Sample_Contract_P23CA006_San_Elijo_Camp_Store.pdf

CONCESSION CONTRACT

FOR

Camp Store and Restuarant

AT

San Elijo State Beach

STATE OF CALIFORNIA – NATURAL RESOURCES AGENCY

DEPARTMENT OF PARKS AND RECREATION

PARTNERSHIPS DIVISION

715 P STREET, 13TH FLOOR

SACRAMENTO, CA 95814

P23CA006

ConcessionaireName Concession Contract P23CA006 San Elijo State Beach i

Camp Store and Restuarant

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. INTERPRETATION AND EDUCATION INITIATIVE

9. LIABILITY WAIVER

10. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES

11. EMPLOYEE ORIENTATION AND TRAINING

12. ALCOHOLIC BEVERAGES

13. HEALTHY FOODS INITIATIVE

14. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL

15. RESOURCE CONSERVATION

16. HAZARDOUS SUBSTANCES

17. PEST CONTROL ACTIVITIES

18. UTILITIES AND SERVICES

19. EQUIPMENT

20. PERSONAL PROPERTY

21. SIGNS AND ADVERTISING

22. PHOTOGRAPHY

23. INTELLECTUAL PROPERTY RIGHTS

24. GRANT OF STATE’S TRADEMARK LICENSE

25. PARTICIPATION IN STATE PARK MARKETING PROGRAMS

26. CONSTRUCTION AND COMPLETION OF IMPROVEMENTS

27. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS

28. BONDS

29. INSURANCE

ii

30. HOLD HARMLESS AGREEMENT

31. COMPLIANCE WITH LAWS, RULES, REGULATIONS AND POLICIES

32. DISABILITIES ACCESS LAWS

33. NONDISCRIMINATION

34. DRUG-FREE WORKPLACE

35. CONFLICT OF INTEREST

36. EXPATRIATE CORPORATIONS

37. NATIONAL LABOR RELATIONS BOARD CERTIFICATION

38. CHILD SUPPORT COMPLIANCE ACT

39. RECORDS AND REPORTS

40. TAXES

41. PERFORMANCE EVALUATIONS AND INSPECTIONS

42. DEFAULT BY CONCESSIONAIRE

43. STATE’S REMEDIES

44. DEFAULT BY STATE

45. STATE BUY-OUT PROVISIONS

46. SURRENDER OF THE PREMISES; HOLDING OVER

47. NO RECORDATION; QUITCLAIM

48. ATTORNEY’S FEES

49. WAIVER OF CLAIMS

50. WAIVER OF CONTRACT TERMS

51. INTERPRETATION OF CONTRACT

52. DURATION OF PUBLIC FACILITIES

53. EMINENT DOMAIN

54. TEMPORARY TENANCY

55. SECTION TITLES

56. INDEPENDENT CONCESSIONAIRE

57. ASSIGNMENTS AND SUBCONCESSIONS

58. MODIFICATION OF CONTRACT

59. UNENFORCEABLE PROVISION

60. APPROVAL OF CONTRACT

iii

61. CONTRACT NOTICE

62. STATE’S DISTRICT SUPERINTENDENT

63. FORCE MAJEURE

EXHIBIT A – THE PREMISES

EXHIBIT B – DPR 54, CONCESSIONAIRE’S MONTHLY REPORT OF OPERATION 69

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 – WAIVER OF LIABILITY AND RELEASE SAMPLE

EXHIBIT I – CONCESSIONAIRE’S OPERATION PLAN

EXHIBIT J – CONCESSIONAIRE’S FACILITY IMPROVEMENT PLAN

EXHIBIT K – CONCESSIONAIRE’S INTERPRETIVE PLAN

EXHIBIT L – CONCESSIONAIRE’S VOLUNTEER WAIVER FORM

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION

For

Camp Store and Restuarant

Located In

San Elijo State Beach

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 §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, in accordance with California Public Resources Code §

