit any other person or entity to use the Permit to conduct commercial tours on or within the Premises (except by way of devise, bequest or intestate succession, at no cost and without the payment of consideration and subject to OMKM’s prior written approval, hereafter collectively the “Bequest”) and shall not subcontract any of the Permittee’s rights relating to the transport of passengers on or as a part of commercial tour activities to, from, on or within the Premises (each of the foregoing actions (except the Bequest) being herein called a “Transfer”).  Any Transfer made in violation of this paragraph shall constitute a default and breach under this Permit and shall be void. 

2.          Changes in Permittee.  With respect to a corporation, partnership, limited liability company, or other entity that can be effectively controlled by the owners of a certain percentage of the stock or other ownership interests, whether 51% or more or less (“Controlling Interest Percentage”), a change in the ownership of such Controlling Interest Percentage shall constitute a Transfer.  If, after the date of this Permit, owners of stock or other interests in the Permittee transfer stock or an interest not itself a Transfer hereunder, make any further transfer which, in the aggregate together with such prior transfer(s) would constitute a transfer of a Controlling Interest Percentage, then such transfers collectively shall constitute a Transfer for purposes of this paragraph.  With respect to a limited liability company that can be effectively controlled by a designated manager, a change in the designated manager shall be deemed a Transfer.  The following shall also be a Transfer: (a) merger of the Permittee with any other entity, (b) the transfer of any Controlling Interest Percentage in the Permittee, or (c) the assignment or transfer of a substantial portion of the assets of the Permittee or the Permittee’s business, whether or not used in or attributable to the conduct of commercial tour activities on or within the Premises. 

3.          Permittee to report any transfer to OMKM.  Within ten (10) days of the effective date of this Permit, the Permittee shall submit to OMKM written evidence of the ownership of the Permittee, including, without limitation, the names of all owners and the percentage ownership of each owner.  The Permittee shall report to OMKM, prior to consummation or completion, each  transfer of any of the Permittee’s rights, obligations, or interests under this Permit, or any portion thereof, including, without limitation, any changes in the percentage ownership of the Permittee, any Assignment,  and any Transfers.  The Permittee shall report such transfers and Transfers to OMKM at least seven (7) days prior to consummating or completing said transfer or Transfer.  The Permittee’s report shall be submitted together with such supporting information as may be required by OMKM in order to enable OMKM to evaluate whether such actions or activities qualify as a Transfer.   

4.          Permittee’s failure to comply.  If the Permittee fails to timely report any such transfer or Transfer, or provides OMKM with inaccurate, false, or misleading information relating to such transfer or Transfer, OMKM may resort to such remedies as OMKM deems necessary or advisable, including, without limitation, immediate suspension or termination of the Permit and the Permittee’s right to conduct any commercial tours on or within the Premises. 

5.          Void if not properly approved.  Any Transfer made in violation of the foregoing provisions shall be void.  Any attempted Transfer shall be void and shall confer no right, title, or interest in or to this Permit, or right to conduct any commercial tour or other activity on or within the Premises, upon any such purported transferee or assignee. OMKM shall further have the right to terminate this Permit and to enforce such other remedies as are provided in this Permit.

6.          No property interest.  The Permittee and OMKM acknowledge and agree that (a) the Permittee shall have no property rights or interests under or in connection with this Permit, (b) the Permittee will not acquire any property rights or interest by virtue of having received its rights by way of a Bequest, and (b) OMKM, by permitting or consenting to any Bequest, is not conceding, admitting, or agreeing that the Permittee has any property rights or interests under or in connection with the Permit.  The Permittee hereby knowingly waives and releases any rights and claims that the Permittee has, may have, or hereafter acquire, to assert that this Permit or any of the Permittee’s rights hereunder constitute or comprise a property interest of any kind or type whatsoever.   

7.          Evidence to support Mauna Kea portion determination.  In the event of any transfer of any of the Permittee’s rights or interests under the Permit or any Transfer, the Permittee shall submit to OMKM a complete statement, certified by an independent certified public accountant or the Permittee’s chief financial officer, identifying and describing the amount of: (1) the Total Consideration, (2) the Price Received by the Permittee in connection with any transfer or Transfer, and (3) the Mauna Kea portion.  Such certified statement submitted by the Permittee shall be updated and current as of the date such certified statement is submitted to OMKM.  The Permittee acknowledges that the Permittee’s submission of such certified statement of the Total Consideration, the Price Received, and the Mauna Kea portion is a prerequisite to OMKM allowing the Permittee to continue commercial tour activities on or within the Premises.  OMKM plans to use these certified statements to verify whether the Permittee has engaged or participated in an unpermitted transfer or Transfer and is consequently in breach or default under this Permit.   

