EXHIBIT 10.10
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SHARED FACILITIES AGREEMENT
by and between
CAYUGA CATSKILL GAMING AUTHORITY
and
CATSKILL DEVELOPMENT, L.L.C.
Dated as of April 3, 2003
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS; UNDEFINED
TERMS........................................2
Section 1.1
Definitions...................................................2
ARTICLE 2
TERM................................................................5
ARTICLE 3
COVENANTS OF THE
AUTHORITY..........................................5
Section 3.1
Operating Covenants of the Authority..........................5
Section 3.2
Construction Covenant of Authority............................5
ARTICLE 4
OPERATING COVENANTS OF
CATSKILL.....................................5
ARTICLE 5
SHARED FACILITIES BUSINESS
BOARD....................................6
ARTICLE 6
MAINTENANCE, OPERATION, AND MANAGEMENT OF COMMON AREAS;
ALLOCATION OF
COSTS.................................................7
Section 6.1
Maintenance of Common Areas...................................7
Section 6.2
Lighting......................................................8
Section 6.3
Maintenance of Gaming Facility................................8
Section 6.4
Maintenance of Track Facility.................................9
Section 6.5
Use/Maintenance Easement Area E (Pedestrian Sky Bridge).......9
Section 6.6
Security......................................................9
Section 6.7
Employment of Contractors or Personnel........................9
Section 6.8
Parking.......................................................9
Section 6.9
Allocation of Costs..........................................10
Section 6.10
Rights of Authority to Common Areas.........................10
ARTICLE 7
JOINT MARKETING AND
ADVERTISING....................................10
Section 7.1
Joint Marketing..............................................10
Section 7.2
Promotion Fund...............................................10
ARTICLE 8
CONDEMNATION.......................................................11
Section 8.1
Notice of Condemnation.......................................11
Section 8.2
Condemnation of Casino Property..............................11
Section 8.3
Condemnation of Track Property...............................11
Section 8.4
Restoration or Replacement Obligation of Catskill............11
Section 8.5
Condemnation Award...........................................11
Section 8.6
Condemnation Disputes........................................12
(i)
ARTICLE 9
INSURANCE..........................................................12
Section 9.1
Casualty Insurance...........................................12
Section 9.2
Liability Insurance..........................................12
Section 9.3
Insurance Carriers: Form of Insurance Policies...............12
Section 9.4
Responsible for Respective Lots..............................13
Section 9.5
Waiver of Subrogation........................................13
Section 9.6
Blanket Policy...............................................13
ARTICLE 10
CASUALTY..........................................................14
Section 10.1
Notice and Restoration Obligations..........................14
Section 10.2
Insurance Proceeds..........................................14
Section 10.3
Razing of Damaged Property..................................14
ARTICLE 11
TRADE AND SERVICE
MARKS...........................................15
Section 11.1
The Authority's Trade and Service Marks.....................15
Section 11.2
Catskill's Trade and Service Marks..........................15
Section 11.3
Confidentiality; Exclusivity................................16
ARTICLE 12
DEFAULT, TERMINATION, DISPUTES AND
ARBITRATION....................16
Section 12.1
Default.....................................................16
Section 12.2
Mutual Termination..........................................17
Section 12.3
Waiver of Sovereign Immunity; Disputes; Arbitration.........17
Section 12.4
Indemnity...................................................18
Section 12.5
No Personal Liability.......................................19
ARTICLE 13
MECHANIC'S
LIENS..................................................19
ARTICLE 14
INTENTIONALLY DELETED
ARTICLE.....................................19
ARTICLE 15
MISCELLANEOUS
PROVISIONS..........................................19
Section 15.1
Government Savings Clause...................................19
Section 15.2
Third Party Beneficiary.....................................19
Section 15.3
Authorization...............................................20
Section 15.4
Relationship................................................20
Section 15.5
Notices.....................................................20
Section 15.6
No Waiver...................................................20
Section 15.7
Successors and Assigns......................................21
Section 15.8
