Code Section Group

Public Resources Code - PRC

DIVISION 5. PARKS AND MONUMENTS [5001 - 5873]

  ( Division 5 added by Stats. 1939, Ch. 94. )

CHAPTER 1.2. Operation and Management of State Park System Properties [5080.02 - 5080.56]

  ( Chapter 1.2 added by Stats. 1982, Ch. 1487, Sec. 7. )

ARTICLE 1. Concessions [5080.02 - 5080.29]
  ( Article 1 added by Stats. 1982, Ch. 1487, Sec. 7. )

5080.02.
  

As used in this article, the following terms shall have the following meanings:

(a) “Board” means the State Public Works Board.

(b) “Commission” means the State Park and Recreation Commission.

(c) “Contract” means a contract for the construction, maintenance, and operation of a concession.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.03.
  

(a) The department may enter into contracts with natural persons, corporations, partnerships, and associations for the construction, maintenance, and operation of concessions within units of the state park system for the safety and convenience of the general public in the use and enjoyment of, and the enhancement of recreational and educational experiences at, units of the state park system.

(b) Concessions shall not be entered into solely for their revenue producing potential.

(c) With respect to any unit of the state park system for which a general development plan has been approved by the commission, any proposed concession at that unit shall be compatible with that plan.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

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.

(Amended by Stats. 2016, Ch. 413, Sec. 3. Effective January 1, 2017.)

5080.06.
  

For any contract authorizing occupancy by the concessionaire for a period of more than two years of any portion of the state park system, the department shall prepare an invitation to bid, which shall include a summary of the terms and conditions of the concession sufficient to enable persons to bid solely on the basis of rates to be paid to the state. The invitation to bid shall specify the minimum acceptable rent, except in instances in which a minimum acceptable rent cannot be ascertained because of the novelty or uniqueness of the service or facility to be provided or in instances in which the department has determined that a better return to the state can be secured by not specifying a minimum acceptable rent. Bids shall be made only on the basis of the invitation to bid.

(Amended by Stats. 2006, Ch. 538, Sec. 566. Effective January 1, 2007.)

5080.07.
  

(a) Notwithstanding the provisions of Sections 11080 and 11081 of the Government Code, public notice to bidders shall be given of all proposed contracts authorizing the occupancy of property in the state park system for a period of more than two years, as follows:

(1) The department shall advertise the notice through appropriate public media to the extent that the department determines is sufficient to provide adequate coverage.

(2) The department shall publish an advertisement for bid at least once a week for two consecutive weeks in a newspaper of general circulation in the county in which the concession is to operate and in a major daily newspaper in the closest metropolitan area.

(3) If the director determines that, in view of the type of concession involved, the public interest would be best served by the solicitation of bids from out-of-state bidders, he or she shall give such additional notice as he or she finds is best suited to attract bids from out-of-state bidders.

(b) The published notice shall state where bid forms may be obtained, the time and place for the receiving and opening of sealed bids, and shall describe, in general terms, the concession to be operated.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.08.
  

(a) The department shall require from prospective bidders answers to questions contained in a standard form of questionnaire and financial statement, including a complete statement of the prospective bidder’s financial ability and experience in maintaining and operating similar or related concessions or business activities. When completed, the questionnaire and financial statement shall be verified under oath by the bidder.

(b) The questionnaires and financial statements are confidential and are not open to public inspection. However, this subdivision shall not be construed to prevent reference thereto or use thereof in a civil action or a criminal prosecution by the state for a false statement contained therein.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.09.
  

All bids shall be presented under sealed cover.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.10.
  

Whether or not bids are opened exactly at the time fixed in the public notice for opening bids, a bid shall not be received after that time.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.11.
  

Any bid may be withdrawn at any time prior to the time fixed in the public notice for the opening of bids, but only by written request of the withdrawal of the bid filed with the director. The request shall be signed by the bidder or by an authorized representative. The withdrawal of a bid does not prejudice the right of a bidder to file a new bid prior to the date and time set for the opening of bids.

This section does not authorize the withdrawal of any bid after the time fixed in the public notice for the opening of bids.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.12.
  

On the day named in the public notice, the department shall publicly open the sealed bids. The department shall carefully study and analyze all bids and, on or after the 15th day after the bids are opened, may award the concession to the bidder then determined to be the best responsible bidder.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.13.
  

