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

California Legislature—2015–16 Regular Session

Assembly BillNo. 2249


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, 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.

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.

begin insert

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.

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:

P3    1

SECTION 1.  

This act shall be known, and may be cited, as the
2California Heritage Protection Act.

3

SEC. 2.  

The Legislature finds and declares all of the following:

4(a) National, state, and regional parks serve the public interest,
5benefit California, and very often reflect historic significance that
6earlier generations of Californians have attached to these sites.

7(b) Yosemite National Park, located in California, is one of the
8most important and majestic parks in the United States and is filled
9with historic landmarks built several decades ago. The historic
10nature of these landmarks as California heirloom destinations is
11demonstrated by topographic maps of the Yosemite Valley, dating
12back to the 1950s, which include these venues.

13(c) The Ahwahnee Hotel was built in the 1920s with a backdrop
14of Half Dome. It was placed on the National Register of Historic
15Places in 1977.

16(d) Curry Village, in the Yosemite Valley, is named after a San
17Francisco Bay area couple who established a summer camp there
18in 1899. It was placed on the National Register of Historic Places
19in 1979.

20(e) The Wawona Hotel is a complex of seven buildings in the
21southwest corner of Yosemite National Park. The first building,
22then named “Long White,” was originally constructed in 1876.
23The main hotel building originally opened in 1879. It was placed
24on the National Register of Historic Places in 1975.

25(f) California state park venues are held in public trust for the
26people of California. A legal claim by an individual to have a
27trademark right to a name or names associated with a venue within
28a state park derogates the interests of California and the shared
29history of Californians, and it is indicative of a lack of the
30individual’s fitness to serve as a steward of the state’s cherished
31cultural heritage and places.

P4    1(g) An agreement entered into by any California state agency
2that compromises the interests of Californians is “ultra vires” and
3therefore beyond that agency’s legal authority to enter.

4(h) It is important that the Legislature clarify that an awarded
5concession contract within California’s state parks does not give
6the concessionaire a trademark right to the name or names
7associated with a state park venue or its historical, cultural, or
8recreational resources. Furthermore, a concessionaire who makes
9a legal claim to have that trademark right should be disqualified
10from further consideration as a bidder.

11

SEC. 3.  

Section 5080.05 of the Public Resources Code is
12amended to read:

13

5080.05.  

(a) Except as provided in Section 5080.16, all
14contracts authorizing occupancy of any portion of the state park
15system for a period of more than two years shall be awarded to
16the best responsible bidder.

17(b) “Best responsible bidder” means the bidder, as determined
18by specific standards established by the department, that, as
19determined by the department, will operate the concession (1)
20consistent with the contract, (2) in a manner fully compatible with,
21andbegin delete complimentaryend deletebegin insert complementaryend insert to, the characteristics, features,
22and theme of the unit in which the concession will be operated,
23(3) in the best interests of the state and public, and (4) in a manner
24that protects the state’s trademark and service mark rights in the
25names associated with a state park venue and its historical, cultural,
26and recreational resources. For purposes of this section, a bidder
27who would be subject to subdivision (b) of Section 5080.22 is not
28a best responsible bidder.

29

SEC. 4.  

Section 5080.18 of the Public Resources Code is
30amended to read:

31

5080.18.  

A concession contract entered into pursuant to this
32article shall contain, but is not limited to, all of the following
33provisions:

34(a) (1) The maximum term shall be 10 years, except that a term
35of more than 10 years may be provided if the director determines
36that the longer term is necessary to allow the concessionaire to
37amortize improvements made by the concessionaire, to facilitate
38the full utilization of a structure that is scheduled by the department
39for replacement or redevelopment, or to serve the best interests of
40the state. The term shall not exceed 20 years without specific
P5    1authorization by statute. Except as provided in Section 5080.16,
2all renewals of concession contracts pursuant to this paragraph
3shall be subject to competitive bidding requirements.

4(2) The maximum term shall be 50 years if the concession
5contract is for the construction, development, and operation of
6multiple-unit lodging facilities equipped with full amenities,
7including plumbing and electrical, that is anticipated to exceed an
8initial cost of one million five hundred thousand dollars
9($1,500,000) in capital improvements in order to begin operation.
10The term for a concession contract described in this paragraph
11shall not exceed 50 years without specific authorization by statute.
12Except as provided in Section 5080.16, all renewals of concession
13contracts pursuant to this paragraph shall be subject to competitive
14bidding requirements.