Article and Section Headings................................21
Section 15.9
Choice of Law...............................................21
Section 15.10
Termination and Amendment..................................21
Section 15.11
Excusable Delays...........................................21
Section 15.12
Severability...............................................22
Section 15.13
Counterparts...............................................22
Section 15.14
Effective Date.............................................23
EXHIBITS
Exhibit A
Track Property
Exhibit B
Casino Property
Exhibit C
Site Plan
(ii)
INDEX OF DEFINED TERMS
Arbitrator......................17
IGRA..................................3
Authority .....................1,2
Improvements..........................3
Authority's Marks...............15
Insurance Proceeds...................14
Award...........................11
Insured Casualty.....................14
Casino Property..................1
Landscape Improvements................3
Catskill.........................1
Lot...................................3
Catskill's Marks................15
Management Agreement..................4
Common Areas.....................2
Manager...............................4
Common Utility Facilities........2
Marketing Program....................10
Compact..........................2
Nation................................1
Condemn .........................2
Obligation ...........................4
Condemnation ....................2
Occupant..............................4
Condemnee ......................11
Parking Areas ........................4
Condemnor.......................11
Permitees ............................4
Declaration of Covenants.........2
Person................................4
Development Agreement ...........2
Plans and Specifications .............4
Easement Areas...................2
Promotion Fund ......................10
Enterprise ......................3
Property..............................4
Exclusive Use Area...............2
Restrictions..........................4
Gaming...........................2
Shared Costs.........................10
Gaming Authority.................2
Shared Facilities Business Board......4
Gaming Enterprise ...............3
Site Plan ............................4
Gaming Facility................1,3
Track Facility .....................1,4
Government Regulations...........3
Track Property........................1
(iii)
SHARED FACILITIES AGREEMENT
THIS SHARED FACILITIES
AGREEMENT (this "AGREEMENT") has been entered into as of
April 3, 2003, by and between CAYUGA
CATSKILL GAMING
AUTHORITY,
together with
its permitted successors and assigns, having an address c/o Cayuga
Nation of New
York, Post Office Box 11,
Versailles,
NY 14168, (the "AUTHORITY") and CATSKILL
DEVELOPMENT,
L.L.C., together with its permitted successors and assigns, having
an
address
at Route
17B,
P.O.
Box
5013,
Monticello,
New
York
12701-553
("CATSKILL").
RECITALS
WHEREAS,
Catskill
is
the
owner
of
certain
land
located
in the
city
of
Monticello, County of Sullivan, State of New York as shown by
shading on EXHIBIT
A attached hereto and made a part hereof (the "TRACK PROPERTY");
WHEREAS,
contemporaneously
with the effectiveness of this Agreement,
Catskill
shall
convey
land
adjacent
to the
Track
Property
located
in the
city of
Monticello, County of Sullivan, State of New York as shown by
shading on EXHIBIT
B attached
hereto and made a part hereof (the "CASINO
PROPERTY") to the United
States of
America to be held in trust for the
benefit of The Cayuga
Nation of
New York(the "NATION");
WHEREAS,
the Nation has established the Authority,
an
instrumentality
of the
Nation,
to which it has assigned its authority over the development and
conduct
of Gaming (hereafter defined) on the Casino Property;
WHEREAS,
the Nation and the Authority
contemplate
entering into a Land Lease,
pursuant to which the Nation shall lease its interest in the Casino
Property to
the Authority;
WHEREAS, it is intended by the Nation and the Authority that the
Authority shall
construct
and develop or cause to be
constructed
and
developed on the Casino
Property certain
buildings,
improvements and fixtures (the "GAMING
FACILITY")
for the purposes of
operating a Gaming
Enterprise
(hereafter
defined) on the
Casino Property;
WHEREAS,
Catskill
intends to operate and improve,
or cause the
operation and
improvement
of, the
existing
horse
racing
track and
incidental
facilities
located upon the Track Property (the "TRACK FACILITY");
WHEREAS, prior to the execution and delivery of this Agreement,
Catskill as the
owner of the
Property
(hereinafter
defined)
has
recorded a
Declaration
of
Covenants; and
WHEREAS,
the
parties
intend
that if there is a conflict
between
the terms,
conditions
and
provisions
of this
Agreement
and the terms,
conditions
and
provisions of the
Declaration,
the terms,
conditions,
and provisions of this
Agreement shall govern.