8.          Financial statements.  In connection with the Permittee’s report to OMKM covering the Permittee’s transfer of any rights or interests under this Permit, OMKM may require the Permittee to submit to OMKM copies of the Permittee’s financial statements (including, without limitation, balance sheet, income statement, statement of cash flows, and statement of changes in financial position) (hereafter collectively the “Financial statements”) that were audited by an independent certified public accountant covering at least the immediately preceding three (3) years.  In submitting the Financial statements, the Permittee’s chief financial officer shall certify and confirm that such audited Financial statements truly and accurately reflect the Permittee’s financial condition at the time they were prepared.  For recent periods that are not covered by the Financial statements or for which Financial statements will be or are being prepared, the Permittee may submit to OMKM unaudited Financial statements provided that the Permittee’s chief financial officer certifies and confirms that such unaudited Financial statements truly and accurately reflect the Permittee’s financial condition for the period covered by the unaudited Financial statements.

9.          Definitions.  “ Mauna Kea portion” means and includes the portion of the Permittee’s business that is attributable to commercial tour activity on or within the Premises.  “Total Consideration” means and includes the consideration received or to be received (including, without limitation, all money paid or to be paid and other consideration delivered or to be delivered to the Permittee by the Assignee such as cash, securities, real property, partnership or other ownership or profit interest, or any other asset, item, service, or thing of value) for the Permittee’s transfer of any rights or interest under this Permit (including, without limitation, any Transfers).  “Price Received” is calculated by prorating the Total Consideration based on the Mauna Kea portion to determine the amount paid by the transferee or assignee to the Permittee for the Mauna Kea portion. 

I.       OTHER CONDITIONS

1.          Improvements.  Except for portable telescopes, Permittee shall not be allowed to erect or place any improvements or equipment.  Permittee shall ensure portable telescopes are removed and transported off the Premises after each daily use.

2.          Inspection.  It is understood that the Permittee has inspected the Premises and knows the conditions thereof and fully assumes all risks incident to its use, particularly in areas where the Permittee plans to operate and conduct its commercial tour activities.  When needed, the Permittee shall provide flashlights or other artificial light for the safety of its officers, employees, agents, representatives, passengers, and customers, provided, however, that such artificial lighting or flashlights shall not interfere with or adversely affect any of the scientific or educational activities, including any observatory or UH operations.

3.          No discrimination.  The Permittee shall ensure that its commercial activity operations on or within the Premises and the Permittee’s use of the Premises shall not be in support of any policy that discriminates against anyone based upon race, creed, color, sex, national origin, religion, marital status, familial status, ancestry, physical handicap, disability, age or HIV (human immunodeficiency virus) infection.

4.          No Mauna Kea Ice Age Natural Area Reserve tours.  The Permittee acknowledges and agrees that there shall be no tours to the Mauna Kea Ice Age Natural Area Reserve until such time as the Natural Area Reserve, OMKM, and Department of Land and Natural Resources’ Historic Preservation Division develops and implements a management plan.

J.      OMKM’s RIGHTS AND RESPONSIBILITIES

The following rights and responsibilities within the Premises are reserved to the OMKM.

1.          Right of entry.  The OMKM reserves the right for itself, its officers, employees, agents, representative, and any person acting for or on its behalf, and any other person authorized by OMKM to enter the Premises, to enter or cross any portion of the Premises at any time in the performance of its duties and responsibilities.

2.          No waiver.  The acceptance of any fees or charges under this Permit by the OMKM shall not be deemed a waiver of any breach by the Permittee of any term, covenant, or condition of this Permit nor of OMKM’s right to declare and enforce a suspension, termination, cancellation, or forfeiture for any breach, and the failure of the OMKM to insist upon strict performance of any term, covenant, or condition or to exercise any option herein conferred, in any one or more instances, shall not be construed as a waiver or relinquishment of any term, covenant, condition, or option.

3.          Science Reserve Access.  In controlling and maintaining the Mauna Kea Summit Access Road from the Hale Pohaku Mid-Level facilites to the summit and associated public parking areas, OMKM may exercise at least the following rights:

a.       Liability waiver.  The right to require a waiver of liability from each driver (commercial and private) before the vehicle is allowed to proceed to the upper elevations of the Premises.

b.       Crowd control.  The right and authority to control crowds at the VIS.

c.       Other rights.  Any other rights and authority OMKM deems necessary.

K.     DISPUTES

             Any and all disputes and/or questions arising under the Permit shall be referred to the OMKM and its determination regarding these disputes or questions shall be final and binding on the Parties. 

L.      MEETINGS

The OMKM reserves the right to call at least two (2) meetings per year at which all of the commercial activity tour permittees, including the Permittee, shall be required to attend.  The OMKM will give the permittees, including the Permittee, at least thirty (30) days prior written notice of such mandatory meetings, unless the OMKM determines that based on unanticipated circumstances, a mandatory meeting with less than thirty (30) days prior written notice must be held.  Failure to attend any such mandatory meeting shall be deemed a material breach of this Permit and the OMKM may thereafter suspend or terminate this Permit.

            IN WITNESS WHEREOF, the UH and the Permittee have caused these presents to be executed the day, month, and year first above written.

                                                                        UNIVERSITY OF HAWAI ‘I

By  ______________________________________

      Rose Y. Tseng

      Chancellor, University of Hawai ‘i at Hilo

PERMITTEE:

TOUR COMPANY NAME,

A Corporation

By  _____________________________________

Its  ­­­­­­­­­­­­­­­­_____________________________________

APPROVED AS TO FORM:

________________________

Associate General Counsel