Sample_Contract_CasadeRodriguez_P25CA005.pdf

CONCESSION CONTRACT

FOR

2737 San Diego Avenue

Historic-Style Specialty Retail Concession

AT

Old Town San Diego State Historic Park

STATE OF CALIFORNIA – NATURAL RESOURCES AGENCY

DEPARTMENT OF PARKS AND RECREATION

PARTNERSHIPS DIVISION

715 P STREET, 13TH FLOOR

SACRAMENTO, CA 95814

P25CA005

ConcessionaireName Concession Contract P25CA005 Old Town San Diego State Historic Park i

Historic-Style Specialty Retail

INDEX

1. DESCRIPTION OF PREMISES

2. CONDITION OF PREMISES

3. TERM

4. RENT

5. GROSS RECEIPTS

6. OTHER FINANCIAL REQUIREMENTS

7. USE OF PREMISES

8. HISTORIC PARK AND INTERPRETATION

9. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES

10. EMPLOYEE ORIENTATION AND TRAINING

11. ALCOHOLIC BEVERAGES

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. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS

25. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS

26. BONDS

27. INSURANCE

28. HOLD HARMLESS AGREEMENT

29. COMPLIANCE WITH LAWS, RULES, REGULATIONS AND POLICIES

ii

30. GENERATIVE AI REQUIREMENTS

31. DISABILITIES ACCESS LAWS

32. NONDISCRIMINATION

33. DRUG-FREE WORKPLACE

34. CONFLICT OF INTEREST

35. EXPATRIATE CORPORATIONS

36. NATIONAL LABOR RELATIONS BOARD CERTIFICATION

37. CHILD SUPPORT COMPLIANCE ACT

38. CARDHOLDER DATA SECURITY

39. RECORDS AND REPORTS

40. TAXES

41. PERFORMANCE EVALUATIONS AND INSPECTIONS

42. DEFAULT BY CONCESSIONAIRE

43. STATE’S REMEDIES

44. DEFAULT BY STATE

45. SURRENDER OF THE PREMISES; HOLDING OVER

46. NO RECORDATION; QUITCLAIM

47. ATTORNEY’S FEES

48. WAIVER OF CLAIMS

49. WAIVER OF CONTRACT TERMS

50. INTERPRETATION OF CONTRACT

51. DURATION OF PUBLIC FACILITIES

52. EMINENT DOMAIN

53. TEMPORARY TENANCY

54. SECTION TITLES

55. INDEPENDENT CONCESSIONAIRE

56. ASSIGNMENTS AND SUBCONCESSIONS

57. MODIFICATION OF CONTRACT

58. UNENFORCEABLE PROVISION

59. APPROVAL OF CONTRACT

60. CONTRACT NOTICE

iii

61. STATE’S DISTRICT SUPERINTENDENT

62. FORCE MAJEURE

63. DEFINITIONS

EXHIBIT A – THE PREMISES

EXHIBIT B – DPR 54, CONCESSIONAIRE’S MONTHLY REPORT OF OPERATION . 66

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 – CONSUMER PRICE INDEX ADJUSTMENT FORMULA

EXHIBIT H – CONCESSIONAIRE’S OPERATION PLAN

EXHIBIT I – CONCESSIONAIRE’S FACILITY IMPROVEMENT PLAN

EXHIBIT J – CONCESSIONAIRE’S INTERPRETIVE PLAN

EXHIBIT K – CONCESSIONAIRE’S VOLUNTEER WAIVER FORM

EXHIBIT L – STD 1000 (GEN AI)

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION

For

2737 San Diego Avenue

Historic-Style Specialty Retail Concession

Located In

Old Town San Diego State Historic Park

San Diego 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 section 5003 authorizes the Department of Parks and Recreation to administer, protect, develop, and interpret property under its jurisdiction for the use and enjoyment of the public; and

WHEREAS, the California Public Resources Code section 5080.03 authorizes State to enter into concession contracts for the safety and convenience of the general public in the use and enjoyment of, and the enhancement of recreational and educational experiences within the state park system; and

WHEREAS, Old Town San Diego State Historic Park is part of the state park system; and

WHEREAS, in accordance with California Public Resources Code section

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, Concessionaire was awarded this Contract as the best responsible bidder; and

WHEREAS, it is appropriate that this Contract be entered into for the operation of lands and facilities pursuant to the authorities set forth above.

