BILL ANALYSIS Ó
AB 2249
Page 1
ASSEMBLY THIRD READING
AB
2249 (Cooley, et al.)
As Amended May 27, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Water |15-0 |Levine, Gallagher, | |
| | |Bigelow, Dababneh, | |
| | |Dodd, Gordon, | |
| | |Cristina Garcia, | |
| | |Gomez, Harper, Lopez, | |
| | |Mathis, Medina, | |
| | |Olsen, Salas, | |
| | |Williams | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
AB 2249
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|Appropriations |20-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Roger | |
| | |Hernández, Holden, | |
| | |Jones, Obernolte, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Enacts the California Heritage Protection Act, which
prohibits a concession contract from providing a contracting
party with a trademark interest in the name or names associated
with a state park. Specifically, this bill:
1)States legislative findings and declarations regarding the
public interest and historical significance served by
national, state and regional parks, including Yosemite
National Park. Finds and declares that California state parks
are held in trust for the people of California, and that a
legal claim to a trademark right in a name or names associated
with a state park derogates the interests of California and is
indicative of the claimant's lack of fitness to serve as a
steward of state parks. Finds and declares that 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.
2)Modifies the definition of a best responsible bidder, for
purposes of existing law governing the awarding of concession
contracts for state parks, to include that the bidder shall
operate the concession in a manner that protects the state's
trademark and service mark rights in the names associated with
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a state park and state park resources.
3)Provides that a concessionaire who makes a legal claim to have
a trademark interest in a state park in violation of the law,
shall forfeit the right to bid on future state park concession
contracts, to the extent authorized by federal law.
4)Provides that a concessionaire who files an application for a
trademark or service mark associated with a state park or
state park resources, that is successfully opposed or
cancelled by the state, shall be responsible for the state's
attorney's fees and costs.
5)Commencing January 1, 2017, prohibits a concession contract
awarded for a state park from providing the contracting party
with a trademark or service mark interest in the name or names
associated with a state park or state park resources, or from
serving as the basis for any legal claim that the contracting
party has such an interest. States that this prohibition is
declaratory of existing law.
6)Prohibits a bidder from being awarded a state park concession
contract if the bidder has made a legal claim or assertion to
have a trademark associated with a state park in violation of
this statutory prohibition, or if a court has determined that
the bidder has made a claim to have a trademark or service
mark interest in the name or names associated with a state or
federal park venue without reasonable cause and in bad faith.
7)Requires the Department of Parks and Recreation (DPR) to adopt
regulations to provide a bidder who is denied a contract award
on the basis of trademark claims with written notice and an
opportunity to rebut the denial at a formal hearing.
8)Provides that a provision of a concession contract or other
agreement that violates these provisions shall be void and
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unenforceable.
9)Provides that this bill's prohibition on state park concession
contracts providing the basis for a trademark claim in the
name or names associated with a state park 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.
EXISTING LAW:
1)Authorizes DPR to enter into contracts for the operation of
concessions within units of the state park system. Requires,
with specified exceptions, that concession contracts be
awarded to the best responsible bidder. Defines best
responsible bidder as the bidder whom, as determined by DPR,
will operate the concession consistent with the contract, in a
manner fully compatible with and complimentary to the
characteristics, features, and theme of the park unit, and in
the best interests of the state and public.
2)Alternatively, authorizes DPR, if the director of DPR
determines it is in the best interests of the state, and after
giving notice to the State Park & Recreation Commission, to
award concession contracts to the best responsible person or
entity submitting a proposal for a concession contract in
response to a request for proposal. Defines best responsible
person or entity as the person or entity that, as determined
by specific standards established by DPR, will operate the
concession in the best interests of the state and the public.
3)Requires any proposed concession contract that is expected to
involve a total investment or annual gross sales of over
$1,000,000 to be reviewed by the State Park & Recreation
Commission, and submitted to the Joint Legislative Budget
Committee for review at least 30 days prior to advertising for
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bids.
FISCAL EFFECT: According to the Assembly Appropriations
Committee:
1)Initial costs of up to $500,000 for DPR (General Fund or
special fund) to adopt regulations to establish a process for
contested contract awards, determine eligibility of
concessionaires, and amend existing contracts as necessary.
2)Ongoing annual costs of $335,000 (General Fund or special
fund).
COMMENTS: This bill prohibits a state park concession contract
from providing, or serving as the basis for, any claim of a
trademark right in the name or names associated with a state
park.
The author notes that to prevent concessionaires from co-opting
state landmarks, this bill does three things. First, this bill
clarifies that an awarded food or lodging contract does not
entitle a company to any legal claim of a trademark. No state
park official has the authority to agree to contractual terms
that fail to safeguard the interests of California by offering a
public trademark to a private corporation. Second, this bill
prohibits concessionaires from claiming ownership of a name
associated with a California state park. Third, a
concessionaire who asserts such a claim will no longer be viewed
as a fit partner to contract with DPR. This bill disqualifies a
concessionaire from consideration for future contracts if they
assert a trademark claim in violation of this bill's provisions,
or are found by a court to have asserted such a claim without
reasonable cause and in bad faith. This bill's impact rests on
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the premise that a state park concessionaire's business is
incompatible with a trademark or claim of ownership of park
facilities, for which they have been entrusted as a steward, but
which still remain the property of the state.
This bill was sparked by a recent contract dispute involving
Yosemite National Park. For the last 23 years, the Delaware
North Company was the concessionaire operating visitor services
and facilities within Yosemite National Park under a contract
with the National Park Service. In 2015 the National Park
Service rebid the contract and awarded a new 15 year concession
contract to Aramark who was the successful bidder. After
Delaware North lost the contract they sued the federal
government for breach of an implied contract and other alleged
bidding issues. They also asserted they were entitled to
compensation for various trademarks and other intellectual
property rights they had registered while they were the
concessionaire in Yosemite. While the litigation is pending,
the National Park Service has started removing the contested
names from various signs, bridges, and other places within the
park, and renaming the venues. For example, the historic
Ahwahnee Hotel, which is listed on the National Register of
Historic Places as a National Historic Landmark, has been
renamed the Majestic Yosemite Hotel.
Supporters of this bill assert that allowing trademark claims in
state or national parks would be a violation of the public trust
and the deeply held understanding that state and national parks
are treasured resources that belong collectively to the people
of the state and country.
In order to prevent a similar situation from occurring in
California state parks, this bill would prohibit a state park
concession contract from providing, or forming the basis for, a
trademark or service mark interest in the name or names
associated with a state park. This bill would also make any
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bidder who asserts such a legal claim ineligible to be awarded a
contract.
The contract currently used by DPR for state park concessions in
California expressly prohibits a concessionaire from obtaining a
trademark claim in any name or logo associated with a state
park, and provides that any such trademark that might be created
during the period of the contract shall continue in DPR's
exclusive ownership upon termination of the contract. While
this is the current practice at DPR, this bill would ensure that
such protections continue to apply in the future.
Analysis Prepared by:
Diane Colborn / W., P., & W. / (916) 319-2096
FN:
0003302