NOW,
THEREFORE,
in
consideration
of the
payment of Ten ($10) and the mutual
covenants,
conditions and promises herein contained and other good and
valuable
consideration,
the receipt and sufficiency of which are expressly acknowledged,
the Authority and Catskill hereby agree as follows:
ARTICLE 1.
DEFINITIONS; UNDEFINED TERMS
Section 1.1
DEFINITIONS.
For purposes of this
Agreement,
the following terms
shall have the following
meanings.
All capitalized terms used herein,
but not
otherwise defined in this Agreement, shall have the respective
meanings ascribed
to them in the Management Agreement.
A. "COMPACT" shall mean the nation-state compact, and any
amendments
or modifications thereto, to be entered into between the Nation and
the State of
New York pursuant to IGRA, or such other Compact as may be
substituted therefor.
B. "COMMON AREAS" shall mean those
portions of the Casino
Property
and Track
Property
that are
available
for the common
use,
convenience
and
benefit of the parties hereto including, without limitation, the
Easement Areas,
the Parking
Areas,
Common
Utility
Facilities,
and any walkways,
connecting
passageways,
lobbies,
public conveniences or sidewalks
incidental thereto and
all other Improvements thereon, all as shown on the Site Plan.
C.
"COMMON
UTILITY
FACILITIES"
shall
mean
all
storm
drainage
facilities,
sanitary sewer systems, gas systems, water systems, fire protection
installations,
electrical
power
cables and
telephone
lines
situated on the
Property used for the joint service of the Lots.
D.
"CONDEMNATION"
or "CONDEMN"
shall mean a taking of property or
possession thereof pursuant to the power of eminent domain, or any
conveyance in
lieu of eminent domain made by a party under the threat of
condemnation.
E. "DECLARATION OF COVENANTS" shall mean that certain Declaration
of
Covenants,
Conditions and
Restrictions,
dated as of the date as of which this
Agreement is made, executed by Catskill Development, L.L.C.
F.
"DEVELOPMENT
AGREEMENT"
shall
mean
the
Gaming
Facility
Development and
Construction
Agreement,
dated as of the date as of which this
Agreement is made,
among the
Authority,
the Nation,
and
Monticello
Raceway
Development Company, L.L.C., as the same may be amended from time
to time.
G.
"EASEMENT
AREAS"
shall mean,
collectively,
Easement
Area A,
Easement
Area B,
Easement Area C, Easement Area D, Easement Area E (Pedestrian
Sky
Bridge),
Easement
Area F,
Easement
Area G (the Bus Staging Area and Bus
Drop-off Area), all as shown on the Site Plan.
H.
"EXCLUSIVE
USE AREA" shall mean those
portions of the Property
which are or may
become for the
exclusive
use of the
Occupant
of the Lot on
which they are located, as shown on the Site Plan.
I. "GAMING" shall mean any and all activities defined as Class II
or
Class III Gaming under the IGRA or authorized under the Compact.
J. "GAMING
AUTHORITY"
or
"AUTHORITY"
shall mean Cayuga
Catskill
Gaming Authority.
2
K. "GAMING
ENTERPRISE"
or
"ENTERPRISE"
shall mean any commercial
enterprise of the
Authority
authorized by IGRA and/or the Compact and operated
on the Casino
Property;
and any other lawful
commercial
activity
related to
Gaming allowed in the Gaming Facility
including,
but not limited to, automatic
teller
machines
and
subject to any
applicable
governmental
or
contractual
limitations,
the sale for individual
consumption of food, beverages,
tobacco,
gifts and souvenirs but excluding any
franchised or licensed
vendors
paying a
fee to the Gaming
Enterprise.
It is
acknowledged
by the parties
hereto that
"Gaming Enterprise" shall exclude any wagering activities related
to the outcome
of any
horse
racetrack
or
horse
racing
contest
conducted
off the
Casino
Property;
PROVIDED,
however, that if a horse racetrack or horse racing contest
has not been
conducted on the racetrack
that
comprises a portion of the Track
Property at any time during a
consecutive
twenty-four
(24) month period or if
such racetrack has been abandoned and not reoccupied within seven
(7) days after
notice
from the
Authority
to the
record
owner of the
Track
Property,
the
foregoing
prohibition
against
racetrack
wagering
activities
on the
Casino
Property shall (subject to applicable Legal Requirements) be of no
further force
or effect. The Gaming Enterprise includes any building or
accommodation used for
Gaming on the Casino
Property and related
on-site retail sales and services on
the Casino Property.