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 historic-style specialty retail concession in

Old Town San Diego State Historic Park (OTSDSHP) at the Casa de Rodriquez building located at 2737 San Diego Avenue and set forth within the approximate delineated red dashes for the indoor concession premises, the approximate delineated blue dashes for the outdoor concession premises, the approximate green area showcases the required landscape maintenance area as set forth in Exhibit A, attached to and made a part of this Contract (the "Premises").

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, with the State’s option to extend an additional five (5) years, commencing on the first day of the month following approval by the California Department of General Services (the

“Commencement Date”). 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 46, Surrender of the Premises; Holding Over, with continuous Consumer Price Index adjustment, as defined below, subject otherwise to all the terms and conditions of this Contract.

Concessionaire further acknowledges that commensurate with the success of the concession services described herein, at State’s sole discretion, State will initiate a process to either negotiate or competitively bid this concession operation as appropriate prior to the term expiration.

Upon approval of this contract by the Department of General Services, the previous concession contract 53667-14-14 will be deemed terminated.

4. RENT

A. For the first three (3) Contract Years, Concessionaire shall pay rent at eight (8%) percent of Gross Receipts.

B. Beginning with Contract Year 4, Concessionaire shall pay, without offset, deduction, prior notice, or demand, as "Minimum Annual Rent” the sum of fifty thousand dollars ($50,000) annually or eight (8%) percent of Gross Receipts, whichever sum is greater.

C. At end of Contract Year Five (5) and on the last day of each fifth

Contract Year thereafter herein referred to as the “Subject Contract Year”, the

Minimum Annual Rent ($50,000) shall be adjusted to reflect changes in the

Consumer Price Index (CPI). Such CPI adjustments shall be made in accordance with the procedure set forth in Exhibit G, attached to and made a part of this Contract. The CPI adjustments shall be capped at 3% per adjustment.

D. 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 61, 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 a 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 63 (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.

E. 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, 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 sub-concessionaire 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 or mandatory fee imposed by any governmental entity; optional gratuities to Concessionaire staff, and revenue from any item of merchandise sold where all profits are remitted to the State.

6. OTHER FINANCIAL REQUIREMENTS

A. Facility Improvements:

Concessionaire shall plan, design, construct, and complete all concession

Facility Improvements as described in Concessionaire’s Facility

Improvement Plan, attached hereto as Exhibit I, without cost to State and in compliance with Contract Section 24 Guidelines for Construction and

Completion of Improvements, with a minimum expenditure of fifty thousand dollars ($50,000). Any penalties, lien charges, and/or costs to resolve construction related disputes shall not be included in the minimum expenditure amount. As consideration for the required facility improvements, Concessionaire may take a credit for its expenditures under this Paragraph 6A to be applied toward its rent obligations as further set forth in this contract. After completion of all concession facility improvements and acceptance by State, if there remains an unspent balance of the fifty thousand dollars ($50,000), Concessionaire shall pay this unspent balance to State as an additional rental payment within thirty

(30) days from State’s acceptance of the concession facility improvements.

1) Timeline of Facility Improvements:

Concessionaire shall complete the following:

a) By the end of Contract Year one (1):

(1) Repair roof coverings and flashings;

(2) Service roof drainage system;

(3) Perform water heater maintenance;

(4) Service water lines and drains throughout building;

(5) Repair damaged flooring throughout building;

(6) Repair settlement cracks throughout building;

(7) Install handrails on stairs leading to second floor inside building;

(8) Repair single pane windows at the rear of the building;

(9) Remove and prune vegetation in contact with the roof;

(10) Identify wood-destroying pests with a pest company and mitigate any pest issues identified.

b) By the end of Contract Year three (3):

(1) Relocate electrical panel from closet and bathroom areas;

(2) Replace outlets with Ground Fault Circuit Interrupters

(GFCI) throughout building;

(3) Address plumbing issues with faucets, sinks, and toilets;

(4) Repair eave framing damage;

(5) Correct the perimeter slope;

(6) Repair deteriorated wood retaining walls.

B. Rent Credit:

With State approval, Concessionaire may apply a rent credit toward the monthly rent obligation set forth in Paragraph 4A for the first three (3)

Contract Years only. Concessionaire must provide verification of Facility

Improvement expenditures to qualify for the rent credit, which is not to exceed fifty thousand dollars ($50,000) in the aggregate. Facility

Improvement expenditures must be listed on the Concessionaire’s

Monthly Report of Operation (form DPR 54).