5080.20(a), the State Parks and Commission has reviewed the proposed services, facilities and location of the concession and determined they are compatible with the classification of the unit in which the concession will be operated and;

WHEREAS, the Legislature and the Joint Legislative Budget Committee has been notified in advance of the proposed concession in accordance to California

Public Resources Code § 5080.20(b) and;

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;

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 San Elijo State Beach at the location(s) as set forth in Exhibit A, attached to and made a part of this Contract (the

"Premises"). The Premises consists of a 1,242 square foot facility including a small storeroom, kitchen, storefront, restroom, and laundry room, with a fenced outdoor storage area approximately 675 square feet and approximately 1,786 square feet of outdoor open patio space and deck wrapping around the west side of the building.

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 period of ten years (10), 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 Premises; Holding Over, with continuous Consumer Price Index adjustment, as defined below, 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 guaranteed sum of one hundred thirty-five thousand dollars

($135,000) annually or thirteen percent (13%) of Gross Receipts, whichever sum is greater. The Minimum Annual Rent guarantee will be prorated (1.08% per month) for the first Contract Year to begin when the concession is open to the public, as outlined in

Exhibit I attached to and made a part of this Contract. By contract year 2, all MAR requirements are in full effect. All Gross Receipts, as described in Contract Section 5, Gross Receipts and Contract Section 7, Use of Premises, shall be included in the

Concessionaire’s Monthly Report of Operation (DPR54) and are subject to rent.

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

($135,000) 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.

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.

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.

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 J, without cost to State and in compliance with Contract Section 26, Guidelines for Construction and Completion of Improvements, with a minimum expenditure of six hundred thousand dollars ($600,000) to update the premises. Any penalties, lien charges, and/or costs to resolve construction related disputes shall not be included in the minimum expenditure amount. After completion of all concession facility improvements and acceptance by State, if there remains an unspent balance of the six hundred thousand dollars ($600,000), 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. In consideration of facilities constructed that will become

State’s property following expiration of this Contract, Concessionaire may deduct verified facility improvement expenditures from the annual rent described in Contract Section 4 Rent in an amount not to exceed a total of

$135,000 with a limit of $45,000 per year. The facility improvements shall be consistent with park values, blend in appropriately with the park, enhance the coastal environment, and benefit visitor services at the park.

At a minimum, Concessionaire’s responsibilities shall include:

1) Must obtain any and all license, permits, etc., such as but not limited to: Coastal Commission, City of Encinitas, State Fire

Marshal, ADA, and San Diego County Health.

2) Any and all improvements to the architectural elements of the interior and exterior of the building, including but not limited to re-design of the interior facility layout, and or additions of windows, repair of roof, and changes to the façade to optimize location features and ocean views.

3) Any and all additions and upgrades to facilities and grounds including but limited to, storage cooler, laundry appliances, employee restroom facility, heating and air appliances, lighting fixtures, shelving, public seating, commercial kitchen appliances, dining equipment, and counter tops.

4) Installing new decking and railing to the existing exterior bluff seating area and surrounding patio. Railing shall be no more than the standard height of four feet tall and may not obstruct coastal view access to non-patrons. Materials for railing and detailed schematics or drawings of plans shall be provided in advance.

5) Replacing the fence to the north of the camp store building and storage shed to ensure integrity and security of storage space.

Operational equipment and storage facilities in this area shall not extend beyond the existing fence footprint at any time. Storage shall be limited to goods and consumables backstock and shall be visually unobtrusive.

6) OPTIONAL: The Concessionaire may install or construct “temporary and moveable” storage facilities for goods, equipment or merchandise. Detailed schematics or drawings of all storage anticipated infrastructure and desired location must be provided in advance.

Any and all shade and/or weather-protective materials may not obstruct coastal views or limit access at any time. Detailed schematics or drawings shall be provided in advance. Any and all landscaping installed shall be appropriate for coastal environment, drought tolerant, and visually appealing. A list of pre-approved plants can be provided upon request.