If the successful bidder does not sign and deliver the contract within 30 days of receipt thereof and does not provide the state with a bond or other surety and evidence of insurance required thereunder, and on the time limit presented, the department may elect to treat that omission as a refusal to execute the contract. If the director deems it is for the best interests of the state, he or she may, on the refusal or failure of the successful bidder to execute the contract, award it to the second best responsible bidder.

If the second best responsible bidder fails or refuses to execute the contract, the director may likewise award it to the third best responsible bidder.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.14.
  

If the director deems that the acceptance of any bid is not for the best interests of the state, he or she may reject all bids.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.15.
  

A bidder shall not be relieved of his or her bid and no change shall be made in his or her bid because of mistakes.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

5080.16.
  

If the director determines that it is in the best interests of the state, the director, upon giving notice to the State Park and Recreation Commission, may negotiate or renegotiate a contract, including terms and conditions, when one or more of the following conditions exist:

(a) The bid process as prescribed in this article has failed to produce a best responsible bidder.

(b) The negotiation or renegotiation would constitute an extension of an existing contract obtained through the process required by this article and the extended contract would provide for substantial and additional concession facilities, which would be constructed at the sole expense of the concessionaire and which are set forth in the general plan for the unit and are needed to accommodate existing or projected increased public usage.

(c) Lands in the state park system administered by the department and lands under the legal control of the prospective concessionaire are so situated that the concession is dependent upon the use of those public and private lands for the physical or economic success, or both, of the concession.

(d) Whenever a concession is desired for particular interpretive purposes in a unit of the state park system and the prospective concessionaire possesses special knowledge, experience, skills, or ability appropriate to the particular interpretive purposes.

(e) Whenever the concession has been severely and adversely impacted through no fault of the concessionaire by an unanticipated calamity, park closure, major construction, or other harmful event or action.

(f) Whenever the estimated administrative costs for the bid process exceed the projected annual net rental revenue to the state.

(Amended by Stats. 2015, Ch. 573, Sec. 7. Effective January 1, 2016.)

5080.17.
  

(a) Every contract awarded pursuant to the bidding requirements of this article, pursuant to the request for proposal process specified in Section 5080.23, or negotiated or renegotiated pursuant to Section 5080.16, shall be submitted to the Attorney General for approval for legal sufficiency and to the Director of General Services for approval pursuant to Section 11005.2 of the Government Code, the requirements of which are the only requirements applicable to the approval of contracts entered into pursuant to this article. The concession contract is not binding on the state until approved by the Attorney General and the Director of General Services.

(b) Notwithstanding Section 11005.2 of the Government Code and subdivision (a) of this section, the approval of a concession contract by the Director of General Services shall not be required unless the concession contract authorizes occupancy of a unit of the state park system for a period of more than one year.

(Amended by Stats. 1994, Ch. 1067, Sec. 2. Effective September 29, 1994.)

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 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.

(Amended by Stats. 2016, Ch. 546, Sec. 28.5. Effective January 1, 2017.)

5080.19.
  

(a) In order to assure the best possible return from concessions, the department shall periodically survey, and obtain advice and information from professional property managers regarding, the commercial rental market for public and private properties in areas where concessions exist or are expected to be authorized and compile information therefrom, and shall use that information for the purposes of Section 5080.06 and subdivision (b) of this section.

(b) Rent and other returns received from concessions shall reflect current commercial rental market conditions, except in instances when the director has determined that a particular service or facility needs to be furnished to the public and that service or facility cannot be furnished except at less than a fair market value rate of return to the state.

(c) Rental terms of concessions that operate seasonally shall reflect the seasonal characteristics of those concessions.

(d) Rent shall be paid on the basis of the higher of a flat monthly amount or a percentage of gross sales, except in those instances in which part of the compensation paid by a concessionaire consists of the value assigned to services performed by the concessionaire on behalf of the department and those services are of a type normally performed by departmental personnel.

(Amended by Stats. 1992, Ch. 1057, Sec. 2. Effective January 1, 1993.)

5080.20.
  

A contract, including a contract entered into on lands operated pursuant to an agreement entered into under Article 2 (commencing with Section 5080.30), that is expected to involve a total investment or estimated annual gross sales in excess of one million dollars ($1,000,000), shall not be advertised for bid, negotiated, renegotiated, or amended in any material respect unless and until all of the following requirements have been complied with:

(a)  The commission has reviewed the proposed services, facilities, and location of the concession and determined that they meet the requirements of Sections 5001.9 and 5080.03 and are compatible with the classification of the unit in which the concession will be operated.