15(3) Notwithstanding paragraph (1), a concession agreement at
16Will Rogers State Beach executed prior to December 31, 1997,
17including, but not limited to, an agreement signed pursuant to
18Section 25907 of the Government Code, may be extended to exceed
1920 years in total length without specific authorization by statute,
20upon approval by the director and pursuant to a determination by
21the director that the longer term is necessary to allow the
22concessionaire to amortize improvements made by the
23concessionaire that are anticipated to exceed one million five
24hundred thousand dollars ($1,500,000) in capital improvements.
25Any extensions granted pursuant to this paragraph shall not be for
26more than 15 years.

27(b) Every concessionaire shall submit to the department all sales
28and use tax returns and, at the request of the department, provide
29an annual financial statement prepared or audited by a certified
30public accountant.

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

32(d) A performance bond shall be obtained and maintained by
33the concessionaire. In lieu of a bond, the concessionaire may
34substitute a deposit of funds acceptable to the department. Interest
35on the deposit shall accrue to the concessionaire.

36(e) The concessionaire shall obtain and maintain in force at all
37times a policy of liability insurance in an amount adequate for the
38nature and extent of public usage of the concession and naming
39the state as an additional insured.

P6    1(f) Any discrimination by the concessionaire or his or her agents
2or employees against any person because of the marital status or
3ancestry of that person or any characteristic listed or defined in
4Section 11135 of the Government Code is prohibited.

5(g) To be effective, any modification of the concession contract
6shall be evidenced in writing.

7(h) Whenever a concession contract is terminated for substantial
8breach, there shall be no obligation on the part of the state to
9purchase any improvements made by the concessionaire.

10(i) If a concessionaire makes a legal claim or assertion to have
11a trademark or service mark interest in violation of subdivision (a)
12of Section 5080.22, the concessionaire shall forfeit the right to bid
13on future state park concession contracts to the extent authorized
14by federal law.

15(j) If a current or former concessionaire in bad faith files a
16federal or state trademark or service mark application for a
17trademark or service mark that incorporates or implies an
18association with a state park venue, or its historical, cultural, or
19recreational resources, and the state files a successful opposition
20or cancellation with respect to that trademark or service mark
21application, the concessionaire shall be responsible for the state’s
22attorney fees, costs, and expenses associated with that opposition
23or cancellation.

24begin insert

begin insertSEC. 4.5.end insert  

end insert

begin insertSection 5080.18 of the end insertbegin insertPublic Resources Codeend insertbegin insert is
25amended to read:end insert

26

5080.18.  

begin deleteAll end deletebegin insertA end insertconcessionbegin delete contractsend deletebegin insert contractend insert entered into
27pursuant to this article shall contain, butbegin delete areend deletebegin insert isend insert not limited to, all
28of the following provisions:

29(a) (1) The maximum term shall be 10 years, except that a term
30of more than 10 years may be provided if the director determines
31that the longer term is necessary to allow the concessionaire to
32amortize improvements made by the concessionaire, to facilitate
33the full utilization of a structure that is scheduled by the department
34for replacement or redevelopment, or to serve the best interests of
35the state. The term shall not exceed 20 years without specific
36authorization by statute. Except as provided in Section 5080.16,
37all renewals of concession contracts pursuant to this paragraph
38shall be subject to competitive bidding requirements.

39(2) The maximum term shall be 50 years if the concession
40contract is for the construction, development, and operation of
P7    1multiple-unit lodging facilities equipped with full amenities,
2including plumbing and electrical, that is anticipated to exceed an
3initial cost of one million five hundred thousand dollars
4($1,500,000) in capital improvements in order to begin operation.
5The term for a concession contract described in this paragraph
6shall not exceed 50 years without specific authorization by statute.
7Except as provided in Section 5080.16, all renewals of concession
8contracts pursuant to this paragraph shall be subject to competitive
9bidding requirements.

