AB 2249: State parks.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-09-21
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would enact the California Heritage Protection Act, which would make various changes to the process for negotiating or renegotiating state parks concession contracts. The bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill would prohibit a concession contract from providing a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that, on and after January 1, 2017, provides a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
This bill would incorporate additional changes to Section 5080.18 of the Public Resources Code proposed by SB 1473 to be operative only if SB 1473 and this bill are chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would enact the California Heritage Protection Act, which would make various changes to the process for negotiating or renegotiating state parks concession contracts. The bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill would prohibit a concession contract from providing a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that, on and after January 1, 2017, provides a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
This bill would incorporate additional changes to Section 5080.18 of the Public Resources Code proposed by SB 1473 to be operative only if SB 1473 and this bill are chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would enact the California Heritage Protection Act, which would make various changes to the process for negotiating or renegotiating state parks concession contracts. The bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill would prohibit a concession contract from providing a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that, on and after January 1, 2017, provides a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
This bill would incorporate additional changes to Section 5080.18 of the Public Resources Code proposed by SB 1473 to be operative only if SB 1473 and this bill are chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would enact the California Heritage Protection Act, which would make various changes to the process for negotiating or renegotiating state parks concession contracts. The bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill, commencing January 1, 2017, bill would prohibit a concession contract from providing a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that, on and after January 1, 2017, provides a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist, exist and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would enact the California Heritage Protection Act, which would make various changes to the process for negotiating or renegotiating state parks concession contracts. The bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill, commencing January 1, 2017, would prohibit a concession contract from providing a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that, on and after January 1, 2017, provides a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist, and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would modify the definition of a best responsible bidder to include that the bidder, among other things, will operate the concession in a manner that protects the states trademark and service mark interest in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill bill, commencing January 1, 2017, would prohibit a concession contract from being construed to provide providing a contracting party with, or serve as a basis for a legal claim or assertion that the contracting party has, with a trademark right or other financial or ownership or service mark interest in the name or names associated with a state park venue. venue, or its historical, cultural, or recreational resources, and would prohibit a concession contract from serving as the basis for any legal claim that the contracting party has that interest. The bill would declare that these provisions do not constitute a change in, but are declaratory of, existing law. The bill would prohibit a bidder who makes that legal claim or assertion assertion, and a bidder who a court has determined has made that legal claim or assertion with respect to a state or federal park venue without reasonable cause and in bad faith, from being awarded a concession contract within state parks, and would parks. The bill would require the department to adopt regulations to provide a bidder who is denied a contract award based on these reasons with written notice and an opportunity to rebut the basis of the contract denial at a formal hearing. The bill would render a provision of a concession contract that provides, or serves as a basis for a legal claim or assertion that the that, on and after January 1, 2017, provides a contracting party has, with a trademark right or other financial or ownership or service mark interest in the name or names associated with a state park venue venue, or its historical, cultural, or recreational resources, void and unenforceable.
This bill would require a concession contract to contain provisions requiring the concessionaire to forfeit the right to bid on future state park concession contracts if the concessionaire makes the above-described legal claim or assertion and requiring a concessionaire to be responsible for the states attorney fees, costs, and expenses if the concessionaire files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation of the trademark or service mark application.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist, and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would prohibit a concession contract from providing being construed to provide a contracting party with, or serving serve as a basis for a legal claim or assertion that the contracting party has, a trademark right or other financial or ownership interest in the name or names associated with a state park venue. The bill would prohibit a bidder who makes that legal claim or assertion from being awarded a concession contract within state parks, and would render a provision of a concession contract that provides, or serves as a basis for a legal claim or assertion that the contracting party has, a trademark right or other financial or ownership interest in the name or names associated with a state park venue void and unenforceable.
Existing law establishes the Department of Parks and Recreation and vests the department with the control of the state park system. Existing law authorizes the Director of Parks and Recreation to negotiate or renegotiate a concession contract within state parks if specified conditions exist, and generally requires that a concession contract within state parks for a period of more than 2 years be awarded to the best responsible bidder.
This bill would prohibit a concession contract from providing a contracting party with, or serving as a basis for a legal claim or assertion that the contracting party has, a trademark right or other financial or ownership interest in the name or names associated with a state park venue. The bill would prohibit a bidder who makes that legal claim or assertion from being awarded a concession contract within state parks, and would render a provision of a concession contract that provides, or serves as a basis for a legal claim or assertion that the contracting party has, a trademark right or other financial or ownership interest in the name or names associated with a state park venue void and unenforceable.
This act shall be known, and may be cited, as the California Heritage Protection Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley, dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue or its historical, cultural, or recreational resources. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 3.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder.
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complementary to, the characteristics, features, and theme of the unit in which the concession will be operated, (3) in the best interests of the state and public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 4.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 4.5.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach may be may be awarded for up to 50 years in length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 5.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)(1)A concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(2)This subdivision does not constitute a change in, but is declaratory of, existing law.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following applies:
(1)The bidder has made a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(d)Commencing January 1, 2017, a provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded.
SEC. 6.Section 4.5 of this bill incorporates amendments to Section 5080.18 of the Public Resources Code proposed by both this bill and Senate Bill 1473. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 5080.18 of the Public Resources Code, and (3) this bill is enacted after Senate Bill 1473, in which case Section 4 of this bill shall not become operative.
This act shall be known, and may be cited, as the California Heritage Protection Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley, dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue or its historical, cultural, or recreational resources. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 3.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder.
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complementary to, the characteristics, features, and theme of the unit in which the concession will be operated, (3) in the best interests of the state and public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 4.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 4.5.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach may be may be awarded for up to 50 years in length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 5.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)(1)A concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(2)This subdivision does not constitute a change in, but is declaratory of, existing law.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following applies:
(1)The bidder has made a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(d)Commencing January 1, 2017, a provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded.
SEC. 6.Section 4.5 of this bill incorporates amendments to Section 5080.18 of the Public Resources Code proposed by both this bill and Senate Bill 1473. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 5080.18 of the Public Resources Code, and (3) this bill is enacted after Senate Bill 1473, in which case Section 4 of this bill shall not become operative.
This act shall be known, and may be cited, as the California Heritage Protection Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley, dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue or its historical, cultural, or recreational resources. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 3.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder.
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary complementary to, the characteristics, features, and theme of the unit in which the concession will be operated, (3) in the best interests of the state and public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 4.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 4.5.Section 5080.18 of the Public Resources Code is amended to read:5080.18.All A concession contracts contract entered into pursuant to this article shall contain, but are is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 may be awarded for up to 50 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 5.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)(1)A concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(2)This subdivision does not constitute a change in, but is declaratory of, existing law.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following apply: applies:
(1)The bidder has made a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(d)Commencing January 1, 2017, a provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded.
SEC. 6.Section 4.5 of this bill incorporates amendments to Section 5080.18 of the Public Resources Code proposed by both this bill and Senate Bill 1473. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2017, (2) each bill amends Section 5080.18 of the Public Resources Code, and (3) this bill is enacted after Senate Bill 1473, in which case Section 4 of this bill shall not become operative.