After completion of all concession facility improvements and acceptance by State, if there remains an unspent balance of the six hundred thousand dollars ($600,000), 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. Any and all upgrades to or development of the premises must have the prior approval of the

State and all necessary permits from appropriate permitting or regulatory agencies must have been obtained prior.

B. Facility Maintenance and Improvement Account: Within thirty (30) days of the effective date of this contract, 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. Within fifteen (15) days of the end of each month following the first month of the effective date of this contract, Concessionaire shall deposit in the account an amount equal to two percent (2%) of the monthly Gross Receipts from the previous month. The account shall be interest bearing with all interest accruing to the account. The account will generate monthly account statements directly to the State and will be structured so that any withdrawal from said account will require the co-signature of State’s authorized representative.

Monies held within the FMIA shall be used for upgrades or projects, which provide for the sustainability, improvement and benefit of the park unit and the general public in accordance with Section 27, Modifications, Additions, Title to Improvements, of this Contract. 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.

If there remains an unspent balance of the facility improvement obligation of six hundred thousand dollars ($600,000) or any balance remaining in the FMIA at the end of the contract term, Concessionaire shall pay this unspent balance to the State as an additional rental payment.

7. USE OF PREMISES

The Premises shall be used by the Concessionaire for the operation of a camp store and restaurant providing competitively priced camping and beach supplies, souvenirs, beach equipment rentals, laundry service, and food and beverage service as approved by the District Superintendent or designee. Food and beverage service shall also include the sale of alcohol for on- and off- premises consumption.

The Use of Premises will be consistent with the State approved Operation Plan, Facility Improvement Plan, and Interpretive 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, Improvement Plan, and Interpretive Plan are incorporated herein and made part of this Contract as Exhibits I, J, and K, respectively.

A. The concessionaire’s required area of responsibility as defined by red, blue, and green areas noted on the map in Exhibit A includes:

1) Camp store and storage area

2) Laundry

3) Restaurant building

4) Outside patio and deck area

5) Non-exclusive open space by the public outdoor shower

6) All walkways, pathways, planters located near the entrance of the camp store restaurant and building; and planters located along the park road east of the open space

B. At a minimum, the concessionaire shall provide the following:

1) Operation and maintenance of camp store and storage area; Camp store for the sale of retail items including but not limited to: ice, propane, basic toiletries, laundry supplies, sun protection, basic cooking supplies, essential tent and RV camping supplies, local and beach-themed souvenirs and firewood; and the rental of beach equipment. Refer to details of specific alcohol requirements in Alcohol Beverages, Section 12. Suggested suppliers from locally owned small businesses are encouraged.

a. Beach equipment rentals shall be limited to manageable and returnable equipment appropriate for the geographic area including but not limited to shade canopies, beach chairs, lifejackets, boogie boards, volleyball, or beach game sets, etc. Any rentals that require safety equipment shall have that item included in the rental price. (e.g., CVC 21212). Items rented will be documented with a legal rental agreement and liability waiver attached herein as Exhibit H Waiver of Liability

Release. State reserves the right to terminate the rental of certain items should a public safety hazard be identified (CCR T-14 4319).

2) Operation and maintenance of laundry facilities.

a. Laundry facilities shall be advertised and accessible on-site for camper use during established business hours.

b. One (1) coin-operated washing machine and one

(1) coin-operated dryer shall be in good working condition at a minimum. Non-functioning equipment shall be repaired or replaced within one (1) week.

3) Operation and maintenance of an on-site restaurant with kitchen-prepared meal service.

a. Seating shall be provided for a comfortable dining experience in any coastal weather conditions.

b. A detailed description of the food type(s) and service, tableware/utensils, take-out containers, menu, and menu boards shall be provided.

c. The menu should feature locally sourced, seasonal items.

d. The sale of any takeaway kitchen-prepared foods shall be provided in, on, or with compostable or environmentally conscious materials.

e. Kitchen-prepared meal service shall be provided when open alcohol is available for purchase.

f. The sale of open alcohol shall be in plastic or aluminum containers. Refer to details of specific alcohol requirements in Alcohol Beverages, Section 12.