The Authority shall have the sole proprietary
interest in
and
responsibility
for the
conduct
of all
Gaming
conducted
by the
Gaming
Enterprise subject to the rights and
responsibilities
of the Manager under the
Management Agreement.
L. "GAMING
FACILITY"
shall mean the buildings,
improvements,
and
fixtures,
now or
hereafter
located on the Casino
Property
within
which the
Gaming Enterprise will be housed.
M.
"GOVERNMENT
REGULATIONS"
shall
mean all
present
and
future
governmental laws, statutes, codes, ordinances, rules, regulations,
limitations,
restrictions,
orders, judgments and other governmental
requirements applicable
to the Property.
N. "IGRA" shall mean the Indian
Gaming
Regulatory
Act of 1988, PL
100-497,
25 U.S.C. ss. 2701 et seq. as same may, from time to time, be
amended.
O.
"IMPROVEMENTS"
shall
mean
all
structures
and
appurtenances
thereto
of every
type and kind,
including,
but not
limited
to,
buildings,
outbuildings,
huts, horse racing tracks, kiosks, garages, tunnels,
underground
installations,
irrigation and drainage devices or systems,
fountains,
fences,
screening
walls,
retaining
walls,
gateways,
porte
cocheres,
skybridges
(including
the skybridge
anticipated to be located in Easement Area D shown on
the Site Plan),
Parking Areas, Bus Staging Areas,
Bus Drop-off Areas,
loading
areas,
poles,
stairs,
escalators,
decks,
light standards,
signs,
benches,
walkways and Landscape Improvements.
P. "LANDSCAPE IMPROVEMENTS" shall mean any plantings,
ground cover,
trees and
shrubbery
now or hereafter
existing in Easement Area A and Easement
Area B shown on the Site Plan, all foundation planting areas and
the Bus Staging
Area and the Bus Drop-off
Area
together
with any
alterations,
systems,
and
equipment
installed
in order to enable
reasonable
irrigation,
lighting
and
maintenance of the plantings, ground cover, trees and shrubbery.
Q. "LOT" shall mean either the Casino Property or the Track
Property
as the context requires,
but shall not include streets or alleys that have been
dedicated to and accepted by any governmental
agency having jurisdiction in the
matter.
3
R. "MANAGER" shall mean Monticello Casino Management, L.L.C., or
any
successor thereto pursuant to the Management Agreement.
S. "MANAGEMENT
AGREEMENT" shall mean the Gaming Facility Management
Agreement,
dated as of the date as of which this
Agreement is made,
among the
Authority, Manager and the Nation, as the same may be amended from
time to time.
T.
"OBLIGATION"
shall
have
the
meaning
ascribed
to it in
the
Declaration of Covenants.
U. "OCCUPANT" shall mean,
collectively,
the record owner of either
Lot and any Person from time to time
entitled to the use and
occupancy
of any
portion of the Property
under any lease,
license or concession
agreement,
or
other similar instrument or arrangement.
V.
"PARKING
AREAS"
shall mean those
portions of the Property set
forth on the Site Plan used for parking of motor
vehicles,
including,
without
limitation,
incidental and interior roadways and driveways, walkways, curbs and
landscaping
within
the
areas
used
for
such
parking,
together
with
all
improvements
which at any time are erected thereon (as the same may be expanded
or diminished).
W.
"PERMITEES"
shall
mean
all
Persons
which
may
utilize
the
Property,
including,
without
limitation,
Occupants
and
their
respective
employees, agents, contractors, service people, customers and
invitees.
X. "PERSON"
shall mean any
individual,
corporation,
partnership,
limited liability
company,
joint venture,
association,
joint-stock
company,
trust,
unincorporated
organization,
government
or any
agency
or
political
subdivision thereof or any other entity.
Y. "PLANS AND SPECIFICATIONS" shall have the meaning assigned in
the
Development Agreement.
Z. "PROPERTY" shall mean, collectively,
the Casino Property and the
Track Property.
