Bill Text: CA AB2249 | 2015-2016 | Regular Session | Chaptered


Bill Title: State parks.

Spectrum: Slight Partisan Bill (Democrat 19-7)

Status: (Passed) 2016-09-21 - Chaptered by Secretary of State - Chapter 413, Statutes of 2016. [AB2249 Detail]

Download: California-2015-AB2249-Chaptered.html
BILL NUMBER: AB 2249	CHAPTERED
	BILL TEXT

	CHAPTER  413
	FILED WITH SECRETARY OF STATE  SEPTEMBER 21, 2016
	APPROVED BY GOVERNOR  SEPTEMBER 21, 2016
	PASSED THE SENATE  AUGUST 23, 2016
	PASSED THE ASSEMBLY  AUGUST 29, 2016
	AMENDED IN SENATE  AUGUST 18, 2016
	AMENDED IN SENATE  AUGUST 2, 2016
	AMENDED IN ASSEMBLY  MAY 27, 2016
	AMENDED IN ASSEMBLY  APRIL 18, 2016
	AMENDED IN ASSEMBLY  MARCH 30, 2016

INTRODUCED BY   Assembly Members Cooley, Bigelow, and Gray
   (Coauthors: Assembly Members Achadjian, Arambula, Bloom, Brown,
Dababneh, Dodd, Eggman, Cristina Garcia, Gatto, Gipson, Levine,
Obernolte, Olsen, Patterson, Salas, and Wagner)
   (Coauthors: Senators Allen, Hertzberg, Hueso, Jackson, Pavley,
Vidak, and Wolk)

                        FEBRUARY 18, 2016

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



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2249, 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.
   This bill would enact the California Heritage Protection Act,
which would make various changes to the process for negotiating or
renegotiating state parks concession contracts. The 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.
   This bill would prohibit a concession contract from providing a
contracting party with a trademark or service mark interest in the
name or names associated with a state park 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. The bill would declare that
these provisions do not constitute a change in, but are declaratory
of, existing law. The bill would prohibit a bidder who makes that
legal claim or 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, from
being awarded a concession contract within state 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 render a provision of a
concession contract that, on and after January 1, 2017, provides a
contracting party with a trademark or service mark interest in the
name or names associated with a state park venue, or its historical,
cultural, or recreational resources, void and unenforceable.
   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 in bad faith 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.
   This bill would incorporate additional changes to Section 5080.18
of the Public Resources Code proposed by SB 1473 to be operative only
if SB 1473 and this bill are chaptered and become effective on or
before January 1, 2017, and this bill is chaptered last.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  This act shall be known, and may be cited, as the
California Heritage Protection Act.
  SEC. 2.  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 or its historical, cultural, or recreational
resources. Furthermore, a concessionaire who makes a legal claim to
have that trademark right should be disqualified from further
consideration as a bidder.
  SEC. 3.  Section 5080.05 of the Public Resources Code is amended to
read:
   5080.05.  (a) 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.
   (b) "Best responsible bidder" means the bidder, as determined by
specific standards established by the department, that, as determined
by the department, will operate the concession (1) consistent with
the contract, (2) in a manner fully compatible with, and
complementary to, the characteristics, features, and theme of the
unit in which the concession will be operated, (3) in the best
interests of the state and 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.
  SEC. 4.  Section 5080.18 of the Public Resources Code is amended to
read:
   5080.18.  A concession contract entered into pursuant to this
article shall contain, but is 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.
   (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.
   (j) If a current or former concessionaire in bad faith 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.
  SEC. 4.5.  Section 5080.18 of the Public Resources Code is amended
to read:
   5080.18.  A concession contract entered into pursuant to this
article shall contain, but is 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 may be may be awarded for up to 50 years in 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.
   (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.
   (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.
   (j) If a current or former concessionaire in bad faith 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.
  SEC. 5.  Section 5080.22 is added to the Public Resources Code, to
read:
   5080.22.  (a) (1) A concession contract awarded pursuant to
Section 5080.05, 5080.16, or 5080.23 shall not provide the
contracting party with a trademark or service mark interest in the
name or names associated with a state park 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.
   (2) This subdivision does not constitute a change in, but is
declaratory of, existing law.
   (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 applies:
   (1) The bidder has made a legal claim or assertion to have a
trademark or service mark interest in violation of subdivision (a).
   (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.
   (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.
   (d) Commencing January 1, 2017, 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.
   (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.
  SEC. 6.  Section 4.5 of this bill incorporates amendments to
Section 5080.18 of the Public Resources Code proposed by both this
bill and Senate Bill 1473. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1, 2017,
(2) each bill amends Section 5080.18 of the Public Resources Code,
and (3) this bill is enacted after Senate Bill 1473, in which case
Section 4 of this bill shall not become operative.       
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