This act shall be known, and may be cited, as the California Heritage Protection Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley, dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue or its historical, cultural, or recreational resources. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 3.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder.
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, (3) in the best interests of the state and public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 4.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire in bad faith files a federal or state trademark or service mark application for a trademark or service mark that incorporates or implies an association with a state park venue, or its historical, cultural, or recreational resources, and the state files a successful opposition or cancellation with respect to that trademark or service mark application, the concessionaire shall be responsible for the states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 5.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)Commencing January 1, 2017, a (1)A concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(2)This subdivision does not constitute a change in, but is declaratory of, existing law.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following apply:
(1)The bidder has made a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(d)A Commencing January 1, 2017, a provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded. Subdivision (a) does not constitute a change in, but is declaratory of, existing law.
This act shall be known, and may be cited, as the California Heritage Protection Act.
SEC. 2.The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley Valley, dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue. venue or its historical, cultural, or recreational resources. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 2.SEC. 3.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder.
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, (3) in the best interests of the state and public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 3.SEC. 4.Section 5080.18 of the Public Resources Code is amended to read:5080.18.A concession contract entered into pursuant to this article shall contain, but is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire 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 states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 4.SEC. 5.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)Commencing January 1, 2017, a concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following apply:
(1)The bidder has made a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(d)A provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded. Subdivision (a) does not constitute a change in, but is declaratory of, existing law.
The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 2.Section 5080.05 of the Public Resources Code is amended to read:5080.05.(a)Except as provided in Section 5080.16, all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder. Best
(b)Best responsible bidder means the bidder, as determined by specific standards established by the department, which, that, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, and (3) in the best interests of the state and public. public, and (4) in a manner that protects the states trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources. For purposes of this section, a bidder who would be subject to subdivision (b) of Section 5080.22 is not a best responsible bidder.
SEC. 3.Section 5080.18 of the Public Resources Code is amended to read:5080.18.All A concession contracts contract entered into pursuant to this article shall contain, but are is not limited to, all of the following provisions:
(a)(1)The maximum term shall be 10 years, except that a term of more than 10 years may be provided if the director determines that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire, to facilitate the full utilization of a structure that is scheduled by the department for replacement or redevelopment, or to serve the best interests of the state. The term shall not exceed 20 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(2)The maximum term shall be 50 years if the concession contract is for the construction, development, and operation of multiple-unit lodging facilities equipped with full amenities, including plumbing and electrical, that is anticipated to exceed an initial cost of one million five hundred thousand dollars ($1,500,000) in capital improvements in order to begin operation. The term for a concession contract described in this paragraph shall not exceed 50 years without specific authorization by statute. Except as provided in Section 5080.16, all renewals of concession contracts pursuant to this paragraph shall be subject to competitive bidding requirements.
(3)Notwithstanding paragraph (1), a concession agreement at Will Rogers State Beach executed prior to December 31, 1997, including, but not limited to, an agreement signed pursuant to Section 25907 of the Government Code, may be extended to exceed 20 years in total length without specific authorization by statute, upon approval by the director and pursuant to a determination by the director that the longer term is necessary to allow the concessionaire to amortize improvements made by the concessionaire that are anticipated to exceed one million five hundred thousand dollars ($1,500,000) in capital improvements. Any extensions granted pursuant to this paragraph shall not be for more than 15 years.
(b)Every concessionaire shall submit to the department all sales and use tax returns and, at the request of the department, provide an annual financial statement prepared or audited by a certified public accountant.
(c)Every concession shall be subject to audit by the department.
(d)A performance bond shall be obtained and maintained by the concessionaire. In lieu of a bond, the concessionaire may substitute a deposit of funds acceptable to the department. Interest on the deposit shall accrue to the concessionaire.
(e)The concessionaire shall obtain and maintain in force at all times a policy of liability insurance in an amount adequate for the nature and extent of public usage of the concession and naming the state as an additional insured.
(f)Any discrimination by the concessionaire or his or her agents or employees against any person because of the marital status or ancestry of that person or any characteristic listed or defined in Section 11135 of the Government Code is prohibited.
(g)To be effective, any modification of the concession contract shall be evidenced in writing.
(h)Whenever a concession contract is terminated for substantial breach, there shall be no obligation on the part of the state to purchase any improvements made by the concessionaire.
(i)If a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of subdivision (a) of Section 5080.22, the concessionaire shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
(j)If a current or former concessionaire 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 states attorney fees, costs, and expenses associated with that opposition or cancellation.
SEC. 2.SEC. 4.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)A Commencing January 1, 2017, a concession contract awarded pursuant to Section 5080.05, 5080.16, or 5080.23 shall not be construed to provide the contracting party with, or serve as a basis for any legal claim or assertion that the contracting party has, with a trademark or other financial or ownership service mark interest in the name or names associated with a state park venue. venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest.
(b)To the extent consistent with federal law, a bidder shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23 if either of the following apply:
(b)A
(1)The bidder who makes has made a legal claim or assertion to have a trademark or other financial or ownership service mark interest described in violation of subdivision (a) shall not be awarded a contract pursuant to Section 5080.05, 5080.16, or 5080.23. (a).
(2)A court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
(c)The department shall adopt regulations to provide a bidder who is denied a contract award based on subdivision (b) with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
(c)
(d)A provision of a contract or other agreement entered into pursuant to Section 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
(e)This section shall not be construed to impact a contracting partys valid trademark or service mark rights that were held before the concession contract was awarded. Subdivision (a) does not constitute a change in, but is declaratory of, existing law.
The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 2.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)A concession contract awarded pursuant to Section 5080.05 or 5080.16 5080.05, 5080.16, or 5080.23 shall not be construed to provide the contracting party with, or serve as a basis for any legal claim or assertion that the contracting party has, a trademark or other financial or ownership interest in the name or names associated with a state park venue.
(b)A bidder who makes a legal claim or assertion to have a trademark or other financial or ownership interest described in subdivision (a) shall not be awarded a contract pursuant to Section 5080.05 or 5080.16. 5080.05, 5080.16, or 5080.23.
(c)A provision of a contract or other agreement entered into pursuant to Section 5080.05 or 5080.16 5080.05, 5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable.
The Legislature finds and declares all of the following:
(a)National, state, and regional parks serve the public interest, benefit California, and very often reflect historic significance that earlier generations of Californians have attached to these sites.
(b)Yosemite National Park, located in California, is one of the most important and majestic parks in the United States and is filled with historic landmarks built several decades ago. The historic nature of these landmarks as California heirloom destinations is demonstrated by topographic maps of the Yosemite Valley dating back to the 1950s, which include these venues.
(c)The Ahwahnee Hotel was built in the 1920s with a backdrop of Half Dome. It was placed on the National Register of Historic Places in 1977.
(d)Curry Village, in the Yosemite Valley, is named after a San Francisco Bay area couple who established a summer camp there in 1899. It was placed on the National Register of Historic Places in 1979.
(e)The Wawona Hotel is a complex of seven buildings in the southwest corner of Yosemite National Park. The first building, then named Long White, was originally constructed in 1876. The main hotel building originally opened in 1879. It was placed on the National Register of Historic Places in 1975.