AA. "RESTRICTIONS" shall mean the easements, covenants,
conditions,
restrictions,
liens
and
charges
and
other
encumbrances,
now or
hereafter
established or imposed by or pursuant to the Declaration of
Covenants.
BB.
"SHARED
FACILITIES
BUSINESS
BOARD" shall mean the
committee
established pursuant to Article 5 hereof.
CC. "SITE PLAN" shall mean that certain plan for the
development of
the
Property
attached
hereto and made a part hereof as EXHIBIT C, as the same
may be changed from time to time.
DD. "TRACK
FACILITY"
shall have the meaning
ascribed to it in the
Recitals.
4
ARTICLE 2
TERM
The term of this Agreement shall commence on the
Commencement
Date (as defined
in the Management
Agreement) and, unless otherwise
terminated
pursuant to the
terms
of
this
Agreement,
shall
terminate
on
the
original
expiration
or
termination of the Management Agreement.
ARTICLE 3
COVENANTS OF THE AUTHORITY
Section 3.1 OPERATING
COVENANTS OF THE AUTHORITY.
Subject to the provisions of
Articles 8 and 10 hereof and to interruptions reasonably incident
to the conduct
of Gaming on the Casino Property, the Authority shall:
A.
continually
operate
or
cause
the
Gaming
Enterprise
to
be
continually
operated
on a
year-round
basis,
seven
(7)
days a
week
or as
otherwise operated pursuant to the terms of the Management
Agreement;
B. operate or cause the Gaming
Enterprise to be operated in a first
class manner
(including,
without
limitation,
the
maintenance
of sufficient
parking facilities);
C.
manage
and
operate
the
Gaming
Facility
under
a name to be
determined
by the
Shared
Facilities
Business
Board and under no other
name
without the prior
written
approval of Catskill,
which
approval
shall not be
unreasonably withheld; and
D. not use the Casino
Property for any other purpose other than the
conduct of Gaming
and any
incidental
entertainment,
parking,
restaurant
or
retail facilities in connection therewith.
Section 3.2 CONSTRUCTION COVENANT OF AUTHORITY.
The Authority covenants that it
shall develop and construct
the Gaming
Facility and make certain
renovations,
improvements
or
alterations
to the Track
Facility
free of defects
and in a
workerlike manner in accordance with the terms and provisions of
the Development
Agreement.
Catskill agrees that it shall look solely to the General
Contractor
to insure
that such work shall be free of defects and shall be
performed
in a
workerlike manner.
ARTICLE 4
OPERATING COVENANTS OF CATSKILL
Subject to the
provisions
of Articles 8 and 10 hereof and provided that Gaming
is being continuously
conducted on the Casino Property as provided in Article 3
hereof, Catskill shall:
A. from and after the date the Authority
completes the construction
contemplated
by the provisions of SECTION 3.2 hereof,
continually
operate the
Track Facility in a first-class
manner
consistent with operators of similar or
comparable racetrack facilities with a reasonable number of racing
days per year
and for other lawful purposes such as hotel,
entertainment,
retail, restaurant
and other similar uses other than Gaming as conducted on the Casino
Property and
industrial uses; provided that Catskill may conduct or operate any
lottery games
permitted
under
state law (e.g.
Quick Draw,
Pick 6, etc.) and slot
machines
5
permitted by state law provided the same is
incidental
to the use of the Track
Facility
as a racing
venue and such uses are
housed and
operated
within the
existing improvements; and
B. manage and operate the Track Facility under the name
"Monticello
Racetrack" or any
derivative
thereof and under no other name without the prior
written
approval of the Authority,
which
approval
shall not be
unreasonably
withheld.
Notwithstanding the above, Authority acknowledges that if at any
time during the
term hereof it is no longer commercially practical to operate the
Track Facility
as a racing
venue,
Catskill
may use the Track
Property
for any other lawful
purpose such as hotel, entertainment,
retail, restaurant and other similar uses
other than Gaming as
conducted
on the Casino
Property
and
industrial
uses,
provided
the same
does not
materially
adversely
interfere
with the use and
operation of the Casino Property and the Common Areas.