(b) At least 30 days advance written notice of the proposed concession has been provided by the director to the appropriate policy and fiscal committees of the Legislature and the Joint Legislative Budget Committee.

(c) The proposed concession is accompanied with documentation sufficient to enable the commission and the Joint Legislative Budget Committee to ascertain whether the concession will conform to the requirements of this article and to evaluate fully all terms on which the concession is proposed to be let, including the rent and other returns anticipated to be received.

(Amended by Stats. 2015, Ch. 559, Sec. 8. Effective January 1, 2016.)

5080.21.
  

The department shall include in its annual statement on the concessions program a section setting forth all new concessions entered into during the preceding fiscal year, the terms of each contract, and the terms on which each concession was advertised for bid.

(Added by Stats. 1982, Ch. 1487, Sec. 7. Effective September 28, 1982.)

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.

(Added by Stats. 2016, Ch. 413, Sec. 5. Effective January 1, 2017.)

5080.23.
  

(a) Notwithstanding any other provision of this article, with respect to concession contracts entered into on and after October 1, 1994, if the director determines that it is in the best interests of the state, the director may, upon giving notice to the State Parks and Recreation Commission, in lieu of the process for awarding contracts otherwise prescribed in this article, award contracts authorizing occupancy of any portion of the state park system for a period of more than two years to the best responsible person or entity submitting a proposal for a concession contract.

(b) For any concession contract authorizing occupancy by the concessionaire for a period of more than two years of any portion of the state park system that is entered into pursuant to this section, the department shall prepare a request for proposal, which shall include the terms and conditions of the concession sufficient to enable a person or entity to submit a proposal for the operation of the concession on the basis of the best benefit to the state. Proposals shall be completed only on the basis of the request for proposal.

(c) Any concession contract entered into pursuant to this section that is expected to involve a total investment or gross sales in excess of one million dollars ($1,000,000) shall comply with the requirements for entry into contract that are set forth in Section 5080.20.

(d) For purposes of this section, “best responsible person or entity submitting a proposal” means the person or entity submitting a proposal, as determined by specific standards established by the department, that will operate the concession in the best interests of the state and the public.

(Amended by Stats. 2016, Ch. 201, Sec. 13. Effective January 1, 2017.)

5080.24.
  

(a) The department may enter into an interim agreement with the Pacific Grove-Asilomar Operating Corporation on the same basis as the cancelled contract, except that it shall be modified as specified by subdivisions (b) to (e), inclusive, until the department awards a contract pursuant to Section 5080.25.

(b) Any interim agreement pursuant to subdivision (a) shall provide that the amount of compensation received by the general manager of the Pacific Grove-Asilomar Operating Corporation shall be subject to determination by the Legislature in the annual Budget Act.

(c) Any interim agreement pursuant to subdivision (a) shall require the Pacific Grove-Asilomar Operating Corporation to continue to set rates and to take reservations for dates beyond the date for which the interim agreement is operative.

(d) Any interim agreement pursuant to subdivision (a) shall provide that the meetings of the board of directors of the Pacific Grove-Asilomar Operating Corporation shall be conducted in accordance with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and the board of directors shall be considered a state body under subdivision (b) of Section 11121 of the Government Code.

(e) Any interim agreement pursuant to subdivision (a) shall provide that all business and financial records of the Pacific Grove-Asilomar Operating Corporation, including existing records, but not including records that would be personal information under Section 1798.3 of the Civil Code if maintained by an agency, shall be treated as public records subject to disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). The term “employment contract” as used in Section 6254.8 of the Government Code shall be deemed to mean an employment contract between the Pacific Grove-Asilomar Operating Corporation and its employee.

(Amended by Stats. 2001, Ch. 243, Sec. 12. Effective January 1, 2002.)

5080.25.
  

(a) The department shall enter into a contract for the construction, maintenance, and operation of concessions at the Asilomar Conference Grounds. The contract shall be awarded pursuant to this article, except this section shall prevail in case of conflict between this section and this article.

(b) The contract shall not be advertised for bid, negotiated, renegotiated, or amended in any material respect unless it has been submitted to the Legislature for review.

(c) The contract shall require the concessionaire to pay for administrative costs, capital expenditures, and department staff necessary for the operation of, and improvements to, the Asilomar State Beach and Conference Center, including restoration projects.

(d) The contract shall require all capital improvements to the Asilomar State Beach and Conference Center to be solely the property of the state.

(e) The contract shall require the concessionaire to honor all rates and reservations made by the Pacific Grove-Asilomar Operating Corporation under the interim agreement described in Section 5080.24.

