Beals_Point_-_Sample_Contract_-FINAL_DRAFT_260430.pdf

CONCESSION CONTRACT

FOR

Beals Point Food Service

AT

Folsom Lake State Recreation Area

STATE OF CALIFORNIA – NATURAL RESOURCES AGENCY

DEPARTMENT OF PARKS AND RECREATION

PARTNERSHIPS DIVISION

715 P STREET, 13TH FLOOR

SACRAMENTO, CA 95814

P24CA017

Beals Point Food Service Concession Contract P24CA017 Folsom Lake State Recreation Area i

Beals Point Food Service

INDEX

1. DESCRIPTION OF PREMISES

2. CONDITION OF PREMISES

3. TERM

4. RENT

5. GROSS RECEIPTS

6. USE OF PREMISES

7. LIABILITY WAIVER

8. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES

9. EMPLOYEE ORIENTATION AND TRAININGS

10. ALCOHOLIC BEVERAGES

11. HEALTHY FOODS INITIATIVE

12. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL

13. RESOURCE CONSERVATION

14. HAZARDOUS SUBSTANCES

15. PEST CONTROL ACTIVITIES

16. UTILITIES AND SERVICES

17. EQUIPMENT

18. PERSONAL PROPERTY

19. SIGNS AND ADVERTISING

20. PHOTOGRAPHY

21. INTELLECTUAL PROPERTY RIGHTS

22. GRANT OF STATE’S TRADEMARK LICENSE

23. PARTICIPATION IN STATE PARK MARKETING PROGRAMS

24. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS

25. BONDS

26. INSURANCE

27. HOLD HARMLESS AGREEMENT

28. COMPLIANCE WITH LAWS, RULES, REGULATIONS AND POLICIES

29. GENERATIVE AI REQUIREMENTS

Beals Point Food Service Concession Contract P24CA107 Folsom Lake State Recreation Area ii

30. DISABILITIES ACCESS LAWS

31. NONDISCRIMINATION

32. DRUG-FREE WORKPLACE

33. CONFLICT OF INTEREST

34. EXPATRIATE CORPORATIONS

35. NATIONAL LABOR RELATIONS BOARD CERTIFICATION

36. CHILD SUPPORT COMPLIANCE ACT

37. RECORDS AND REPORTS

38. TAXES

39. PERFORMANCE EVALUATIONS AND INSPECTIONS

40. DEFAULT BY CONCESSIONAIRE

41. STATE’S REMEDIES

42. DEFAULT BY STATE

43. SURRENDER OF THE PREMISES; HOLDING OVER

44. NO RECORDATION; QUITCLAIM

45. ATTORNEY’S FEES

46. WAIVER OF CLAIMS

47. WAIVER OF CONTRACT TERMS

48. INTERPRETATION OF CONTRACT

49. DURATION OF PUBLIC FACILITIES

50. EMINENT DOMAIN

51. TEMPORARY TENANCY

52. SECTION TITLES

53. INDEPENDENT CONCESSIONAIRE

54. ASSIGNMENTS AND SUBCONCESSIONS

55. MODIFICATION OF CONTRACT

56. UNENFORCEABLE PROVISION

57. APPROVAL OF CONTRACT

58. CONTRACT NOTICE

59. STATE’S DISTRICT SUPERINTENDENT

60. FORCE MAJEURE

iii

61. DEFINITIONS

EXHIBIT A – THE PREMISES

EXHIBIT B – DPR 54, CONCESSIONAIRE’S MONTHLY REPORT OF OPERATION . 57

EXHIBIT C – DPR 86, CONCESSIONAIRE FINANCIAL STATEMENT

EXHIBIT D – DPR 531, CONCESSION PERFORMANCE RATING

EXHIBIT E – DRUG FREE WORKPLACE CERTIFICATION

EXHIBIT F – LICENSE/PERMISSION FOR USE OF TRADEMARKS

EXHIBIT G – WAIVER OF LIABILITY AND RELEASE SAMPLE

EXHIBIT H – CONCESSIONAIRE’S OPERATION PLAN

EXHIBIT I – CONCESSIONAIRE’S VOLUNTEER WAIVER FORM

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION

For

Beals Point Food Service

Located In

Folsom Lake State Recreation Area

Placer County

THIS CONTRACT is made and entered into by and between the STATE

OF CALIFORNIA, acting through its Department of Parks and Recreation, hereinafter referred to as "State,” and ConcessionaireName DBA FictitiousBusName of CityState, hereinafter referred to as "Concessionaire;"

RECITALS

WHEREAS, California Public Resources Code §5080.03 et seq.

authorizes the Department of Parks and Recreation to enter into concession contracts for the operation of state park system lands and facilities and;

WHEREAS, in accordance with California Public Resources Code §

5080.23, concession contracts authorizing occupancy of any portion of the state park system for a period of more than three (3) years are required to be awarded through a competitive bid process; and

WHEREAS, State and the U.S. Department of the Interior, Bureau of

Reclamation, hereinafter referred to as "BOR,” entered into a twenty-five (25) year

Managing Partner Agreement (MPA) effective January 24, 2012, providing the State the authority to develop and operate Folsom SRA for public recreation purposes.

