BILL ANALYSIS Ó
AB 2249
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CONCURRENCE IN SENATE AMENDMENTS
AB
2249 (Cooley, et al.)
As Amended August 18, 2016
Majority vote
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|ASSEMBLY: |80-0 |(June 2, 2016) |SENATE: | 39-0 | (August 23, |
| | | | | |2016) |
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Original Committee Reference: W., P., & W.
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.
The Senate amendments:
1)Clarify that the provision of this bill that prohibits a state
park concession contract from providing the contracting party
with a trademark or service mark interest in the name or names
associated with a state park, and prohibits such a contract
from forming the basis for any legal claim to such an
interest, does not constitute a change in but is declaratory
of existing law.
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2)Clarify that the provision of this bill that declares a
contract that violates the above prohibition to be void and
unenforceable is effective commencing January 1, 2017.
3)Narrow the provision of this bill which makes a concessionaire
who files an application for a trademark or service mark in
association with a state park liable for the state's
attorney's fees, applicable only if the filing is in bad
faith.
4)Add co-authors and technical language to avoid chaptering out
problems with SB 1473 (Committee on Natural Resources and
Water) in the event both bills pass and amend the same code
section.
EXISTING LAW:
1)Authorizes the Department of Parks & Recreation (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 who, as determined by the 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 the DPR, if the director of the 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 the DPR, will operate the
concession in the best interests of the state and the public.
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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
bids.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)One-time costs of $50,000 to $150,000 (General Fund) to the
California Department of Parks and Recreation (CDPR) to
develop regulations.
2)Unknown, potentially significant costs, to ensure compliance
with anti-trademarking provisions and to provide required
appeals process, if requested.
3)Unknown cost for potential litigation for contested contract
awards.
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 Senate amendments are technical and clarifying.
This bill clarifies that a concession contract in a state park
does not entitle a company to any legal claim of a trademark,
prohibits concessionaires from claiming ownership of a name
associated with a California state park, and 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
the premise that a state park concessionaire's business is
incompatible with a trademark or claim of ownership of park
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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.
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
bidder who asserts such a legal claim ineligible to be awarded a
contract.
The contract currently used by the 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 the DPR's exclusive ownership upon termination of
the contract. While this is the current practice at the 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:
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