ARTICLE 5
SHARED FACILITIES BUSINESS BOARD
On or prior to the Issuance Date (as defined in the Development
Agreement),
the
Authority and Catskill shall establish the Shared Facilities
Business Board. The
Shared
Facilities
Business
Board
shall
be a
committee
consisting
of four
representatives,
two of whom are
appointed
by the
Authority,
one of whom is
appointed by Catskill
and one of whom is appointed by the Manager.
The members
of the Shared
Facilities
Business
Board
appointed by (a) the
Authority
and
Manager
shall (i) with
respect to the
Authority,
consist of the same members
appointed by it to the
Management
Business Board (as defined in the Management
Agreement)
and (ii) with
respect to Manager,
the member
appointed by Manager
shall be one of the same
members
appointed
by it to the
Management
Business
Board, and (b) Catskill shall be one of the same members
appointed by it to the
Development Business Board (as defined in the Development
Agreement). The Shared
Facilities
Business
Board
shall have the rights,
obligations
and powers set
forth
in
this
Agreement.
Except
as
otherwise
expressly
provided
in this
Agreement,
actions of the Shared
Facilities
Business
Board shall require the
affirmative vote of three members of the Shared
Facilities
Business Board. The
attendance
of three
members of the
Shared
Facilities
Business
Board at any
meeting
shall
constitute a quorum.
The Nation,
Catskill and Manager may each
change its respective
representatives to such board at any time,
provided this
Article 5 is complied with and notice is given in
accordance
with SECTION 15.5
hereof. Members of the Shared Facilities Business Board may
designate a proxy to
act on behalf of a named representative in the absence of such
representative to
the Shared
Facilities
Business
Board,
provided that such
designation
be in
writing by (x) in the case of the Authority,
the chairman of the Authority, (y)
in the
case
of
Catskill,
its
managing
director
or (z) in the
case of the
Manager, its managing director,
and that notice of such designation be provided
pursuant
to SECTION
15.5 of this
Agreement.
Such
proxy
shall have the full
authority to act,
vote or consent on behalf of such
representative.
Except as
otherwise
expressly provided in this Agreement,
in order to be effective,
any
action of the Shared
Facilities
Business Board must be the result of agreement
by at least
three
(3)
members
of the
Shared
Facilities
Business
Board or
designees.
The Shared Facilities
Business Board shall remain active during the
entire term of this
Agreement.
The parties
hereby
agree to ensure that their
respective
representatives
to
the
Shared
Facilities
Business
Board
shall
cooperate
fully and to reach
agreement or compromise on all matters before the
Shared Facilities Business Board. In the event such agreement
cannot be reached,
the appropriate
action shall be determined in the manner provided in Article 12
6
hereof.
The parties shall cooperate in setting meeting schedules for the
Shared
Facilities
Business
Board
during
the
term
hereof.
Any
two
or
more
representatives of the Shared Facilities
Business Board shall have authority to
call a special
meeting of the
Shared
Facilities
Business
Board on three (3)
days' written notice (by facsimile or otherwise) to other
representatives
that
comprise the Shared Facilities Business Board on such date.
ARTICLE 6
MAINTENANCE, OPERATION, AND MANAGEMENT OF COMMON
AREAS; ALLOCATION OF COSTS
Section 6.1 MAINTENANCE OF COMMON AREAS.
A. The
Authority
shall,
or shall
cause the
Manager to, keep and
maintain the Common Areas on the entire Property including,
without limitation,
the Landscape Improvements between the Lots (and the Authority
shall have access
to the Track Facility for such purpose,
pursuant to and otherwise in accordance
with this
Agreement and the
Declaration of Covenants) in a good and safe state
of repair and in a clean and
orderly
condition
in keeping
with
commercially
prudent
standards
which
shall
include
(but
shall
not be
limited
to) the
following:
(i) All hard
surfaced
portions
of the Common
Areas
shall be
swept at
intervals
sufficient
to maintain the same in a clean and
safe
condition
and shall be kept
reasonably
clear of ice,
snow,
surface water, and debris before the Gaming
Enterprise or the Track
Facility
shall
open
for
business
to
the
general
public
and
thereafter during such operation.
(ii) All sidewalks in the Common Areas shall be swept and washed
at
intervals
sufficient
to maintain
the same in a clean and safe
condition.