(f)California state park venues are held in public trust for the people of California. A legal claim by an individual to have a trademark right to a name or names associated with a venue within a state park derogates the interests of California and the shared history of Californians, and it is indicative of a lack of the individuals fitness to serve as a steward of the states cherished cultural heritage and places.
(g)An agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agencys legal authority to enter.
(h)It is important that the Legislature clarify that an awarded concession contract within Californias state parks does not give the concessionaire a trademark right to the name or names associated with a state park venue. Furthermore, a concessionaire who makes a legal claim to have that trademark right should be disqualified from further consideration as a bidder.
SEC. 2.Section 5080.22 is added to the Public Resources Code, to read:5080.22.(a)A concession contract awarded pursuant to Section 5080.05 or 5080.16 shall not provide the contracting party with, or serve as a basis for any legal claim or assertion that the contracting party has, a trademark or other financial or ownership interest in the name or names associated with a state park venue.
(b)A bidder who makes a legal claim or assertion to have a trademark or other financial or ownership interest described in subdivision (a) shall not be awarded a contract pursuant to Section 5080.05 or 5080.16.
(c)A provision of a contract or other agreement entered into pursuant to Section 5080.05 or 5080.16 that violates subdivision (a) shall be void and unenforceable.
|
Date
|
Status
|
|---|---|
| Jun 6, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Sep 7, 2016 | Enrolled and presented to the Governor at 12 p.m. |
| Aug 29, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 80. Noes 0. Page 6354.). |
| Aug 29, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Aug 24, 2016 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 26 pursuant to Assembly Rule 77. |
| Aug 23, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 39. Noes 0. Page 5264.). |
| Aug 23, 2016 | Read third time. Passed. Ordered to the Assembly. |
| Aug 19, 2016 | Read second time. Ordered to third reading. |
| Aug 18, 2016 | Read third time and amended. Ordered to second reading. |
| Aug 15, 2016 | Read second time. Ordered to third reading. |
| Aug 11, 2016 | From committee: Do pass. (Ayes 7. Noes 0.) (August 11). |
| Aug 8, 2016 | Referred to APPR. suspense file. |
| Aug 2, 2016 | Read second time and amended. Re-referred to Com. on APPR. |
| Aug 1, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (June 28). |
| Jun 14, 2016 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 9. Noes 0.) (June 14). Re-referred to Com. on JUD. |
| Jun 9, 2016 | Referred to Coms. on N.R. & W. and JUD. |
| Feb 18, 2016 | Read first time. To print. |
| Jun 2, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 80. Noes 0.) |
| Jun 2, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 80. Noes 0. Page 5180.) |
| Jun 2, 2016 | Read third time. Passed. Ordered to the Senate. |
| May 31, 2016 | Read second time. Ordered to third reading. |
| May 27, 2016 | Read second time and amended. Ordered returned to second reading. |
| May 27, 2016 | From committee: Amend, and do pass as amended. (Ayes 20. Noes 0.) (May 27). |
| May 4, 2016 | In committee: Set, first hearing. Referred to APPR. suspense file. |
| Apr 19, 2016 | Re-referred to Com. on APPR. |
| Apr 18, 2016 | Read second time and amended. |
| Apr 14, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on APPR. with recommendation: To Consent Calendar. (Ayes 10. Noes 0.) (April 12). |
| Mar 31, 2016 | Re-referred to Com. on JUD. |
| Mar 30, 2016 | Read second time and amended. |
| Mar 29, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on JUD. (Ayes 15. Noes 0.) (March 29). |
| Mar 3, 2016 | Referred to Coms. on W., P., & W. and JUD. |
| Feb 19, 2016 | From printer. May be heard in committee March 20. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 29, 2016 | AB 2249 COOLEY Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 23, 2016 | Assembly 3rd Reading AB2249 Cooley By Pavley | Senate Floor |
Passed |
|
| Aug 11, 2016 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Aug 8, 2016 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Jun 28, 2016 | Do pass as amended, but first amend, and re-refer to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Jun 14, 2016 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Natural Resources and Water |
Passed |
|
| Jun 2, 2016 | AB 2249 COOLEY Assembly Third Reading | Assembly Floor |
Passed |
|
| May 27, 2016 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Apr 12, 2016 | Do pass as amended, and be re-referred to the Committee on [Appropriations] with recommendation: To Consent Calendar | Assembly Standing Committee on Judiciary |
Passed |
|
| Mar 29, 2016 | Do pass as amended and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Water, Parks, and Wildlife |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Association Of Professional Scientists | ** Support | Aug 23, 2016 |
| California Association of Recreation and Park Districts | ** Support | Aug 23, 2016 |
| California Insurance Commissioner Dave Jones | ** Support | Aug 23, 2016 |
| California Park and Recreation Society | ** Support | Aug 23, 2016 |
| California State Parks Foundation | ** Support | Aug 23, 2016 |
| California State Treasurer John Chiang | ** Support | Aug 23, 2016 |
| East Bay Regional Park District | ** Support | Aug 23, 2016 |
| Sierra Club California | ** Support | Aug 23, 2016 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2249
Author:(Cooley, et al.)
As Amended Ver:August 18, 2016
Majority vote
ASSEMBLY: | 80-0 | (June 2, 2016) | SENATE: | 39-0 | (August 23, 2016) |
Original Committee Reference: W., P., & W.
SUMMARY: Enacts the California Heritage Protection Act, which prohibits a concession contract from providing a contracting party with a trademark interest in the name or names associated with a state park.
The Senate amendments:
- Clarify that the provision of this bill that prohibits a state park concession contract from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park, and prohibits such a contract from forming the basis for any legal claim to such an interest, does not constitute a change in but is declaratory of existing law.
- Clarify that the provision of this bill that declares a contract that violates the above prohibition to be void and unenforceable is effective commencing January 1, 2017.
- Narrow the provision of this bill which makes a concessionaire who files an application for a trademark or service mark in association with a state park liable for the state's attorney's fees, applicable only if the filing is in bad faith.
- Add co-authors and technical language to avoid chaptering out problems with SB 1473 (Committee on Natural Resources and Water) in the event both bills pass and amend the same code section.
EXISTING LAW:
- Authorizes the Department of Parks & Recreation (DPR) to enter into contracts for the operation of concessions within units of the state park system. Requires, with specified exceptions, that concession contracts be awarded to the best responsible bidder. Defines best responsible bidder as the bidder who, as determined by the DPR, will operate the concession consistent with the contract, in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park unit, and in the best interests of the state and public.
- Alternatively, authorizes the DPR, if the director of the DPR determines it is in the best interests of the state, and after giving notice to the State Park & Recreation Commission, to award concession contracts to the best responsible person or entity submitting a proposal for a concession contract in response to a request for proposal. Defines best responsible person or entity as the person or entity that, as determined by specific standards established by the DPR, will operate the concession in the best interests of the state and the public.
- Requires any proposed concession contract that is expected to involve a total investment or annual gross sales of over $1,000,000 to be reviewed by the State Park & Recreation Commission, and submitted to the Joint Legislative Budget Committee for review at least 30 days prior to advertising for bids.