WHEREAS, it is appropriate that the following contract be entered into for the safety and convenience of the general public in the use and enjoyment of, and the overall enhancement of recreational and educational experience at units of the state park system and;

NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN

THE PARTIES AS FOLLOWS:

1. DESCRIPTION OF PREMISES

The State for and in consideration of the agreements hereinafter stated, grants to

Concessionaire for the purposes stated herein, the right, privilege, and duty to develop, equip, operate, and maintain a nonexclusive concession in Folsom Lake State

Recreation Area as set forth in red outlined area in Exhibit A, attached to and made a part of this Contract (the "Premises"). Additional review may also be required by United

States Bureau of Reclamation (BOR) at discretion of State.

The possessory interest herein given to the Concessionaire does not exclude the general public from the Premises; however, the use by the general public is limited by the terms and conditions of the possessory interest given herein. This Contract is not intended to confer third party beneficiary status to any member of the public who is benefited by the terms of this Contract. The possessory interest is further subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of title that may affect the Premises.

2. CONDITION OF PREMISES

The taking of possession of the Premises by the Concessionaire, in itself, shall constitute acknowledgment that the Premises are in good and sufficient condition for the purposes for which Concessionaire is entering into this Contract. Concessionaire agrees to accept Premises in their presently existing condition, "AS IS,” and that the

State shall not be obligated to make any alterations, additions, or betterments to the

Premises except as otherwise provided for in this Contract.

3. TERM

The term of this Contract shall be for a period of five (5) years commencing on the first day of the month following approval by the California Department of General

Services (the “Commencement Date”). The contract may be extended for an additional five (5) years by mutual written agreement between the State and Concessionaire.

Should Concessionaire hold-over after the expiration of the term of this Contract with the express or implied consent of the State, such holding-over shall be deemed to be a tenancy from month-to-month at the herein stated prescribed rent as set forth in this Contract in Section 43, Surrender of Premises; Holding Over, subject otherwise to all the terms and conditions of this Contract.

For purposes of this Contract, the term "Contract Year" shall mean each one-year period of time that commences on the Commencement Date identified above, extending twelve (12) months therefrom, and continuing from each anniversary throughout the term of the Contract.

4. RENT

Concessionaire shall pay, without offset, deduction, prior notice or demand, as

"Minimum Annual Rent” the sum of two thousand five hundred dollars ($2,500) annually or ten percent (10%) of Gross Receipts, whichever sum is greater.

Concessionaire shall make payment of Minimum Annual Rent and other payments to State in lawful money of the United States. However, if any payment made by a check, draft, or money order is returned to State due to insufficient funds or otherwise, State shall have the right, at any time after the return, upon written notice to

Concessionaire, to require Concessionaire to make all subsequent payments in cash or by cashier's or certified check.

Beginning with the fifteenth (15th) day of the month following the Commencement

Date, and on or before the fifteenth (15th) day of each month thereafter, Concessionaire shall furnish to State a verified statement of the concession’s Gross Receipts for the preceding month. Such statement shall be submitted on Form DPR 54, Concessionaire's Monthly Report of Operation, attached hereto as Exhibit B, or in a format previously approved by the State, and shall specify the current period and cumulative total of Gross Receipts for the concession through the end of the preceding month for the then current Contract Year. Concessionaire shall also provide such statement for periods of non-operation. Concurrent with such monthly statement, the

Concessionaire shall pay to State the appropriate rental fee based on the Gross

Receipts for the preceding calendar month as prescribed above. Payments to State shall be made to the order of the Department of Parks and Recreation and delivered to the District Office identified in Section 58, Contract Notice, or at such other location as may from time to time be designated by State. If, at the end of the Contract Year, the total of monthly percentage rental payments made (or due) during that Contract Year is less than the Minimum Annual Rent required for that Contract Year, the difference shall be remitted to State with the last monthly sales statement for the Contract Year.

Payments must be received by State on or before the fifteenth (15th) day of the month as described above. Any late payment shall constitute default and breach of contract, giving rise to State's remedies as set forth below. Further, any late payment will be subject to a late penalty consisting of an administrative charge on the late amount, calculated at the rate of five percent (5%) of the amount of the late payment or portion thereof. The parties agree that the late charge represents a fair and reasonable estimate of the costs State will incur because of late payment. Acceptance of the late charge by State shall not constitute a waiver of Concessionaire's default for the overdue amount, nor prevent State from exercising the other rights and remedies granted under this Contract. Concessionaire shall pay the late charge as additional rent with the next monthly rent payment.

Any amount due to State, if not paid within five (5) days following the due date, will bear interest from the due date until paid at the rate of ten percent (10%) per year.

However, interest shall not be payable on late charges incurred by Concessionaire.

Payment of interest shall not excuse or cure any default by Concessionaire.