10(3) Notwithstanding paragraph (1), a concession agreement at
11Will Rogers State Beachbegin delete executed prior to December 31, 1997,
12including, but not limited to, an agreement signed pursuant to
13Section 25907 of the Government Code,end delete
may bebegin delete extended to exceed
1420end delete
begin insert may be awarded for up to 50end insert years inbegin delete totalend delete length without
15specific authorization by statute, upon approval by the director
16and pursuant to a determination by the director that the longer term
17is necessary to allow the concessionaire to amortize improvements
18made by the concessionaire that are anticipated to exceed one
19million five hundred thousand dollars ($1,500,000) in capital
20improvements.begin delete Any extensions granted pursuant to this paragraph
21shall not be for more than 15 years.end delete

22(b) Every concessionaire shall submit to the department all sales
23and use tax returns and, at the request of the department, provide
24an annual financial statement prepared or audited by a certified
25public accountant.

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

27(d) A performance bond shall be obtained and maintained by
28the concessionaire. In lieu of a bond, the concessionaire may
29substitute a deposit of funds acceptable to the department. Interest
30on the deposit shall accrue to the concessionaire.

31(e) The concessionaire shall obtain and maintain in force at all
32times a policy of liability insurance in an amount adequate for the
33nature and extent of public usage of the concession and naming
34the state as an additional insured.

35(f) Any discrimination by the concessionaire or his or her agents
36or employees against any person because of the marital status or
37ancestry of that person or any characteristic listed or defined in
38Section 11135 of the Government Code is prohibited.

39(g) To be effective, any modification of the concession contract
40shall be evidenced in writing.

P8    1(h) Whenever a concession contract is terminated for substantial
2breach, there shall be no obligation on the part of the state to
3purchase any improvements made by the concessionaire.

begin insert

4
(i) If a concessionaire makes a legal claim or assertion to have
5a trademark or service mark interest in violation of subdivision
6(a) of Section 5080.22, the concessionaire shall forfeit the right
7to bid on future state park concession contracts to the extent
8authorized by federal law.

end insert
begin insert

9
(j) If a current or former concessionaire in bad faith files a
10federal or state trademark or service mark application for a
11 trademark or service mark that incorporates or implies an
12association with a state park venue, or its historical, cultural, or
13recreational resources, and the state files a successful opposition
14or cancellation with respect to that trademark or service mark
15application, the concessionaire shall be responsible for the state’s
16attorney fees, costs, and expenses associated with that opposition
17or cancellation.

end insert
18

SEC. 5.  

Section 5080.22 is added to the Public Resources Code,
19to read:

20

5080.22.  

(a) (1) A concession contract awarded pursuant to
21Section 5080.05, 5080.16, or 5080.23 shall not provide the
22contracting party with a trademark or service mark interest in the
23name or names associated with a state park venue, or its historical,
24cultural, or recreational resources, and shall not serve as the basis
25for any legal claim that the contracting party has that interest.

26(2) This subdivision does not constitute a change in, but is
27declaratory of, existing law.

28(b) To the extent consistent with federal law, a bidder shall not
29be awarded a contract pursuant to Section 5080.05, 5080.16, or
305080.23 if either of the followingbegin delete apply:end deletebegin insert applies:end insert

31(1) The bidder has made a legal claim or assertion to have a
32trademark or service mark interest in violation of subdivision (a).

33(2) A court has determined that the bidder has made a legal
34claim or assertion to have a trademark or service mark interest in
35the name or names associated with a state or federal park venue,
36or its historical, cultural, or recreational resources, without
37reasonable cause and in bad faith.

38(c) The department shall adopt regulations to provide a bidder
39who is denied a contract award based on subdivision (b) with
P9    1written notice of that denial and an opportunity to rebut the basis
2for the contract denial at a formal hearing.

3(d) Commencing January 1, 2017, a provision of a contract or
4other agreement entered into pursuant to Section 5080.05, 5080.16,
5or 5080.23 that violates subdivision (a) shall be void and
6unenforceable.

7(e) This section shall not be construed to impact a contracting
8party’s valid trademark or service mark rights that were held before
9the concession contract was awarded.

10begin insert

begin insertSEC. 6.end insert  

end insert
begin insert

Section 4.5 of this bill incorporates amendments to
11Section 5080.18 of the Public Resources Code proposed by both
12this bill and Senate Bill 1473. It shall only become operative if (1)
13both bills are enacted and become effective on or before January
141, 2017, (2) each bill amends Section 5080.18 of the Public
15Resources Code, and (3) this bill is enacted after Senate Bill 1473,
16in which case Section 4 of this bill shall not become operative.

end insert


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