(iii) All trash and
rubbish
containers
located
in the Common
Areas
for the use of
Occupants
or
Permitees,
shall be washed at
intervals sufficient to maintain the same in a clean condition.
(iv) All
landscaping
in the
Common
Areas
shall be
properly
maintained,
including
removal of dead plants,
weeds,
and foreign
matter and such
replanting
and
replacement
as the
occasion
may
require.
(v) All hard surfaced markings
(including all parking striping)
in the Common
Areas shall be
inspected
at regular
intervals
and
promptly
repainted as the same shall become unsightly or indistinct
from wear and tear or other cause.
(vi) All sewer catch basins in the Common Areas shall be cleaned
on a
schedule
sufficient
to
maintain
all sewer
lines in a free
flowing condition.
All mechanical
equipment and storm and sanitary
sewer
facilities
shall be regularly
inspected
and kept in proper
working order.
(vii) All asphalt
paving in the Common Areas shall be inspected
at regular
intervals and
maintained
in a
first-class
condition,
which
maintenance
shall include patching and repair of chuckholes,
7
potholes
and
cracks
as they
appear
from
time to time and shall
include repaving if necessary.
(viii)
All
Common
Utility
Facilities
(including
all Common
Utility
Facilities in the Common Areas) shall be kept in good order
and repair.
(ix) All
directional
signs and
pavement
signs in the
Common
Areas shall be kept distinct and legible.
(x) All
lighting
and light poles in the Common
Areas shall be
kept in good order and repair (including repainting), and all
tubes,
ballasts, and bulbs shall be replaced as necessary.
(xi) All Common Area
stairways,
paths and
entrances,
if any,
shall be (a) swept and washed at
intervals
sufficient
to maintain
the same in a clean and safe
condition,
(b)
inspected
at regular
intervals,
and (c) promptly
repaired
upon the
occurrence
of any
irregularities or worn portions thereof.
The plan
pursuant to which the Authority
shall
perform the above
obligations
(e.g.
commencement,
frequency)
shall
be
adopted
by the
Shared
Facilities
Business
Board from the plan
proposed
by the
Management
Business
Board (as
defined in the Management Agreement) for the Gaming Facility.
B. All
Improvements on and to the Common Areas shall be repaired or
replaced by the Manager with materials,
apparatus, and facilities of quality at
least equal to the quality of the materials,
apparatus, and facilities repaired
or replaced.
C. The parties hereto agree that the
maintenance
and repair of all
other
portions of the
Property
not covered by this Article 6 shall remain the
sole cost and
responsibility
of, with respect to the Casino Property only, the
Authority,
and with
respect
to the Track
Property
only,
Catskill
or their
designees;
PROVIDED HOWEVER, Catskill and the Authority shall maintain and
keep
the Track Property and Casino Property,
respectively,
in a good and safe state
of repair and in a clean and orderly
condition in accordance with
commercially
prudent business standards.
Section 6.2 LIGHTING.
During any period when the Gaming
Enterprise is open for
business
and for
commercially
reasonable
periods
of time
when
the
Gaming
Enterprise
is
closed,
if any,
Catskill
shall
keep or
cause to be kept the
Parking
Areas on the Track
Facility
well lighted
during the period from dusk
until dawn,
with a minimum
maintained
intensity of not less than one (1) foot
candle measured at ground level.
Section 6.3 MAINTENANCE OF GAMING FACILITY.
The Authority shall (or shall cause
the same to be performed) (a) keep and maintain the interior and
exterior of the
Gaming
Facility
in a good and safe state of repair and in a clean and
orderly
condition,
and (b) during any hours when (i) the Track
Facility
shall be open
for business or when Occupants occupying
seventy-five
percent (75%) or more of
the
floor
area of any
building
located
on the Track
Property
are open for
business
and
(ii)
the
Gaming
Enterprise
is open
for
business,
and for a
reasonable
period of time before and after such hours,
provide adequate light,
heat, ventilation and air conditioning to the Gaming Facility in
accordance with
commercially prudent standards.
8
Section 6.4 MAINTENANCE OF TRACK FACILITY.
Catskill shall keep and maintain the
interior and
exterior of the Track
Facility in