Upon written request by the Concessionaire to State demonstrating unusual or extenuating circumstances causing the late payment, the State, in its sole discretion, may waive the late charge. Further, in the event Concessionaire is prevented from carrying on the operations contemplated herein by reason of Force Majeure, as defined in Section 60 Force Majeure and when requested in writing in advance by

Concessionaire, Minimum Rent may be abated in proportion to the amount by which

Gross Receipts are reduced by the occurrence for such period of reduced or non-operation, as determined in the sole discretion of State.

If this Contract is terminated by State because of Concessionaire's default, and if

Concessionaire becomes liable for any deficiency in rent and/or fees by way of damages or otherwise, or if at any time during the Contract term Concessionaire ceases to conduct in the Premises the business referred to herein below, then from and after the time of the breach causing this termination, or from and after the time of the cessation of business, all unpaid rent and/or fees prior to the breach causing termination or cessation of business shall become due and payable. The amount due shall be deemed to be the greater of: (a) the Minimum Rent provided herein, or (b) an amount based upon the average of the payments that have accrued to State as percentage rent during the twenty-four (24) months preceding the termination or cessation of business, unless the termination or cessation occurs within three (3) years of the beginning of the Contract term, in which event the previous twelve (12) (or fewer, if applicable) months shall be used as the basis of this average.

5. GROSS RECEIPTS

The term "Gross Receipts,” wherever used in this Contract, is intended to and shall mean all moneys, property, or any other thing of value received by or owed to

Concessionaire and any subconcessionaire or operator, if other than Concessionaire, through or in connection with the operation of the concession, including any concession related business carried on through the internet or catalog sales, or from any other business carried on or in connection with the Premises, or from any other use of the

Premises, and/or of any business of any kind that uses the names licensed by this

Contract, or that associates with or implies an endorsement by State, all without deduction. The term "Gross Receipts" shall not include any sales taxes imposed by any governmental entity and collected by Concessionaire.

6. USE OF PREMISES

The Premises shall be used by the Concessionaire for the operation of a food service and beach equipment rental facility. Food service shall include light meals, snack foods, and nonalcoholic beverages. Concessionaire may also use the Premises kitchen for the preparation of food for catering services. Beach equipment rentals may include, but is not limited to paddle boards, non-motorized boats, kayaks, canoes, rafts, shade canopies, volleyball sets, easy-up tents, and other beach equipment as approved by the District Superintendent or designee. Concessionaire may also sell sundry items which may include, but are not limited to, sunscreen, beach toys and games, towels, or other beach equipment as approved by the District Superintendent or their designee.

A. A sign identifying Concessionaire, including rental rate and hours of operation shall be displayed at the beach equipment rental facility. All signs shall adhere to the provisions in Section 19, Signs and Advertising. Sign locations and installation shall first be approved by the State.

B. All concession staff shall wear a uniform or other identification that can be easily identified by the public and park staff.

C. All beach equipment utilized by the public or concessionaire shall be of high quality and well maintained. If applicable, beach equipment rental must meet requirements set forth in current California boating laws and have current registration stickers and permanent registration (CF) numbers properly displayed in accordance with pertinent California boating laws.

D. Prior to each rental, Concessionaire shall include a safety, and skills orientation presentation for customers, including boating traffic awareness, and park rules. This presentation can be made available in a digital format.

E. Sequentially numbered rental agreements shall be read and signed by each renter and initialed by Concessionaire or Concessionaire designee. Rental agreement shall include, or have attached, a checklist that identifies any existing damage to the craft and contains a release of liability in favor of the State and/or

BOR. Rental agreements may be digital. All persons under 18 years of age must have written parental or legal guardian consent to rent.

F. Each renter shall be issued and required to wear, at all times, a U.S.

Coast Guard-approved Personal Floatation Device (PFD). The PFD shall be of a bright color contrasting with water, so as to be visible in open water conditions.

PFDs should be properly fitted to each visitor. At no time shall the maximum-rated passenger capacity of the vessel be exceeded.

G. All concession staff providing instruction to the public shall have valid CPR and First Aid certifications. Instructors must have appropriate training, certifications, and experience appropriate to the level of class being taught and for each type of paddle craft for which instruction is provided.

H. Concessionaire's on-site staff shall possess a working cellular phone or other device for emergency communication. Concessionaire shall immediately contact 911 in the event of an emergency. State Parks Dispatch should be contacted as soon thereafter as feasible to report any injury or non-injury accidents or incidents so that Park staff can respond. The names of concession staff as well as the names, addresses and phone numbers of concession patrons involved in the accident or incident and any related witnesses shall be collected and immediately made available to park staff. Concessionaire beach equipment rental will be made available for immediate use for emergency/law enforcement efforts.

I. Concessionaire shall conduct all operations in a manner that will not interfere with the use of private property.

J. Employees shall never be under the influence of alcohol or drugs while conducting concession operations. Violations shall constitute immediate dismissal of the concession employee.

K. The Use of Premises will be consistent with the State approved Operation

Plan, as proposed by Concessionaire and modified by State as is reasonable and necessary to meet the intention of the State for this concession operation and the mission of California State Parks. The approved Concessionaire’s

Operation Plan is incorporated herein and made part of this Contract as Exhibit H.