4) Operation and maintenance of the patio and deck seating areas.

a. Appropriate seating and shelter for outdoor dining areas that offer protection from the elements while not limiting or obstructing the ocean view to non-patrons.

5) Operation and maintenance of the non-exclusive open space by the public outdoor shower as a public and family-friendly space with expanded table seating. Tables may be provided by the

State upon request.

6) Operation and maintenance of all walkways, pathways, planters located near entrance of the building; and planters located along the park road east of open space.

a. Planters located near the entrance to the building and located along the park road east of the open space shall be replanted and maintained.

C. A Landscape Plan shall be included in the Facility Plan Exhibit J, highlighting the intent of the concessionaire to provide green barriers to visually protect campers, design planter boxes for improved camper experience, and enhance the overall visual appeal of the concession and park. The following OPTIONAL services may be provided by the

Concessionaire:

1) Delivery service to campsites by a street-legal golf cart or appropriately marked business vehicle may be used to conduct deliveries of pre-ordered camp store items as approved by the

District Superintendent or designee. Delivery service may be terminated by State at any time due to unsafe or negligent driving, or if State determines the service is not in the best interest of the park and its visitors.

2) Tables or bar tops may be added adjacent to the concession building to provide adequate seating for dining and view enjoyment.

3) The adjacent patio and deck space directly south of the building may be enclosed from the southeast corner approximately twenty-six (26) feet to the existing patio railing to offer an exclusive dining experience.

a. Fencing or railing shall be no higher than four (4) feet and shall be constructed out of see-through material to facilitate an on-premises alcohol beverage consumption area for patrons over twenty-one (21) years of age. No chain link fencing shall be constructed.

b. Two (2) exit locations shall be provided.

4) Neither the facility, nor premises shall be used for or have overnight accommodation, bedding, or other equipment for an overnight stay without expressed and written approval of the

State.

5) The Premises does not include parking for day-use patrons.

Vehicle access is limited to registered campers and State Parks staff only.

6) There shall be no exclusive or designated parking provided to concessionaire within San Elijo State Beach or any other State

Park property. On-site parking exists for State Parks staff and camper registration only.

7) Public Domain Day Use: Possessory interest is granted as a nonexclusive concession at the location. We recognize this does not exclude the general public from the premises, but the use of the general public is limited by the terms and conditions.

Concession camp store and laundry services shall be provided six (6) days a week at a minimum between the hours of 8:00 AM and 8:00 PM, starting on April 1 and ending on November 30th, or when the unit closes, whichever is earlier, during each year of the Contract. At a minimum, the restaurant shall be open for kitchen prepared food service during peak campground occupancy. The State shall provide occupancy reports as guidance.

Concession services shall be provided six (6) days a week at a minimum between the hours of 8:00 AM and 6:00 PM, starting on December 1st and last date of

March 31st, or when the unit closes, whichever is earlier, during each year of the

Contract. At a minimum, the restaurant shall be open for kitchen-prepared food service during non-peak campground occupancy. The State shall provide occupancy reports as guidance.

Concessionaire shall provide business operational hours that are cohesive and convenient based on campground occupancy. 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. The campground closes annually for approximately one (1) month for maintenance. Closure takes place during ‘winter’ months and reasonable advance notification will be provided by State.

During this time, the concession may negotiate hours of operation for their benefit, to include reduced operational hours, altered operational hours, or full closure. Hours shall be seasonally consistent, not weather dependent. 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. Due to the campground amplified noise ordinance (CCR T-14

4320), concession (camps store and restaurant) may not have amplified noise between

6:00 A.M. – 10:00 P.M. at any time without prior approval from District Superintendent.

