2007 California Public Resources Code Article 1. Concessions

CA Codes (prc:5080.02-5080.29)

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.


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.



5080.05.  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.  "Best responsible bidder" means the bidder, as
determined by specific standards established by the department,
which, as determined by the department, will operate the concession
(1) consistent with the contract, (2) in a manner fully compatible
with, and complimentary to, the characteristics, features, and theme
of the unit in which the concession will be operated, and (3) in the
best interests of the state and public.


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.



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.



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.



5080.09.  All bids shall be presented under sealed cover.



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.


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.



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.



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.


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.


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.



5080.16.  If the director determines that it is for 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.



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.



5080.18.  All concession contracts entered into pursuant to this
article shall contain, but are not limited to, all of the following
provisions:
   (a) 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.
   (b) Every concessionaire shall submit to the department all sales
and use tax returns.
   (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.



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.



5080.20.  No contract, including a contract entered into on lands
operated pursuant to an agreement entered into under Article 2
(commencing with Section 5080.30), which is expected to involve a
total investment or estimated annual gross sales in excess of five
hundred thousand dollars (0,000), may 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) The Legislature has reviewed and approved the proposed
concession as part of the annual budget process or the requirements
of subdivision (c) have been complied with.  No proposed concession
shall be submitted for review by the Legislature until the commission
has made its determination pursuant to subdivision (a), unless
deferring review by the Legislature would be adverse to the interests
of the public, in which case the Legislature's review may precede
the commission's determination.
   (c) Following enactment of the Budget Bill, the board has
determined that the proposed concession could not have been presented
to the Legislature for review and approval in the course of its
consideration of the Budget Bill, or the proposed concession was
reviewed and approved but it is necessary to revise the terms of the
invitation to bid or the contract in a material respect, and that it
would be adverse to the interests of the public to defer that review
and approval to a time when the Legislature next considers a Budget
Bill.  Upon making that determination, the board may review and
approve the proposed concession, or any revision thereof, after
giving at least 20 days' written notice to the Chairman of the Joint
Legislative Budget Committee and to the chairmen of the fiscal and
appropriate policy committees of its intended action.  All actions
taken by the board pursuant to this subdivision shall be reported to
the Legislature in the next Governor's Budget.
   (d) The proposed concession is accompanied with documentation
sufficient to enable the Legislature, the commission, and the board,
as the case may be, to ascertain whether the concession will conform
to the requirements of this article and, as to the Legislature and
the board, to evaluate fully all terms on which the concession is
proposed to be let, including the rent and other returns anticipated
to be received.



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.



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 five hundred thousand dollars (0,000) 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.



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.



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.



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.



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.



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.