L. Concession services shall be provided between the hours of 11:00 AM and 7:00 PM, all weekends during the months of April, May, and September, and daily beginning the Friday before Memorial Day through Labor Day, or when the unit closes, whichever is earlier, during each year of the Contract. In the event

State deems the hours of operation inadequate for proper service to the public, State may require Concessionaire to adjust the days and/or hours of operation to a schedule provided by State. Concessionaire may remain open on other dates, observing same (or longer) hours, at Concessionaire's discretion with the concurrence of State. In the event of adverse weather or other operating conditions, State may permit the concession to close at any time during the term of this Contract. Where safety or health violations are present or where there has been a lapse in insurance or bond coverage, the District Superintendent shall require a concession to temporarily close for business. The concession shall not be allowed to reopen until the violations and/or deficiencies have been corrected to the satisfaction of the State.

M. Concessionaire shall not use or permit the Premises to be used in whole or in part during the term of this Contract for any purpose other than as herein set forth without the prior written consent of the State.

Concessionaire shall ensure a competent person shall be on the Premises at all times while the concession is in operation. If the on-site manager is other than the Concessionaire, State reserves the right to approve such manager.

7. LIABILITY WAIVER

Concessionaire shall require that a liability waiver, equivalent to the waiver attached hereto as Exhibit G Waiver of Liability and Release and incorporated herein by this reference, be executed between Concessionaire and each concession patron prior to the start of each rental. Such waiver is subject to the State’s approval and shall release State, its officers, employees and agents, and BOR, its officers, employees and agents from any liability resulting from any claim associated with services, equipment, and activities provided and facilitated on each rental. The liability waiver text shall be provided in advance to the concession patron in either hard copy or electronic form and must be signed by every person participating in each rental or tour within the Premises as permitted in this Contract. Concessionaire shall make signed liability waivers available to State inspection and shall provide copies upon request. All required waivers shall comply with any and all conditions precedent to insurance coverage as required herein.

8. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES

Concessionaire shall staff, operate, manage, and provide all goods, services, and facilities offered in a first-class manner and comparable to other high-quality concessions providing similar facilities and services. State reserves the right to prohibit or modify the sale or rental of any item, accommodation, or service for public safety and/or to ensure that the public receives, in the State’s view, fair pricing, proper service, and appropriate quality. Any changes to rates or charges to park visitors proposed by

Concessionaire shall be submitted in writing for the State’s approval but do not require a formal amendment to the contract. Rate changes may not be imposed retroactively.

9. EMPLOYEE ORIENTATION AND TRAININGS

All “Concession Personnel” (employees, staff, or volunteers) shall receive training to include an orientation on the State Park System, and local points of interest, provided by Concessionaire. Such orientation shall be sufficient to permit concession employees to reply adequately to inquiries from the visiting public. Training also shall include job or task-specific training necessary to ensure high-quality job performance in a manner consistent with the protection of the State Park System and its visitors.

Concessionaire’s Employee Training/Orientation Program is subject to approval by the

State.

Concessionaire shall train all Concession employees, staff, and volunteers in understanding the history, resources and culture of Folsom Lake State Recreation Area and expectations for customer service, which shall include disability awareness and how to accommodate visitors with disabilities.

Security: Concessionaire will require all concession employees, staff and volunteers in positions of special trust as determined at the sole discretion of the District

Superintendent or designee to undergo a background check, including references and fingerprints, to ensure that the individual has an acceptable record as a law-abiding citizen. Positions of special trust include, but are not limited to, those members of concessionaire’s staff that will have direct contact with minors, the elderly, special-needs persons or other vulnerable populations. The background check must comply with all California laws pertaining to background checks including but not limited to

California Government Code sections 12952 and Labor Code section 432.7. The background checks shall be equivalent to the California Department of Justice’s Live-

Scan Program. Background check reports shall be provided to the State as requested. Concessionaire shall be responsible for all costs associated with said background checks. Concessionaires shall assess whether any criminal conviction have a direct and adverse relationship to the duties of the positions of special trust, and if so, consider it as a basis for removing the employee from that position, disqualifying an applicant or revoking an offer of employment.

10. ALCOHOLIC BEVERAGES

Notwithstanding anything to the contrary, the sale of liquor, beer, or other alcoholic beverages on the Premises is expressly prohibited. Exception to this restriction may be allowed through the special event permit process, as approved by

State.

11. HEALTHY FOODS INITIATIVE

As the primary food providers in California State Parks, participation by concessionaires in the State’s efforts to promote healthy and sustainable food practices is critical. To that end and in accordance with State’s mission to provide for the health of

Californians, Concessionaire shall promote the importance of healthy, locally and sustainably grown, organic foods, and shall use sustainable practices, organic ingredients, and recycled products whenever possible. These practices shall include the following:

A. To the extent possible, Concessionaire shall develop a network of local farmers and ranchers who are dedicated to sustainable agriculture and can assure a steady supply of pure and fresh ingredients.

B. Concessionaire shall offer a selection of food and beverage items that conform to the definition of healthy foods as defined by the U.S.

Department of Agriculture and the Food and Drug Administration in the

Code of Federal Regulations, Title 9, Section 317 and Title 21, Section

101.

