Amended in Assembly April 18, 2016

Amended in Assembly March 30, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2249

Introduced by Assembly Members Cooley, Bigelow, and Gray

(Coauthors: Assembly Members Achadjian, Bloom, Brown, Dababneh, Dodd, Eggman, Cristina Garcia, Gipson, Obernolte, Olsen, Patterson, Salas, and Wagner)

February 18, 2016

An act to begin insert amend Sections 5080.05 and 5080.18 of, and to end insert add Section 5080.22 begin delete to end delete begin insert to, end insert the Public Resources Code, relating to state parks.

LEGISLATIVE COUNSEL’S DIGEST

AB 2249, as amended, Cooley. State parks.

Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist, and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.

begin insert

This bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the state’s trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.

end insert

This begin delete bill end delete begin insert bill, commencing January 1, 2017, end insert would prohibit a concession contract from begin delete being construed to provide end delete begin insert providing end insert a contracting party begin delete with, or serve as a basis for a legal claim or assertion that the contracting party has, end delete begin insert with end insert a trademark begin delete right or other financial or ownership end delete begin insert or service mark end insert interest in the name or names associated with a state park begin delete venue. end delete begin insert venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. end insert begin insert The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. end insert The bill would prohibit a bidder who makes that legal claim or begin delete assertion end delete begin insert assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, end insert from being awarded a concession contract within state begin delete parks, and would end delete begin insert parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would end insert render a provision of a concession contract begin delete that provides, or serves as a basis for a legal claim or assertion that the end delete begin insert that, on and after January 1, 2017, provides a end insert contracting party begin delete has, end delete begin insert with end insert a trademark begin delete right or other financial or ownership end delete begin insert or service mark end insert interest in the name or names associated with a state park begin delete venue end delete begin insert venue, or its historical, cultural, or recreational resources, end insert void and unenforceable.

begin insert

This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the state’s attorney fees, costs, and expenses if the concessionaire files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) National, state, and regional parks serve the public interest,
benefit California, and very often reflect historic significance that
earlier generations of Californians have attached to these sites.

(b) Yosemite National Park, located in California, is one of the
most important and majestic parks in the United States and is filled
with historic landmarks built several decades ago. The historic
nature of these landmarks as California heirloom destinations is
demonstrated by topographic maps of the Yosemite Valley dating
back to the 1950s, which include these venues.

(c) The Ahwahnee Hotel was built in the 1920s with a backdrop
of Half Dome. It was placed on the National Register of Historic
Places in 1977.

(d) Curry Village, in the Yosemite Valley, is named after a San
Francisco Bay area couple who established a summer camp there
in 1899. It was placed on the National Register of Historic Places
in 1979.

(e) The Wawona Hotel is a complex of seven buildings in the
southwest corner of Yosemite National Park. The first building,
then named “Long White,” was originally constructed in 1876.
The main hotel building originally opened in 1879. It was placed
on the National Register of Historic Places in 1975.

(f) California state park venues are held in public trust for the
people of California. A legal claim by an individual to have a
trademark right to a name or names associated with a venue within
a state park derogates the interests of California and the shared
history of Californians, and it is indicative of a lack of the
individual’s fitness to serve as a steward of the state’s cherished
cultural heritage and places.

(g) An agreement entered into by any California state agency
that compromises the interests of Californians is “ultra vires” and
therefore beyond that agency’s legal authority to enter.

(h) It is important that the Legislature clarify that an awarded
concession contract within California’s state parks does not give
the concessionaire a trademark right to the name or names
associated with a state park venue. Furthermore, a concessionaire
who makes a legal claim to have that trademark right should be
disqualified from further consideration as a bidder.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 5080.05 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

5080.05.  

begin insert (a) end insert begin insert   end insert Except as provided in Section 5080.16, all
contracts authorizing occupancy of any portion of the state park
system for a period of more than two years shall be awarded to
the best responsible bidder. begin delete “Best end delete

begin insert (b) end insert begin insert   end insert begin insert “Best end insert responsible bidder” means the bidder, as determined
by specific standards established by the department, begin delete which, end delete begin insert that, end insert
as determined by the department, will operate the concession (1)
consistent with the contract, (2) in a manner fully compatible with,
and complimentary to, the characteristics, features, and theme of
the unit in which the concession will be operated, begin delete and end delete (3) in the
best interests of the state and begin delete public. end delete begin insert public, and (4) in a manner
that protects the state’s trademark and service mark rights in the
names associated with a state park venue and its historical,
cultural, and recreational resources. For purposes of this section,
a bidder who would be subject to subdivision (b) of Section 5080.22
is not a best responsible bidder. end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 5080.18 of the end insert begin insert Public Resources Code end insert begin insert is
amended to read: end insert

5080.18.  

begin delete All end delete begin insert A end insert concession begin delete contracts end delete begin insert contract end insert entered into
pursuant to this article shall contain, but begin delete are end delete begin insert is end insert not limited to, all
of the following provisions:

(a) (1) The maximum term shall be 10 years, except that a term
of more than 10 years may be provided if the director determines
that the longer term is necessary to allow the concessionaire to
amortize improvements made by the concessionaire, to facilitate
the full utilization of a structure that is scheduled by the department
for replacement or redevelopment, or to serve the best interests of
the state. The term shall not exceed 20 years without specific
authorization by statute. Except as provided in Section 5080.16,
all renewals of concession contracts pursuant to this paragraph
shall be subject to competitive bidding requirements.