FISCAL EFFECT: According to the Senate Appropriations Committee:
- One-time costs of $50,000 to $150,000 (General Fund) to the California Department of Parks and Recreation (CDPR) to develop regulations.
- Unknown, potentially significant costs, to ensure compliance with anti-trademarking provisions and to provide required appeals process, if requested.
- Unknown cost for potential litigation for contested contract awards.
COMMENTS: This bill prohibits a state park concession contract from providing, or serving as the basis for, any claim of a trademark right in the name or names associated with a state park. The Senate amendments are technical and clarifying.
This bill clarifies that a concession contract in a state park does not entitle a company to any legal claim of a trademark, prohibits concessionaires from claiming ownership of a name associated with a California state park, and disqualifies a concessionaire from consideration for future contracts if they assert a trademark claim in violation of this bill's provisions, or are found by a court to have asserted such a claim without reasonable cause and in bad faith. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities, for which they have been entrusted as a steward, but which still remain the property of the state.
This bill was sparked by a recent contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015 the National Park Service rebid the contract and awarded a new 15 year concession contract to Aramark who was the successful bidder. After Delaware North lost the contract they sued the federal government for breach of an implied contract and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite.
In order to prevent a similar situation from occurring in California state parks, this bill would prohibit a state park concession contract from providing, or forming the basis for, a trademark or service mark interest in the name or names associated with a state park. This bill would also make any bidder who asserts such a legal claim ineligible to be awarded a contract.
The contract currently used by the DPR for state park concessions in California expressly prohibits a concessionaire from obtaining a trademark claim in any name or logo associated with a state park, and provides that any such trademark that might be created during the period of the contract shall continue in the DPR's exclusive ownership upon termination of the contract. While this is the current practice at the DPR, this bill would ensure that such protections continue to apply in the future.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0004706
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 2249
:
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16
AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk
SENATE JUDICIARY COMMITTEE: 7-0, 6/28/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 80-0, 6/2/16 - See last page for vote
DIGEST: This bill establishes the California Heritage Protection Act, which prohibits a concession contract from providing a contracting party with a trademark or service mark of the names associated with a unit of the state park system. This bill further requires that a concessionaire forfeit the right to bid on future state parks concession contracts if the concessionaire makes a legal claim or assertion to a trademark or service mark of the historical, cultural, or recreational resources in a state park unit.
Senate Floor Amendments of 8/18/16 add double jointing language to avoid chaptering out issues with SB 1473 (Senate Natural Resources and Water Committee).
Existing law:
- Allows the Department of Parks and Recreation (DPR) to enter into concession contracts within units of the state park system. Existing law describes the process required to solicit and select concession contract bids.
- Concession contracts are required, with specified exceptions, to be awarded to the best responsible bidder. The best responsible bidder is a bidder who will (1) operate the concession consistent with the contract; (2) operate in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park; and (3) operate in the best interests of the state and the public (Public Resources Code § 5080.05).
- Alternatively, the director of DPR is authorized to negotiate or renegotiate a contract under specific conditions, including if the bid process failed to produce a best responsible bidder.
- Requires all concession contracts to contain several provisions, including:
- Maximum term shall be 10 years, unless under certain conditions, as described.
- A concession contract may exceed 50 years if it involves the construction, development and operation of a multiple-unit lodging facility with an initial cost of more than $1.5 million.
- Every concessionaire shall submit to DPR all sales and use tax returns and provide an annual financial statement. Every concessionaire is subject to audit by DPR.
- The state is not obligated to purchase any improvement made by the concessionaire if a contract is terminated for substantial breach.
This bill:
- Makes several legislative findings and declarations regarding the public interest and historical significance served by national, state, and regional parks, including Yosemite National Park. This bill finds and declares that California state parks are held in trust for the people of California, that a legal claim to a trademark right in a name or a names associated with a state park derogates the interests of California, and that making such a claim is indicative of the claimants lack of fitness to serve as a steward of state parks. This bill finds and declares that an agreement entered into by a California state agency that compromises the interests of Californians is “ultra vires” and, therefore, beyond that agency’s legal authority to enter.
- Modifies the definition of best responsible bidder, for purposes of existing law governing the awarding of concession contracts for state parks, to include that the bidder shall operate the concession in a manner that protects the state’s trademark and service mark rights in the names associated with a state park and state park resources.
- Provides that a concessionaire, who makes a legal claim to have a trademark or service mark interest in a state park in violation of the law, shall forfeit the right to bid on future state park concession contracts, to the extent authorized by federal law.
- Provides that a concessionaire, who files an application for a trademark or service mark associated with a state park or state park resources that is successfully opposed or cancelled by the state, shall be responsible for the state’s attorney’s fees and costs.
- Prohibits, commencing January 1, 2017, a concession contract awarded for a state park from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park or state park resources, or from serving as the basis for any legal claim that the contracting party has such an interest. States that this prohibition is declaratory of existing law.
- Prohibits a bidder from being awarded a state park concession contract if the bidder has made a legal claim or assertion to have a trademark associated with a state park in violation of this statutory prohibition, or if a court has determined that the bidder has made a claim to have a trademark or service mark interest in the name or names associated with a state or federal park venue without reasonable cause and in bad faith.
- Requires DPR to adopt regulations to provide a bidder who is denied a contract award on the basis of trademark claims with written notice and an opportunity to rebut the denial at a formal hearing.
- Provides that a provision of a concession contract or other agreement that violates these provisions shall be void and unenforceable.
- Provides that this bill's prohibition on state park concession contracts providing the basis for a trademark claim in the name or names associated with a state park shall not be construed to impact a contracting party's valid trademark or service mark rights that were held before the concession contract was awarded.
Background
This bill was sparked by a recent, well-publicized contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015, the National Park Service rebid the contract and awarded a new 15-year concession contract to Aramark who was the successful bidder.
After Delaware North lost the contract they sued the federal government for "breach of an implied contract" and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. According to Delaware North, some of the trademark registrations were acquired by Delaware North from the Curry Company, the previous concessionaire, along with other Curry Company assets, and some were newly registered by Delaware North after they became the concessionaire. Among the names they claim to have a registered trademark property right for are "The Ahwahnee," "Yosemite Lodge," "Wawona," "Curry Village," and "Badger Pass," all of which are well-known venues within Yosemite National Park. Also, the Delaware North Company claims to have a registered trademark for the name "Yosemite National Park" and the iconic Half Dome used on logos and other merchandise sold through the gift shop.
Delaware North has asserted that it is entitled to compensation for the value of its trademarks and other intellectual property rights in Yosemite National Park which it claims is valued at $51 million. The National Park Service has countered that the value is closer to $1.63 million, and alleges that many of the trademarks were registered without its knowledge or consent. The National Park Service has also filed a petition with the United States Patent and Trademark Office seeking to cancel the disputed trademarks.
Delaware North offered to let the park keep the names while the legal process plays out. But, rather than risk an injunction that might interrupt service at Yosemite, the National Park Service removed the contested names from various signs, bridges, and other places within the park, and renamed the venues, at a total cost of $1.7 million. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, is being renamed "the Majestic Yosemite Hotel." The dispute has outraged many park visitors who see the trademark claims as violating the public trust and the deeply held understanding that the national parks are national treasures that belong collectively to the people of the country.