1) Concessionaire shall offer a selection of beverages with no sugar added, such as bottled water, natural fruit juices, and tomato juice.

2) To the extent possible, Concessionaire shall provide food products that are as pure and natural as possible, without synthetic additives, pollutants, or unnecessary packaging and marketing.

12. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL

During the term of this Contract at Concessionaire's own cost and expense, Concessionaire shall maintain the Premises and areas in, on, or adjacent to a distance of not less than fifty (50) feet, including personal property and equipment, in a clean, safe, wholesome, and sanitary condition free of trash, garbage, or obstructions of any kind. Removal and disposal of all rubbish, refuse, and garbage resulting from concession's operations shall be the Concessionaire’s responsibility and shall be disposed of outside the park unit and in accordance with applicable laws and local ordinances. All trash containers and/or trash bins shall be adequately screened to the satisfaction of State. Concessionaire shall remedy without delay any defective, dangerous, or unsanitary conditions.

A. Housekeeping: Housekeeping activities are defined as all those activities concerned with keeping facilities clean, neat, and orderly, and includes, but is not limited to, mowing, raking, sweeping, vacuuming, mopping, stripping, waxing, dusting, wiping, washing, hosing, and other general care or cleaning of interior and exterior floors, walls, ceilings, doors, windows, facility fixtures, and all adjacent grounds and walks. Concession housekeeping shall conform to

California State Park standards as stated in Chapter 16 (Facilities Maintenance) of the Department Operations Manual.

B. Maintenance and Repairs: Concessionaire shall maintain all concession facilities, and personal property, and equipment on the Premises in good condition and repair at Concessionaire's sole cost and expense at all times during the term of this Contract. Such maintenance shall conform to State Park standards as stated in Chapter 16(Facilities Maintenance) For the purposes of this Contract, the term “maintenance” is defined as all repair and preservation work necessary to maintain concession facilities and personal property and equipment in a good state of repair, as well as to preserve them for their intended purpose for an optimum useful life.

Should Concessionaire fail, neglect, or refuse to undertake and complete any required maintenance, State shall have the right to perform such maintenance or repairs for Concessionaire. In this event, Concessionaire shall promptly reimburse State for the cost thereof provided that State shall first give

Concessionaire ten (10) days written notice of its intention to perform such maintenance or repairs. State shall not be obligated to make any repairs to or maintain any improvements to the Premises. Concessionaire hereby expressly waives the right to make repairs at the expense of State and the benefit of the provisions of §1941 and 1942 of the Civil Code of the State of California relating thereto if any there be. State has made no representations respecting the condition of the Premises, except as specifically set forth in this Contract.

C. Removal and Restoration. At the expiration or sooner termination of this

Contract, Concessionaire at its own expense shall remove all personal property brought onto the Premises by Concessionaire. Concessionaire, at

Concessionaire's expense, shall restore and repair the Premises, and any of

Concessionaire's improvements or fixtures remaining thereon, to a good, clean, safe, and fit condition, reasonable wear and tear expected, and shall completely remedy all injuries to the Premises.

13. RESOURCE CONSERVATION

A. Environmental Conservation Program: Concessionaire shall set a positive example in waste management and environmental awareness that shall lead to preservation of the resources of the State. Accordingly, Concessionaire shall prepare and execute a program, subject to the prior written approval of the State, designed to reduce environmental impacts that result from concession operations. This program shall address, but not be limited to solid waste management, including reduction, reuse and recycling; water and energy conservation, pest management, grease removal and disposal, hazardous materials handling and storage, and air quality. Specifically, the program must include the following:

1) Recycling and Beverage Container Programs: The Concessionaire shall implement a source reduction and recycling program designed to minimize concession and patron use of disposable products, per Public

Contract Codes §12161 and 12200 et seq. Reusable and recyclable products are preferred over "throwaways.” Where disposable products are needed, sustainable packaging shall be used in accordance with the

Sustainable Packaging Act of 2018 (SB 1335). No Styrofoam containers or other non-biodegradable containers are to be used or sold by

Concessionaire. The use of "post-consumer" recycled products is encouraged wherever possible.

The Concessionaire shall participate in the California beverage container redemption/recycling program. Products to be recycled include, but are not limited to, paper, newsprint, cardboard, bimetal, plastics, aluminum and glass. At the start of each Contract Year, Concessionaire and State shall review items sold, and containers or utensils used or dispensed by Concessionaire, and, whenever possible, eliminate the use of non-returnable or non-recyclable containers or plastics.

2) Water and Energy Conservation: The Concessionaire shall implement water and energy conservation measures. As new technologies are developed, Concessionaire shall explore the possibility of integrating them into existing operations where there is potential for increased efficiency, reduced water or energy consumption, and/or reduced impacts on the environment.

3) Erosion Control/Water Quality/Environmental Sensitivity: The

Concessionaire shall comply with all requirements set forth by various oversight agencies that have jurisdiction and oversight authority relating to the Premises and surrounding properties, including, but not limited to, erosion control, water quality and environmental sensitivity standards.