C. Facility Maintenance and Improvement Account:

Concessionaire will establish a Facility Maintenance and

Improvement Account (FMIA) with a financial institution licensed to do business in California and acceptable to the State no later than thirty (30) days from the Commencement Date. This financial requirement is separate from the required expenditures for Facility Improvements set forth in Exhibit I and Section 6A.

No later than 15 days before the end of each month, Concessionaire shall deposit in the account an amount equal to two percent (2%) of the monthly Gross Receipts from the previous month.

Concessionaire shall make its first deposit beginning the first month after the Commencement Date of this Contract.

The FMIA shall be interest-bearing, with all interest accruing to the account. The FMIA will generate monthly account statements directly to the State. Any withdrawal from this account requires prior approval from the State’s authorized representative.

Concessionaire shall use monies held within the FMIA within the

Premises for upgrades or projects, which provide for the sustainability, improvement and benefit of the park unit and the general public, as set forth in the Facility Improvement Plan, Exhibit I. Any such projects or upgrades shall be completed consistent with Section 25 Modifications, Additions, Title to Improvements. All expenditures shall be mutually agreed upon by both parties annually. Concessionaire shall report monthly deposits and expenditures on the DPR 54 Concessionaire’s Monthly

Report of Operation, Exhibit B.

Any balance remaining in this FMIA at the end of the contract term, shall be paid to the State, placed in the State Park Contingent Fund to be used to complete the Concessionaire’s incomplete and unfulfilled obligations under this Section 6C (as set forth in Facility Improvement

Plan I) to the Premises. Upon completion of all outstanding and unfulfilled obligations, or five (5) years following the termination or expiration of this

Agreement, whichever occurs first, the funds shall thereafter be treated as rent.

7. USE OF PREMISES

The Premises shall be used by the Concessionaire for historic-style specialty retail.

A. Concessionaire shall create and present through physical facilities, interior furnishings, merchandise, and operational style and format, an attractive environment that captures and conveys the historical, cultural, ethnic, and geographic themes of the American Period.

B. Interpretive Plan: Concessionaire shall provide a retail operation that creates and perpetuates as closely as possible the American Period of

1856-1872 for the Premises. All aspects of the concession’s décor and ambiance, including furnishings, lighting, counters, shelving, window treatments, display pieces, music, retail products, and interior and exterior signage, shall be appropriate to the American Period and shall be approved by the District Superintendent or their designee.

C. Concessionaire shall disguise modern equipment or hide it from public view; this includes but is not limited to cash registers, fans, and credit card machines.

D. Concessionaire shall ensure that any music played must be appropriate to the American Period and audible only within the boundary/footprint of the concession facility and shall be approved by the District Superintendent or their designee. Music that is not of the time period, such as contemporary music, is not allowed. All entertainers must be in historic period attire and play instruments from the park’s interpretive periods unless otherwise approved in writing by the State. Concessionaire shall be solely responsible for any liability associated with licensing and royalties for music.

E. All Concession Personnel visible to or engaging with the public shall be dressed in attire appropriate to the American Period and the retail business being depicted. All entertainers must be in historic period attire and play instruments from the American Period unless otherwise approved in writing by the State.

F. Concessionaire shall propose an Operation Plan, Facility Improvement

Plan, and Interpretive Plan that is consistent with the Use of Premises as set forth in this contract. State may modify the plans as is reasonable and necessary to meet the intention of the State for this concession operation and the mission of California State Parks. Once State has approved

Concessionaire’s Operation Plan, Facility Improvement Plan, and

Interpretive Plan, the plans will be incorporated herein and made part of this Contract as Exhibits H, I, and J, respectively.

G. Concession services shall be provided seven days a week. Details for each season to follow:

DATES DAYS HOURS

Winter Season:

November 1 – Last Day of

February

Daily 10:00 a.m. - 6:00 p.m.

Spring Season:

March 1 – Thursday before

Memorial Day Weekend

Monday - Thursday

Friday - Sunday

10:00 a.m. - 6:00 p.m.

10:00 a.m. - 7:00 p.m.

Summer/Fall Seasons:

Friday of Memorial Day

Weekend – October 31

Monday – Sunday 10:00 a.m. - 7:00 p.m.

Except for the fourth Thursday in November and December 25th at which time the concession may close, 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.