Comments
Impact on National Park concession contracts. While this bill targets concession contracts in state parks, it includes provisions to encourage concessionaires to follow the same rules when entering into contracts with national parks. This bill makes a concessionaire ineligible for a state park concession contract if a court determined that the concessionaire made a legal claim to have a trademark interest in the name or names associated with a state or federal park venue. Thus, while the state cannot dictate the terms of contracts in federal parks, this bill is attempting to use the possibility of losing future concession contracts in state parks as motivation to avoid making trademark claims in national parks.
Related/Prior Legislation
SB 1473 (Committee on Natural Resources and Water, 2016) allows concession contracts at Will Rogers State Beach to be awarded for up to 50 years if the anticipated capital improvements will exceed $1.5 million. Amendments were also added to avoid conflicts with AB 2249. The bill passed the Assembly and has been ordered to the Senate for concurrence.
AB 744 (Perez, Chapter 463, Statutes of 2012) required the Department of General Services to identify and provide policy guidance for state agency management of intellectual property developed by state employees or with state funds.
AB 1484 (Krekorian, Chapter 711, Statutes of 2007) repealed California’s Trademark Law and replaced it with the Model State Trademark Law, making numerous changes, including: (1) reducing the registration period from 10 to five years; (2) requiring applicants to state whether a similar mark has been registered in this state; (3) conforming dilution provisions to the federal “likely to dilute” standard; (4) stating that federal case law is persuasive authority; and (5) removing a the provision stating that a registration constitutes prima facie evidence of the registrant’s right to use the mark in California.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee:
- One-time costs of $50,000 to $150,000 (General Fund) to DPR to develop regulations.
- Unknown, potentially significant costs, to ensure compliance with anti-trademarking provisions and to provide required appeals process, if requested.
- Unknown cost for potential litigation for contested contract awards.
California Insurance Commissioner Dave Jones
California State Treasurer John Chiang
California Association of Professional Scientists
California Association of Recreation and Park Districts
California State Parks Foundation
California Park and Recreation Society
East Bay Regional Park District
Sierra Club California
OPPOSITION: (Verified 8/12/16)
None received
ARGUMENTS IN SUPPORT: At the core of the arguments in support is the notion that state parks are part of the state’s public trust and that this bill is essential to protecting the integrity of California’s treasured state parks.
The author argues that to prevent concessionaires from co-opting state landmarks, this bill puts forth three key ideas. First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No State Park official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill specifically prohibits concessionaires from claiming ownership of a name associated with a California State Park. Finally, a concessionaire who asserts a claim of this type will no longer be viewed as a fit partner to contract with California State Parks. This bill permanently disqualifies a concessionaire from consideration for future contracts if they attempt a trademark claim. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward, but which still remain the property of the state. The author asserts that California's treasured heritage sites are a part of our state's public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places.
ASSEMBLY FLOOR: 80-0, 6/2/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
8/19/16 18:49:20
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 2249
:
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16
AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk
SENATE JUDICIARY COMMITTEE: 7-0, 6/28/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 80-0, 6/2/16 - See last page for vote
DIGEST: This bill establishes the California Heritage Protection Act, which prohibits a concession contract from providing a contracting party with a trademark or service mark of the names associated with a unit of the state park system. This bill further requires that a concessionaire forfeit the right to bid on future state parks concession contracts if the concessionaire makes a legal claim or assertion to a trademark or service mark of the historical, cultural, or recreational resources in a state park unit.
Existing law:
- Allows the Department of Parks and Recreation (DPR) to enter into contracts for the construction, maintenance, and operation of concessions within units of the state park system. Existing law describes the steps required to solicit and select concession contract bids, including the criteria for selecting a concession bid.
- Concession contracts are required, with specified exceptions, to be awarded to the best responsible bidder. The best responsible bidder is a bidder who will (1) operate the concession consistent with the contract; (2) operate in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park; and (3) operate in the best interests of the state and the public (Public Resources Code § 5080.05).
- Alternatively, the director of DPR is authorized to negotiate or renegotiate a contract under specific conditions, including the bid process failed to produce a best responsible bidder.
- Requires all concession contracts to contain several provisions, including:
- Maximum term shall be 10 years, unless under certain conditions, as described.
- A concession contract may exceed 50 years if it involves the construction, development and operation of a multiple-unit lodging facility with an initial cost of more than $1.5 million.
- Every concessionaire shall submit to DPR all sales and use tax returns and provide an annual financial statement. Every concessionaire is subject to audit by DPR.
- The state is not obligated to purchase any improvement made by the concessionaire if a contract is terminated for substantial breach.
This bill:
- Makes several legislative findings and declarations regarding the public interest and historical significance served by national, state, and regional parks, including Yosemite National Park. This bill finds and declares that California state parks are held in trust for the people of California, that a legal claim to a trademark right in a name or a names associated with a state park derogates the interests of California, and that making such a claim is indicative of the claimants lack of fitness to serve as a steward of state parks. This bill finds and declares that an agreement entered into by a California state agency that compromises the interests of Californians is “ultra vires” and, therefore, beyond that agencies legal authority to enter.
- Modifies the definition of best responsible bidder, for purposes of existing law governing the awarding of concession contracts for state parks, to include that the bidder shall operate the concession in a manner that protects the state’s trademark and service mark rights in the names associated with a state park and state park resources.
- Provides that a concessionaire, who makes a legal claim to have a trademark or service mark interest in a state park in violation of the law, shall forfeit the right to bid on future state park concession contracts, to the extent authorized by federal law.
- Provides that a concessionaire, who files an application for a trademark or service mark associated with a state park or state park resources that is successfully opposed or cancelled by the state, shall be responsible for the state’s attorney’s fees and costs.
- Prohibits, commencing January 1, 2017, a concession contract awarded for a state park from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park or state park resources, or from serving as the basis for any legal claim that the contracting party has such an interest. States that this prohibition is declaratory of existing law.
- Prohibits a bidder from being awarded a state park concession contract if the bidder has made a legal claim or assertion to have a trademark associated with a state park in violation of this statutory prohibition, or if a court has determined that the bidder has made a claim to have a trademark or service mark interest in the name or names associated with a state or federal park venue without reasonable cause and in bad faith.
- Requires DPR to adopt regulations to provide a bidder who is denied a contract award on the basis of trademark claims with written notice and an opportunity to rebut the denial at a formal hearing.
- Provides that a provision of a concession contract or other agreement that violates these provisions shall be void and unenforceable.
- Provides that this bill's prohibition on state park concession contracts providing the basis for a trademark claim in the name or names associated with a state park shall not be construed to impact a contracting party's valid trademark or service mark rights that were held before the concession contract was awarded.
Background
This bill was sparked by a recent, well-publicized contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015, the National Park Service rebid the contract and awarded a new 15-year concession contract to Aramark who was the successful bidder.