B. Resource Management and Preservation: Concessionaire shall comply with State’s resource management and preservation mandates in the conduct of all activities that impact cultural, natural, or scenic resources. These mandates include the Public Resources Code §5024, 5097 et seq. and §21080.3, the

Department Operations Manual Chapter 300, Department’s cultural resource directives and Secretary of the Interior’s Guidelines for Historic Preservation.

C. Air and Water Pollution Violation: Under State laws, Concessionaire shall not be (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to §13301 of the

Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution.

D. Environmental Compliance and Resource Protection: The concessionaire shall comply with State’s Cultural and Natural resource management mandates in the conduct of all activities that may potentially affect cultural, natural, and/or scenic values. These mandates include, but are not limited to, the California

Environmental Quality Act (CEQA/PRC 21074), the Memorandum of

Understanding between California State Parks and the Office of Historic

Preservation Executive Orders W-26-92 and B-10-11, Departmental Notice 2004-

02, PRC §5024, §5024.5 and §5097 et seq., the Native American Graves

Protection and Repatriation act (NAGPRA) (PL 101-601, 25 U.S.C. 3001 et seq., 104 stat. 3048) the Secretary of the Interior’s Standards for the Treatment of

Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring &

Reconstructing Historic Buildings, the California Endangered Species Act, the

Federal Endangered Species Act, the Clean Air Act, the Clean Water Act, and the Porter Cologne Water Quality Act. When an undertaking has a Federal nexus, the National Historic Preservation Act (NHPA)-Section 106 (36 CFR Part

800.1 to 800.16) and the National Environmental Policy Act (42 U.S.C. §4321) will be required as well. The California State Parks Departmental Operations

Manuals (DOM 300, 400, and 2000) for natural and cultural resources shall also be complied with for projects with the potential to affect resources.

All resource management projects proposed within the Premises will be undertaken with the oversight provided by the appropriate State staff, specifically

Environmental Scientists, State Historians, and State Archaeologists.

Sensitive information will be safeguarded from general public distribution as required by state and federal law (California Government Code Section

65040.2(g)(3); 6254.10; 43 CFR 7, Section 7.18(a)).

14. HAZARDOUS SUBSTANCES

A. On the Premises, Concessionaire shall not:

1) Keep, store, or sell any goods, merchandise, or materials that are in any way explosive or hazardous except as provided for under Sub-

Section C, below.

2) Undertake or engage in any offensive or dangerous trade, business, or occupation; or

3) Use or operate any machinery or apparatus that shall injure the

Premises or adjacent buildings in any way.

B. Nothing in this Section shall preclude Concessionaire from bringing, keeping, or using on or about said Premises such materials, supplies, equipment, and machinery as is appropriate or customary in conducting Concessionaire’s business.

C. Storage of Hazardous Materials: Concessionaire shall comply with all applicable laws and best practices pertaining to the use, storage, transportation, and disposal of hazardous substances. Gasoline, oil and other materials considered under law or otherwise to be hazardous to public health and safety shall be stored, handled, and dispensed as required by present or future regulations and laws.

D. Concessionaire shall protect, indemnify, defend, and hold harmless the

State or any of its affiliates, successors, principals, employees, or agents against any liability, cost, or expense, including attorney fees and court costs, arising from illegal use, storage, transportation, or disposal of any hazardous substance, including any petroleum derivative, by Concessionaire. Where Concessionaire is found to be in breach of this provision due to the issuance of a government order directing Concessionaire to cease and desist any illegal action in connection with a hazardous substance, or to remediate a contaminated condition directly caused by Concessionaire or any person acting under Concessionaire’s direct control or authority, Concessionaire shall be responsible for all cost and expense of complying with such order, including any and all expenses imposed on or incurred by the State in connection with or in response to such government order. Notwithstanding the foregoing, in the event a government order is issued naming Concessionaire, or Concessionaire incurs any liability during or after the term of the Contract in connection with contamination that preexisted the

Concessionaire’s obligations and occupancy under this Contract or prior contracts, or that were not directly caused by Concessionaire, the State shall be solely responsible as between Concessionaire and the State for all expenses and efforts in connection therewith, and State shall reimburse Concessionaire for all reasonable expenses actually incurred by Concessionaire therewith.

E. Certification: Upon termination of this Contract, when requested by State, Concessionaire shall provide certification prepared by a Certified Industrial

Hygienist that there is no hazardous waste contamination and/or damage to the

Premises.

15. PEST CONTROL ACTIVITIES

Pest inspections shall be performed regularly as determined by the State.

Concessionaire will remedy all pest infestations in a timely manner. Concessionaire shall provide to State copies of all pest inspection reports or other professional assessments of the condition of the facilities.

All pest control activities, chemical and non-chemical, shall be approved by the

State prior to action by the Concessionaire. Concessionaire, or the pest control business acting on behalf of Concessionaire, shall submit a DPR 191, Pest Control

Recommendation (or equivalent) to the State for approval. The State has fourteen (14) days to approve or deny the request. Such approval shall be solely for compliance with

State’s policies and in no way shall relieve Concessionaire or its contractors, employees, agents or representatives from compliance with all laws and regulations concerning such activities and from carrying out the work in a workmanlike manner.