H. 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.

I. 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.

8. HISTORIC PARK AND INTERPRETATION

The Concessionaire shall provide and carry out an Interpretive Plan as set forth in Section 7. Use of Premises, Section 8. Historic Park and Interpretation, and in the

Request for Proposal document, approved by the State and hereby made a part of this contract and identified as the Interpretive Plan, Exhibit J. State shall have the right to review and approve all facets of Concessionaire's Interpretive Plan. Additionally, Concessionaire agrees to adjust the scope, content, methodology, and/or presentation of its Interpretive Plan throughout the term of this contract to meet State's program policies, guidelines, and professional standards as determined by State.

9. 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 does not require a formal amendment to the contract. Rate changes may not be imposed retroactively.

10. EMPLOYEE ORIENTATION AND TRAINING

All Concession Personnel 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 Personnel 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 Personnel in understanding the history, resources and culture of OTSDSHP and expectations for customer service, which shall include disability awareness and how to accommodate visitors with disabilities.

Security: Concessionaire will require all Concession Personnel 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.

11. 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 the

State.

12. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL

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 seventy four (74) feet to the south of the building, ten (10) feet to the north of the building, ten (10) feet to the east of the building, five (5) feet to the west of the building, 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 8 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 8 of the Department Operations Manual. 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 on 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;

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 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 equipped in a safe and first-class manner throughout the term of this Contract.

18. PERSONAL PROPERTY

Except to the extent covered by Section 25, 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 State, or the 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.

Concessionaire has not identified any such trademarks or copyrights.

During the course of this relationship, Concessionaire shall operate the concession as [Name] and shall only use this 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.

Concessionaire is solely responsible for determining whether a fictitious business name statement/dba is necessary for its lawful operation of the Premises. Should

Concessionaire file a fictitious business name statement/dba, Concessionaire agrees to notify State and provide copies of the application and approval by the appropriate state or local entity. Concessionaire agrees to complete all necessary steps, including filing the requisite forms and filing fees, to abandon such dba/fictitious business name statement at the termination of this Contract.

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. Construction Projects and/or Concessionaire Deliverables: As stated above, any works developed by Concessionaire pursuant to this Contract, including all related copyrights and other proprietary rights therein, shall be deemed to be “works for hire” under the United States Copyright Act, 17 USC

§101 et seq., and shall belong to the State upon creation, and continue in the

State’s exclusive ownership upon termination of this Contract. These works shall include, but are not limited to, all drawings, designs, reports, specifications, notes, and other works developed in the performance of this Contract. Upon request, Concessionaire shall deliver to the State the disk or tape that contains the design files of any work that is performed with the assistance of Computer

Aided Design and Drafting (CADD) technology and shall specify the supplier of the software and hardware necessary to use said design files. Operator intends and agrees to assign to the State all rights, title, and interest in and to such materials as well as all related copyrights and other proprietary rights therein, unless otherwise agreed to in writing.

Concessionaire warrants that it is the sole exclusive owner and has the full right, power, and authority over all tangible and intangible property deliverable to the State in connection with this Contract, and that title to such materials conveyed to the State shall be delivered free and clear of all claims, liens, charges, judgments, settlements, encumbrances, or security interests.

Concessionaire agrees not to incorporate into or make any deliverables dependent upon any original works of authorship or Intellectual Property Rights of third parties without (1) obtaining the State’s prior written permission, and (2) granting to or obtaining for the State a nonexclusive, royalty-free, paid-up, irrevocable, perpetual, world-wide license to use, reproduce, sell, modify, publicly and privately perform, publicly and privately display, and distribute, for any purpose whatsoever, any such prior works.

Concessionaire further warrants that all deliverables do not infringe or violate any patent, copyright, trademark, trade secret, or any other intellectual property rights of any person, entity, or organization. Concessionaire agrees to execute any documents reasonably requested by the State in connection with securing the State’s registration of patent and/or copyrights or any other statutory protection in such work product including an assignment of copyright in all deliverables. Operator further agrees to incorporate these provisions into all of its contracts with architects, engineers, and other consultants or contractors.

Concessionaire, at its sole expense, shall hold harmless, protect, defend, and indemnify the State against any infringement action and/or dispute brought by a third party in connection with any deliverable hereunder. Concessionaire shall pay all costs, expenses, losses, damages, judgments, and claims including reasonable attorney’s fees, expert witness fees, and other costs.

F. 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”),…