After Delaware North lost the contract they sued the federal government for "breach of an implied contract" and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. According to Delaware North, some of the trademark registrations were acquired by Delaware North from the Curry Company, the previous concessionaire, along with other Curry Company assets, and some were newly registered by Delaware North after they became the concessionaire. Among the names they claim to have a registered trademark property right for are "The Ahwahnee," "Yosemite Lodge," "Wawona," "Curry Village," and "Badger Pass," all of which are well-known venues within Yosemite National Park. Also, the Delaware North Company claims to have a registered trademark for the name "Yosemite National Park" and the iconic Half Dome used on logos and other merchandise sold through the gift shop.
Delaware North has asserted that it is entitled to compensation for the value of its trademarks and other intellectual property rights in Yosemite National Park which it claims is valued at $51 million. The National Park Service has countered that the value is closer to $1.63 million, and alleges that many of the trademarks were registered without its knowledge or consent. The National Park Service has also filed a petition with the United States Patent and Trademark Office seeking to cancel the disputed trademarks.
Delaware North offered to let the park keep the names while the legal process plays out. But, rather than risk an injunction that might interrupt service at Yosemite, the National Park Service removed the contested names from various signs, bridges, and other places within the park, and renamed the venues, at a total cost of $1.7 million. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, is being renamed "the Majestic Yosemite Hotel." The dispute has outraged many park visitors who see the trademark claims as violating the public trust and the deeply held understanding that the national parks are national treasures that belong collectively to the people of the country.
Comments
Impact on National Park concession contracts. While this bill targets concession contracts in state parks, it includes provisions to encourage concessionaires to follow the same rules when entering into contracts with national parks. This bill makes a concessionaire ineligible for a state park concession contract if a court determined that the concessionaire made a legal claim to have a trademark interest in the name or names associated with a state or federal park venue. Thus, while the state cannot dictate the terms of contracts in federal parks, this bill is attempting to use the possibility of losing future concession contracts in state parks as motivation to avoid making trademark claims in national parks.
Related/Prior Legislation
SB 1473 (Committee on Natural Resources and Water, 2016) allows concession contracts at Will Rogers State Beach to be awarded for up to 50 years if the anticipated capital improvements will exceed $1.5 million. Amendments were also added to avoid conflicts with AB 2249. The bill is pending on the Assembly Floor.
AB 744 (Perez, Chapter 463, Statutes of 2012) required the Department of General Services to identify and provide policy guidance for state agency management of intellectual property developed by state employees or with state funds.
AB 1484 (Krekorian, Chapter 711, Statutes of 2007) repealed California’s Trademark Law and replaced it with the Model State Trademark Law, making numerous changes, including: (1) reducing the registration period from 10 to five years; (2) requiring applicants to state whether a similar mark has been registered in this state; (3) conforming dilution provisions to the federal “likely to dilute” standard; (4) stating that federal case law is persuasive authority; and (5) removing a the provision stating that a registration constitutes prima facie evidence of the registrant’s right to use the mark in California.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee:
- One-time costs of $50,000 to $150,000 (General Fund) to DPR to develop regulations.
- Unknown, potentially significant costs, to ensure compliance with anti-trademarking provisions and to provide required appeals process, if requested.
- Unknown cost for potential litigation for contested contract awards.
California Insurance Commissioner Dave Jones
California State Treasurer John Chiang
California Association of Professional Scientists
California Association of Recreation and Park Districts
California State Parks Foundation
California Park and Recreation Society
East Bay Regional Park District
Sierra Club California
OPPOSITION: (Verified 8/12/16)
None received
ARGUMENTS IN SUPPORT: At the core of the arguments in support is the notion that state parks are part of the state’s public trust and that this bill is essential to protecting the integrity of California’s treasured state parks.
The author argues that to prevent concessionaires from co-opting state landmarks, this bill puts forth three key ideas. First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No State Park official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill specifically prohibits concessionaires from claiming ownership of a name associated with a California State Park. Finally, a concessionaire who asserts a claim of this type will no longer be viewed as a fit partner to contract with California State Parks. This bill permanently disqualifies a concessionaire from consideration for future contracts if they attempt a trademark claim. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward, but which still remain the property of the state. The author asserts that California's treasured heritage sites are a part of our state's public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places.
ASSEMBLY FLOOR: 80-0, 6/2/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
8/15/16 20:22:17
**** END ****
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 2249 (Cooley) - State parks
Version: August 2, 2016 | Policy Vote: N.R. & W. 9 - 0, JUD. 7 - 0 |
Urgency: No | Mandate: No |
Hearing Date: August 8, 2016 | Consultant: Narisha Bonakdar |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
AB 2249 prohibits a concession contract from providing a contracting party with a trademark or service mark of the names associated with a state park.
Fiscal Impact:
- One-time costs of $50,000 to $150,000 (General Fund) to the California Department of Parks and Recreation (CDPR) to develop regulations.
- Unknown, potentially significant costs, to ensure compliance with anti-trademarking provisions and to provide required appeals process, if requested.
- Unknown cost for potential litigation for contested contract awards. (See staff comments)
Background:
California Department of Parks and Recreation. CDPR manages California's state park system, comprised of 280 State Parks, State Natural Reserves, State Historic Parks, State Historic Monuments, State beaches, State Recreation Areas, State Vehicular Recreation Areas, State Seashores and State Marine Parks that are visited by over 67 million visitors each year. Together, State Park System lands protect and preserve culturally and environmentally sensitive structures and habitats, threatened plant and animal species, ancient Native American sites, historic structures and artifacts.
Under existing law, the CDPR may enter into contracts for the construction, maintenance, and operation of concessions within units of the state park system, and describes the process through which concession bids are solicited and selected. Currently, CDPR has approximately 200 contracts with vendors.
Concession contracts are required, with specified exceptions, to be awarded to the best responsible bidder. The best responsible bidder is a bidder who will (1) operate the concession consistent with the contract; (2) operate in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park; and (3) operate in the best interests of the state and the public (Public Resources Code § 5080.05).
Alternatively, the director of CDPR is authorized to negotiate or renegotiate a contract under specific conditions, including the bid process failed to produce a best responsible bidder.
Existing law also requires all concession contracts to contain several provisions, including:
- Maximum term shall be 10 years, unless under certain conditions, as described.
- If the concession contract is for construction, development and operation of a multiple-unit lodging facility with an initial cost of more than $1.5 million, the maximum term may be 50 years.
- Every concessionaire shall submit to CDPR all sales and use tax returns and provide an annual financial statement. Every concessionaire is subject to audit by CDPR.
- The state is not obligated to purchase any improvement made by the concessionaire if a contract is terminated for substantial breach.
The Case for the Trademark Clause. This bill was sparked by a recent, well publicized, contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015, the National Park Service rebid the contract and awarded a new 15 year concession contract to Aramark who was the successful bidder.
After Delaware North lost the contract they sued the federal government for "breach of an implied contract" and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. According to Delaware North, some of the trademark registrations were acquired by Delaware North from the Curry Company, the previous concessionaire, along with other Curry Company assets, and some were newly registered by Delaware North after they became the concessionaire. Among the names they claim to have a registered trademark property right for are "The Ahwahnee," "Yosemite Lodge," "Wawona," "Curry Village," and "Badger Pass," all of which are well-known venues within Yosemite National Park. Also, the Delaware North Company claims to have a registered trademark for the name "Yosemite National Park" and the iconic Half Dome used on logos and other merchandise sold through the gift shop.