Concessionaire, or the pest control business acting on behalf of Concessionaire, shall submit a report of completed work for each pest management action to the State no later than seven (7) days after performance of the work. The report may be submitted on a DPR 191, Pest Control Recommendation (or equivalent information).

16. UTILITIES AND SERVICES

Concessionaire shall be responsible for all costs associated with the installation and provision of all utilities necessary to and used in connection with the Premises, including but not limited to refuse and sewage disposal. When installing facilities, no trees shall be trimmed or cut without permission of State.

17. EQUIPMENT

Concessionaire, at Concessionaire's own expense, shall completely equip the concession improvements described herein and shall keep the same equipment in a safe and first-class manner throughout the term of this Contract.

18. PERSONAL PROPERTY

Except to the extent covered by Section 24 Modifications, Additions, Title to

Improvements, title to all personal property provided by Concessionaire shall remain with Concessionaire. Concessionaire shall not attach any personal property to any building without first obtaining State’s written approval. Unless approved in writing by

State, all property attached to real property will be considered a real property improvement and shall become property of State at the time this Contract is terminated.

19. SIGNS AND ADVERTISING

No signs, logos, names, placards, or advertising matter shall be inscribed, painted, or affixed upon Premises, circulated, or published, including electronically or on the internet, without prior written consent of the State and only consistent with the purposes of the Contract.

20. PHOTOGRAPHY

State may grant permits to persons or corporations engaged in the production of still and motion pictures and related activities for the use of the Premises for such purposes when such permission shall not interfere with the primary business of

Concessionaire. Such permits shall not be deemed to be a competitive activity with regard to Concessionaire’s rights to possession and operation under this Contract.

21. INTELLECTUAL PROPERTY RIGHTS

A. Clarify Ownership of Pre-existing Intellectual Property Rights: Other than as specifically identified and authorized in this Contract, no names, logos, trademarks or copyrighted materials belonging to and/or associated with

California State Parks shall be used, circulated, or published without the express written consent of the State. Further, no such use, even if permitted herein, or otherwise, shall be deemed to instill in Concessionaire any rights of ownership on such names, logos, trademarks, copyrights or other materials, and any rights to such use shall not, under any circumstances, continue beyond the term of the

Contract.

Any trademarks and/or copyrights belonging to Concessionaire prior to the commencement of the Contract must be disclosed in writing and shall remain in

Concessionaire’s sole ownership upon termination of the Contract.

During the course of this relationship, Concessionaire shall use the name, [Name] in connection with Concessionaire’s performance under this Contract and may not use any additional and/or different names, trademarks or logos in association with this Concessionaire’s performance under this Contract except as authorized by written license agreement. Concessionaire warrants that its use of

“[NAME]” is permitted by law and not the subject of any competing claims of ownership.

B. Ownership of New Logos and Trademarks Developed During

Contract: Any names, logos, and/or trademarks developed during and/or pursuant to this Contract that in any way associate with, identify or implicate an affiliation with the State or the historical or cultural resources connected to the

Premises, and/or are funded by the State shall be approved in writing by the

State, shall belong to the State upon creation, subject to express written agreement otherwise, and shall continue in the State’s exclusive ownership upon termination of the Contract. Further, all goodwill and other rights in said marks shall inure to the benefit of the State as the mark owner.

C. Ownership of new Copyrights, Developed by Concessionaire for the State, Absent a Separate Written Agreement: Any copyrighted materials developed and created by Concessionaire for the State during the term of this Contract shall be deemed to be “works for hire” under the United States Copyright Act 17 USC

§101 et seq. and shall, unless otherwise agreed to in writing, belong to the State upon creation, and continue in the State’s exclusive ownership upon termination of this Contract. Unless otherwise agreed to in writing, Concessionaire intends and agrees to assign to the State all rights, title, and interest in and all works created pursuant to this Contract as well as all related intellectual property rights.

Concessionaire agrees to cooperate with the State and to execute any document reasonably necessary to give the foregoing provisions full force and effect including, but not limited to, an assignment of copyright.

D. Concessionaire Rights in Separately Created Works: Any copyrighted materials and/or trademarks developed and created by Concessionaire separate and apart from this Contract, shall belong to Concessionaire, and shall continue in Concessionaire’s exclusive ownership upon termination of this Contract. In the event that any trademarks and/or copyrights are created by Concessionaire during the term of this Contract and same are proposed for use in connection with Concessionaire’s performance under the Contract, Concessionaire shall promptly notify the State in writing of its intention to retain ownership in the specific trademarks and/or copyrights.

E. If Concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of California Public Resources Code Section

5080.22(a), the Concessionaire shall forfeit the right to bid on any future state park concession contracts to the extent authorized by federal law. 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.

22. GRANT OF STATE’S TRADEMARK LICENSE

State hereby grants Concessionaire, and Concessionaire hereby accepts a non-exclusive, non-assignable license to use the California State Parks Logo (sometimes referred to as the “Trademark” or “Mark”), [as well as other names, logos, or marks] created and owned by State, in accordance with the terms and conditions of the

License/Permission for Use of Trademarks which is attached hereto as Exhibit F and is incorporated herein by this reference. After signature by both Concessionaire and the

State, this License shall authorize the use of the Trademark and associated goodwill, in connection with this Contract only.