(2) The maximum term shall be 50 years if the concession
contract is for the construction, development, and operation of
multiple-unit lodging facilities equipped with full amenities,
including plumbing and electrical, that is anticipated to exceed an
initial cost of one million five hundred thousand dollars
($1,500,000) in capital improvements in order to begin operation.
The term for a concession contract described in this paragraph
shall not exceed 50 years without specific authorization by statute.
Except as provided in Section 5080.16, all renewals of concession
contracts pursuant to this paragraph shall be subject to competitive
bidding requirements.

(3) Notwithstanding paragraph (1), a concession agreement at
Will Rogers State Beach executed prior to December 31, 1997,
including, but not limited to, an agreement signed pursuant to
Section 25907 of the Government Code, may be extended to exceed
20 years in total length without specific authorization by statute,
upon approval by the director and pursuant to a determination by
the director that the longer term is necessary to allow the
concessionaire to amortize improvements made by the
concessionaire that are anticipated to exceed one million five
hundred thousand dollars ($1,500,000) in capital improvements.
Any extensions granted pursuant to this paragraph shall not be for
more than 15 years.

(b) Every concessionaire shall submit to the department all sales
and use tax returns and, at the request of the department, provide
an annual financial statement prepared or audited by a certified
public accountant.

(c) Every concession shall be subject to audit by the department.

(d) A performance bond shall be obtained and maintained by
the concessionaire. In lieu of a bond, the concessionaire may
substitute a deposit of funds acceptable to the department. Interest
on the deposit shall accrue to the concessionaire.

(e) The concessionaire shall obtain and maintain in force at all
times a policy of liability insurance in an amount adequate for the
nature and extent of public usage of the concession and naming
the state as an additional insured.

(f) Any discrimination by the concessionaire or his or her agents
or employees against any person because of the marital status or
ancestry of that person or any characteristic listed or defined in
Section 11135 of the Government Code is prohibited.

(g) To be effective, any modification of the concession contract
shall be evidenced in writing.

(h) Whenever a concession contract is terminated for substantial
breach, there shall be no obligation on the part of the state to
purchase any improvements made by the concessionaire.

begin insert

(i) If a concessionaire makes a legal claim or assertion to have
a trademark or service mark interest in violation of subdivision
(a) of Section 5080.22, the concessionaire shall forfeit the right
to bid on future state park concession contracts to the extent
authorized by federal law.

end insert begin insert

(j) If a current or former concessionaire files a federal or state
trademark or service mark application for a trademark or service
mark that incorporates or implies an association with a state park
venue, or its historical, cultural, or recreational resources, and
the state files a successful opposition or cancellation with respect
to that trademark or service mark application, the concessionaire
shall be responsible for the state’s attorney fees, costs, and
expenses associated with that opposition or cancellation.

end insert

begin delete SEC. 2. end delete

begin insert SEC. 4. end insert   

Section 5080.22 is added to the Public Resources Code,
to read:

5080.22.  

(a)  begin delete A end delete begin insert Commencing January 1, 2017, a end insert concession
contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23
shall not begin delete be construed to end delete provide the contracting party begin delete with, or
serve as a basis for any legal claim or assertion that the contracting
party has, end delete begin insert with end insert a trademark or begin delete other financial or ownership end delete begin insert service
mark end insert interest in the name or names associated with a state park

begin delete venue. end delete begin insert venue, or its historical, cultural, or recreational resources,
and shall not serve as the basis for any legal claim that the
contracting party has that interest. end insert

begin insert

(b) To the extent consistent with federal law, a bidder shall not
be awarded a contract pursuant to Section 5080.05, 5080.16, or
5080.23 if either of the following apply:

end insert begin delete

(b) A

end delete

begin insert (1) end insert begin insert   end insert begin insert The end insert bidder begin delete who makes end delete begin insert has made end insert a legal claim or assertion
to have a trademark or begin delete other financial or ownership end delete begin insert service mark end insert
interest begin delete described end delete in begin insert violation of end insert subdivision begin delete (a) shall not be
awarded a contract pursuant to Section 5080.05, 5080.16, or
5080.23. end delete begin insert (a). end insert

begin insert

(2) A court has determined that the bidder has made a legal
claim or assertion to have a trademark or service mark interest
in the name or names associated with a state or federal park venue,
or its historical, cultural, or recreational resources, without
reasonable cause and in bad faith.

end insert begin insert

(c) The department shall adopt regulations to provide a bidder
who is denied a contract award based on subdivision (b) with
written notice of that denial and an opportunity to rebut the basis
for the contract denial at a formal hearing.

end insert begin delete

(c)

end delete

begin insert (d) end insert  A provision of a contract or other agreement entered into
pursuant to Section 5080.05, 5080.16, or 5080.23 that violates
subdivision (a) shall be void and unenforceable.

begin insert

(e) This section shall not be construed to impact a contracting
party’s valid trademark or service mark rights that were held
before the concession contract was awarded. Subdivision (a) does
not constitute a change in, but is declaratory of, existing law.

end insert