Delaware North has asserted that it is entitled to compensation for the value of its trademarks and other intellectual property rights in Yosemite National Park which it claims is valued at $51 million. The National Park Service has countered that the value is closer to $1.63 million, and alleges that many of the trademarks were registered without its knowledge or consent. The National Park Service has also filed a petition with the United States Patent and Trademark Office seeking to cancel the disputed trademarks.
Delaware North offered to let the park keep the names while the legal process plays out. But, rather than risk an injunction that might interrupt service at Yosemite, the National Park Service removed the contested names from various signs, bridges, and other places within the park, and renamed the venues, at a total cost of $1.7 million. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, is being renamed "the Majestic Yosemite Hotel." The dispute has outraged many park visitors who see the trademark claims as violating the public trust and the deeply held understanding that the national parks are national treasures that belong collectively to the people of the country.
Proposed Law:
This bill establishes the California Heritage Protection Act. Specifically, the bill:
- Prohibits a concession contract from providing a contracting party with a trademark or service mark of the names associated with a state park.
- Makes several legislative findings and declarations regarding the public interest and historical significance served by national, state, and regional parks, including Yosemite National Park.
- Modifies the definition of best responsible bidder, for purposes of existing law governing the awarding of concession contracts for state parks, to include that the bidder shall operate the concession in a manner that protects the state’s trademark and service mark rights in the names associated with a state park and state park resources.
- Provides that a concessionaire, who makes a legal claim to have a trademark or service mark interest in a state park in violation of the law, shall forfeit the right to bid on future state park concession contracts, to the extent authorized by federal law.
- Provides that a concessionaire who files an application for a trademark or service mark associated with a state park or state park resources that is successfully opposed or cancelled by the state, shall be responsible for the state’s attorney’s fees and costs.
- Prohibits a concession contract awarded for a state park from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park or state park resources, or from serving as the basis for any legal claim that the contracting party has such an interest.
- Prohibits a bidder from being awarded a state park concession contract if the bidder has made a legal claim or assertion to have a trademark associated with a state park in violation of this statutory prohibition, or if a court has determined that the bidder has made a claim to have a trademark or service mark interest in the name or names associated with a state or federal park venue without reasonable cause and in bad faith.
- Requires CDPR to adopt regulations to provide a bidder who is denied a contract award on the basis of trademark claims with written notice and an opportunity to rebut the denial at a formal hearing.
- Provides that a provision of a concession contract or other agreement that violates these provisions shall be void and unenforceable.
- Provides that this bill's prohibition on state park concession contracts providing the basis for a trademark claim in the name or names associated with a state park shall not be construed to impact a contracting party's valid trademark or service mark rights that were held before the concession contract was awarded.
- States that the bill is declaratory of existing law.
Staff Comments:
Purpose. According to the author, the current concessionaire of Yosemite National Park has operated there since 1993 but recently lost the bid to renew their contract. In response, they claimed the names of several Yosemite landmarks as their intellectual property. Unable to resolve the dispute, the National Park Service has re-named the Ahwahnee Hotel, Curry Village and the Wawona Hotel. This bill will prevent similar claims in state parks.
Current contracts. The contract typically used by CDPR for state park concessions in California expressly prohibits a concessionaire from obtaining a trademark claim in any name or logo associated with a state park, and provides that any such trademark that might be created during the period of the contract shall continue in CDPR's exclusive ownership upon termination of the Contract. While this is the current practice at CDPR, this bill would ensure that such protections continue to apply in the future.
CDPR’s fiscal. According to the CDPR,
“The Department cannot comply with the requirements of this bill within existing resources, therefore, this bill would have General Fund implications. Additional costs would be associated with developing regulations and the additional workload to research the background of potential concessionaires.”
CDPR estimates one-time costs of $150,000 (General Fund) to develop regulations, and approximately $335,000 annually (General Fund) for staff to research potential concessionaires, amend current concession contracts; hold appeals hearings, if requested; and conduct outreach on this new law.
It is not clear that the level of resource-intensive, research accounted for in CDPR’s fiscal is intended; however, this interpretation highlights a potentially costly ambiguity in the bill given that CDPR’s interpretation will guide implementation. The author may wish to clarify that CDPR may allow contract bidders to self-certify compliance with the law, and to only require CDPR to deny or end a contract if it becomes aware of a violation.
Potential litigation? The CDPR notes the “likelihood of additional Departmental costs for Attorney General Representation due to contested contract awards. For context, billing for representation by the Attorney General in a recent contested concession contract award was $80,000. That case was considered straightforward and uncomplicated.”
-- END --
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
Bill No: AB 2249 (Author:Cooley)
Version: May 27, 2016
Hearing Date: June 28, 2016
Fiscal: Yes
Urgency: No
Consultant: TH
SUBJECT
State Parks
DESCRIPTION
This bill provides, commencing January 1, 2017, that a concession contract awarded to a contracting party shall not provide any interest in a trademark or service mark in the name or names associated with a state park venue, or its historical, cultural, or recreational resources. This bill would also preclude contracting parties who pursue claims in violation of the above provision, or in bad faith without reasonable cause as determined by a court, from being awarded concession contracts, as specified.
BACKGROUND
Late last year, the National Park Service (NPS) became embroiled in litigation with a former long-term concessionaire called Delaware North over intellectual property rights to place names in Yosemite National Park. During the course of its concession contract, Delaware North filed for trademark protection of several place names in the park, including “Yosemite National Park,” “The Ahwahnee,” “Curry Village,” “Wawona” and “Badger Pass.” According to a recent news story, “[a]fter losing the lucrative, 15-year Yosemite concession contract to a subsidiary of the Philadelphia-based Aramark Sports & Entertainment, [Delaware North] sued the park service in claims court for what it says is the value of its intellectual property, the trademarks.” (Michael Doyle, U.S. Steps Up Fight Over Yosemite Names, Asking Trademarks Be Canceled, Sacramento Bee (March 18, 2016) <http://www.sacbee.com/news/nation-world/national/ article66878672.html> [as of June 22, 2016].) The Sacramento Bee reports:
Amid the contract competition, Delaware North had valued its overall “intangible” property in Yosemite at $51 million, with the trademarks pegged at $44 million and other assets such as a customer database at $7 million. The lawsuit asserted that the park service’s “failure to require Aramark to purchase and pay fair value for the property” hurt Delaware North. (Michael Doyle, Yosemite Concessionaire Wants $44 Million for Trademarked Park Names, Fresno Bee (January 5, 2016) <http://www.fresnobee.com/news/local/article53172300.html> [as of June 22, 2016].)
Responding to the suit, the U.S. Department of the Interior has filed a petition with the Trademark Trial and Appeal Board to cancel Delaware North’s contested trademark registrations, stating “[t]he fame or reputation of the National Park Service is such that, when the trademarks are used with [Delaware North’s] goods or services, a connection with the National Park Service is presumed,” and notes that the appeal board “can cancel trademarks that falsely suggest a connection with persons, institutions, or national symbols.” (U.S. Steps Up Fight Over Yosemite Names, Asking Trademarks Be Canceled, Sacramento Bee.)