A record of each authorized use by Concessionaire of the Trademark shall be maintained by Concessionaire and by the State.

Concessionaire and the State will use the California State Parks name, Trademark, and brand consistent with the California State Park Brand Standards

Handbook available at https://www.parks.ca.gov/?page_id=22338

The California State Parks name, Trademark and brand will not be used on

Concessionaire social media pages.

23. PARTICIPATION IN STATE PARK MARKETING PROGRAMS

Concessionaire acknowledges that the State has an established advertising and marketing program designed to promote additional revenue for the State and to deliver a consistent and positive image to the public, and Concessionaire agrees to participate in this program in the manner described below without compensation from the State for such cooperation. Any programs established following execution of the contract will be implemented upon mutual consent by Concessionaire and State.

A. Concessionaire agrees to honor all statewide graphic standards, licensing, and merchandising agreements entered into with corporate sponsors of the

State.

B. Concessionaire agrees to place on the Premises any advertising that the

State approves under this program. Any advertising approved by the State under this program will be placed at State’s expense.

C. Concessionaire agrees to rent or sell, along with all other items of merchandise that are part of the Concessionaire’s normal and customary inventory, any item of merchandise that the State approves under this program, provided that Concessionaire is authorized to sell or rent it under the terms of the

Contract, and the Concessionaire receives reasonable compensation for its sale.

24. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS

In the event that Concessionaire desires to make modifications, improvements, or additions to the Premises or any part of the Premises, including changes to structural design, required accessibility barrier removal work, landscape design, or interior or https://www.parks.ca.gov/?page_id=22338 exterior fixtures, design, and/or furnishings, (collectively Alteration(s)), the approval in writing of State shall be obtained prior to the commencement of any Alterations. State shall dictate the plan approval process.

Once any Alteration has been approved by State and the work has begun, Concessionaire shall, with reasonable diligence, pursue to completion all approved

Alterations. All work shall be performed in a good and workmanlike manner, shall substantially comply with plans and specifications submitted to State as required herein, and shall comply with all applicable governmental permits, laws, ordinances, and regulations. It shall be the responsibility of Concessionaire, at its own cost and expense, to obtain all licenses, permits, and other approvals necessary for the construction of approved Alterations.

Title to all Alterations and improvements existing or hereafter erected on the

Premises, regardless of who constructs such improvements, shall immediately become

State's property and, at the end of the Term, shall remain on the Premises without compensation to Concessionaire. Concessionaire agrees never to assail, contest, or resist title to the Alterations and improvements. The foregoing notwithstanding, State may elect, by notice to Concessionaire, that Concessionaire must remove any

Alterations that are peculiar to Concessionaire's use of the Premises and are not normally required or used by State and/or future occupants of the Premises. In this event, Concessionaire shall bear the cost of restoring the Premises to its condition prior to the installment of the Alterations.

25. BONDS

A. All bonds required under this Contract must be in a form satisfactory to

State, issued by a corporate surety licensed to transact surety business in the

State of California.

B. Performance Bond: Concessionaire, at Concessionaire's own cost and expense, agrees to obtain and deliver to State, prior to the Commencement Date of this Contract and prior to entering the Premises, and shall maintain in force throughout the term of this Contract, a valid Performance Bond (which shall be renewed annually) in the sum of six month’s rent payable to the State. This bond shall ensure faithful performance by Concessionaire of all the covenants, terms, and conditions of this Contract inclusive of, but not restricted to, the payment of all rentals, fees, and charges and prompt performance of and/or payment for all maintenance obligations. In lieu of a bond, the Concessionaire may substitute another financial instrument (such as a Cashier’s Check, Certificate of Deposit, Irrevocable Standby Letter of Credit, Money Market

Account, or a Standby Letter of Credit), which must be sufficiently secure and acceptable to State. At least thirty (30) days prior to the expiration or termination of said bond or acceptable financial instrument, a signed endorsement or certificate showing that said bond or financial instrument has been renewed or extended shall be filed with the State. Within fifteen (15) days of State’s request, Concessionaire shall furnish State with a signed and complete copy of the valid bond or financial instrument.

C. Concessionaire acknowledges that allowing the Performance Bond or other security instrument(s) to expire or otherwise terminate and/or allowing the total secured amount to fall below the security required herein will cause State to incur costs and significant risks not contemplated by this Contract, the exact amount of which will be difficult to ascertain. These costs include, but are not limited to, administrative costs and other expenses necessary to ensure continued performance of services for the public and protection of the Premises.

Accordingly, if Concessionaire allows the Performance Bond or other security instrument to expire or otherwise terminate and/or allows the total secured amount to fall below the security required pursuant to this Contract, Concessionaire shall pay to State an amount equal to five percent (5%) of the required security or five hundred dollars ($500), whichever is greater. The parties agree that this charge represents a fair and reasonable estimate of the costs

State…