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.

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.

8. INTERPRETATION AND EDUCATION INITIATIVE

The States mission is centered around inspiring and promoting excellence in the interpretation and education of our natural and cultural environment within California

State Parks. The State encourages Concessionaire to plan for participating in or partnering with state parks on existing or additional educational and interpretive programs. These programs shall improve the visitor experience and fulfill the department's mission statement. Examples include educational panel(s) highlighting natural, ecological, geological, or historical features of the area, self-guided activities, or active visitor engagement that aligns with the district interpretive leads' guidance.

Interpretive programming should address multi-ethnic, multi-generational visitors.

Concessionaire shall plan and describe their Interpretation and education plan in

Concessionaire’s Interpretation Plan, attached hereto as Exhibit K. Concessionaire’s interpretive or educational plans must be approved in advance by District.

9. LIABILITY WAIVER

Concessionaire shall require that a liability waiver, equivalent to the waiver attached hereto as Exhibit H, Waiver of Liability and Release and incorporated herein by this reference, be executed between Concessionaire and each rental patron prior to the start of each aquatic or human powered rental activity. Such waiver is subject to the

State’s approval and shall release State, its officers, employees, and agents from any liability resulting from any claim associated with services, equipment, and activities provided and facilitated on each aquatic or human powered rental activity. 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 aquatic or human powered rental activity 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.

10. 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.

11. EMPLOYEE ORIENTATION AND TRAINING

All concession employees, staff and 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 San Elijo State Park 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.

12. ALCOHOLIC BEVERAGES

Concessionaire may sell beer and wine, and/or pre-mix cocktails in the campground store and restaurant for “on the Premises” and “off the Premises” consumption in accordance with the rules set herein. Concessionaire may sell beer and wine, and/or pre-mix cocktails in manufacturer-sealed containers (e.g. sealed cans or bottles) for off the Premises consumption as long as the order is picked up from the

Premises by the consumer and proper identification is displayed. If alcoholic beverages are prohibited from consumption in the park unit (other than the Premises), this section is not intended to waive that rule or regulation. No other alcoholic beverages shall be sold. Concessionaire shall ensure that a competent adult person twenty-one (21) years of age or over shall be on the premises at all times to supervise the sale of alcoholic beverages. Further, the sale of alcoholic beverages shall be subject to any regulations established for the State Park System by the Director of the Department of Parks and

Recreation and the regulations established by the Department of Alcoholic Beverage

Control. Upon termination of this Contract, the Concessionaire shall transfer any alcohol licenses associated with this concession to the future concessionaire pursuant to the processes established by the Department of Alcohol Beverage Control; any sale of said licenses from the Concessionaire to the future concessionaire shall not exceed the Concessionaire’s costs to obtain the licenses.

13. 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.

FOR RESTAURANTS/FARM CONCESSIONS:

3) To the extent possible, Concessionaire shall develop interpretive materials and programs that demonstrate the vital role of food in human culture, and how food affects quality of life.

4) To the extent possible, Concessionaire shall offer interpretive demonstrations regarding the sound and sustainable production of food and healthful and traditional means of cooking.

5) To the extent possible, Concessionaire shall develop a demonstration kitchen that provides maximum access to park visitors to view healthy food preparation techniques and that can be used to host educational food and cooking programs. Such a kitchen should include, where possible, food preparation areas that are visible to the public, and ceiling or otherwise elevated/mounted mirrors to maximize public viewing of food preparation techniques.

14. 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 twenty (20) feet east and sixty (60) feet south of concession premises as defined in Exhibit A, 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, weed abatement, 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.

15. 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) The Concessionaire is responsible for complying with all county waste, recycling, and composting guidelines.

3) Grease: Concessionaire is responsible for complying with all county waste, recycling, and composting guidelines.

4) 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.

5) 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)).

16. 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.

17. 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,…