(f) The contract shall require the concessionaire to give preference to the employees of the Pacific Grove-Asilomar Operating Corporation when staffing the operation of the concessionaire.

(g) The contract shall emphasize the importance of protecting the natural and cultural values of the Asilomar State Beach and Conference Center.

(h) In awarding the contract, the department shall consider bids or proposals from both nonprofit and for-profit entities.

(i) If the contract is awarded to a concessionaire governed by a board of directors, the contract shall require the department to be present at meetings of the board of directors relating to the construction, maintenance, finances, or operation of concessions at the Asilomar Conference Grounds, and shall require those meetings to be conducted in accordance with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). If the contract is awarded to a concessionaire that is not governed by a board of directors, the contract shall require the concessionaire to hold quarterly meetings at the Asilomar Conference Grounds, relating to the construction, maintenance, finances, or operation of concessions at the Asilomar Conference Grounds, at which the department shall be present, that shall be conducted in accordance with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).

(j) The contract shall provide that all business and financial records of the concessionaire relating to the construction, maintenance, or operation of concessions at the Asilomar Conference Grounds, including existing records, but not including records that would be personal information under Section 1798.3 of the Civil Code if maintained by an agency, shall be treated as public records subject to disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). The term “employment contract” as used in Section 6254.8 of the Government Code shall be deemed to mean an employment contract between the concessionaire and its employee.

(k) In awarding the contract, the department shall consider without prejudice any bid or proposal submitted by the Pacific Grove-Asilomar Operating Corporation.

(l) The department shall, for the purpose of ensuring that all bidders are afforded an equal opportunity to compete for the contract, consider the estimated amount of fees or taxes that might be paid to the state or to a local government by a bidder as a result of the contract among those factors to be used to evaluate the bidder’s bid or proposal for the contract. The department shall consult with the Department of Finance and the Board of Equalization to obtain information necessary to estimate the amount of fees or taxes that might be paid by a bidder as a result of the contract.

(m) Any revenues received by the department pursuant to the contract that are identified by the department as funds in excess of the approved operating budget and the approved capital improvement budget for the Asilomar Conference Grounds shall be deposited in the State Parks and Recreation Fund.

(n) On or before January 1, 1995, the department shall submit a request for proposal for the contract to the Assembly Water, Parks, and Wildlife Committee, the Senate Natural Resources Committee, the Assembly Ways and Means Committee, and the Senate Budget and Fiscal Review Committee for review.

(Added by Stats. 1994, Ch. 798, Sec. 2. Effective September 27, 1994.)

5080.26.
  

(a) Notwithstanding Sections 11080 and 11081 of the Government Code, public notice of a request for proposal shall be given to persons or entities for the purpose of soliciting proposals for any concession contract authorizing the occupancy of property in the state park system for a period of more than two years that is entered into pursuant to Section 5080.23, as follows:

(1) The department shall advertise the notice through appropriate public media to the extent that the department determines is sufficient to provide adequate coverage.

(2) The department shall publish an advertisement for a proposal at least once a week for two consecutive weeks in a newspaper of general circulation in the county in which the concession is to operate and in a major daily newspaper in the closest metropolitan area.

(3) If the director determines that, in view of the type of concession involved, the public interest would be best served by the solicitation of proposals from out-of-state persons or entities, the director shall give such additional notice as the director finds is best suited to attract proposals from out-of-state persons or entities.

(b) The published notice shall state where forms for proposals may be obtained, the time and place for the receipt and review of proposals, and shall describe, in general terms, the concession to be operated.

(Added by Stats. 1994, Ch. 1067, first Sec. 4. Effective September 29, 1994.)

5080.28.
  

Notwithstanding any other provision of law, the department may negotiate an agreement of up to two years duration to extend the hotel concession contract in existence on January 1, 1999, for the Columbia State Park. Upon termination of the extension agreement, the concession shall be put out to bid in accordance with the bidding requirements of this article.

(Added by Stats. 1999, Ch. 66, Sec. 9. Effective July 6, 1999.)

5080.29.
  

Notwithstanding any other provision of law, including subdivision (a) of Section 5080.18, the department may enter into concession contracts for the development, operation, and maintenance of marinas, for a term of up to 30 years, if the director determines that the term authorized under this section is necessary to allow for amortization of the loan, or to serve the best interests of the state.

(Added by Stats. 2004, Ch. 109, Sec. 1. Effective January 1, 2005.)

PRCPublic Resources Code - PRC1.