This bill responds to the problems confronting the National Park Service by both declaring that contracts entered into with the Department of Parks and Recreation (State Parks) after January 1, 2017, cannot provide a contracting concessioner with an interest in a trademark or service mark, and by precluding the State Parks from awarding a concession contract to any party that claims a trademark or service mark in violation of this restriction, or pursues an interest in such a trademark or service mark in bad faith without reasonable cause as determined by a court.
CHANGES TO EXISTING LAW
Existing federal law, Article I, Section 8 of the United States Constitution, provides that Congress shall have the power to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Existing federal law, the Lanham Act, provides the owner of a federally registered mark with protection against use of similar marks if confusion might result. (15 U.S.C. 1051 et seq.)
Existing law, the Model State Trademark Law, allows any person who adopts and uses a trademark or service mark in California to register that mark with the Secretary of State, and renders liable any person who infringes upon the use of such a mark, as specified. (Bus. & Prof. Code Sec. 14200)
Existing law makes the following definitions:
- “Trademark” means any word, name, symbol, or device, or any combination thereof, used by a person to identify and distinguish the goods of that person, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown; and
- “Service mark” means any word, name, symbol, or device, or any combination thereof, used by a person to identify and distinguish the services of that person, including a unique service, from the services of others, and to indicate the source of the services, even if that source is unknown. (Bus. & Prof. Code Sec. 14202.)
Existing law authorizes the Department of Parks and Recreation to enter into contracts for the construction, maintenance, and operation of concessions within units of the state park system for the safety and convenience of the general public in the use and enjoyment of, and the enhancement of recreational and educational experiences at, units of the state park system. (Pub. Resources Code Sec. 5080.03.)
Existing law specifies that all contracts authorizing occupancy of any portion of the state park system for a period of more than two years shall be awarded to the best responsible bidder. “Best responsible bidder” means the bidder, as determined by specific standards established by the department, which, as determined by the department, will operate the concession: (1) consistent with the contract; (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated; and (3) in the best interests of the state and public. (Pub. Resources Code Sec. 5080.05.)
This bill adds to the definition of “best responsible bidder” a bidder who will operate a concession in a manner that protects the state’s trademark and service mark rights in the names associated with a state park venue and its historical, cultural, and recreational resources.
This bill states that commencing on January 1, 2017, a concession contract shall not provide the contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest, as specified. Any part of a contract or other agreement that violates this provision shall be void and unenforceable.
This bill provides that if a concessionaire makes a legal claim or assertion to have a trademark or service mark interest in violation of the above provision, the concessionaire shall forfeit the right to bid on future state park concession contracts, as specified.
This bill states that a bidder on a concession contract shall not be awarded a contract if either of the following applies:
- the bidder has made a legal claim or assertion to have a trademark or service mark interest in violation the above provision; or
- a court has determined that the bidder has made a legal claim or assertion to have a trademark or service mark interest in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith.
This bill directs the department to adopt regulations to provide a bidder who is denied a contract award with written notice of that denial and an opportunity to rebut the basis for the contract denial at a formal hearing.
This bill provides that if a current or former concessionaire 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.
This bill provides that it shall not be construed to impact a contracting party’s valid trademark or service mark rights that were held before the concession contract was awarded.
This bill makes related findings and declarations.
COMMENT
- Stated need for the bill
According to the author:
AB 2249 is a “Heritage Protection Bill” for our state which we believe can influence concession practices beyond the bill’s formal legal reach as law. Despite being on the National Register of Historic Places, a U.S. National Park’s outgoing concessionaire filed papers to trademark numerous Yosemite National Park sites’ names. This has now forced a name change to such storied California venues as the Ahwahnee Hotel, Curry Village and the Wawona Hotel as part of this ongoing litigation.
In response to this dispute, AB 2249 protects historic California state park trademarks. It does so by prohibiting concessionaires from claiming ownership of a name associated with a California state park and further declares that if a bidder makes such a claim, they are disqualified from bidding on future contracts. A state law cannot unilaterally undo what the Yosemite concessionaire has done. The authors believe, however, that the ideas embodied in AB 2249 can and should influence the resolution of the federal dispute while also setting a firm state policy. AB 2249’s impact rests on the premise that a concessionaire’s business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward. California’s treasured heritage sites are a part of our state’s public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places. AB 2249 assures this.
To prevent concessionaires from co-opting state landmarks, AB 2249 puts forth three key ideas: First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No State Parks official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill specifically prohibits concessionaires from claiming ownership of a name associated with a California state park. Finally, a concessionaire who asserts a claim of this type will no longer be viewed as a fit partner to contract with California state parks. AB 2249 permanently disqualifies a concessionaire from consideration for future contracts if they attempt a trademark claim.
- Safeguarding state intellectual property
Trademarks are distinctive marks that are used by individuals or entities to identify the source of their products or services to consumers, thus, distinguishing those products or services from those of other entities. These marks also protect consumers by preventing the public from being misled as to the origin or quality of a product or service.
Both federal and state law allow for the registration of trademarks, providing an owner with the right to exclude others from using a specific mark or from using one confusingly similar to their mark. As federal registration is not required, many companies who transact business solely within California do not federally register their trademarks. California’s Model State Trademark Law provides that trademarks may be registered with the Secretary of State, although registration is not required to protect them, since trademark rights also arise under common law as a result of actual use in the marketplace. Federal and state trademark laws also provide remedies to holders of trademarks and service marks – the equivalent mark for providers of services – against those who infringe upon their mark.
This bill helps preserve the state’s interest in trademarks and service marks closely connected with places and historical, cultural, or recreational resources in units of the State Parks. It precludes park concessionaires from coopting or developing brand identities in connection with sites to which they have been given temporary guardianship or control by clearly stating that concession contracts entered into or renewed after January 1, 2017, shall not serve as the basis for any legal claim that the contracting party has a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources.
This bill would also preserve the state’s interest in trademarks and service marks closely connected with places and historical, cultural, or recreational resources in units of the State Parks by disqualifying concessionaires who attempt to, or have attempted to, infringe upon these or similar interests from receiving future concession contracts. First, this bill would provide that a bidder on a concession contract shall be disqualified from receiving that contract, or any future state park concession contract, if they assert a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, on the basis of a contract award made after January 1, 2017. Second, a bidder who is determined to have made a legal claim or assertion to a trademark or service mark interest in the name or names associated with either a state or federal park venue, or its historical, cultural, or recreational resources, without reasonable cause and in bad faith as determined by a court would also be ineligible to receive a concession contract under this bill. This second ineligibility provision would cover bad faith claims made either before or after January 1, 2017.
However, this bill would also require that concessionaires determined to be ineligible for a concession contract must still be afforded written notice of the denial and an opportunity to rebut the basis for the denial at a formal hearing. This notice and hearing procedure ensures that any concessionaire adversely impacted by a determination of ineligibility under this bill’s provisions is afforded some measure of basic due process. This bill would also provide that it does not impact a contracting party’s valid trademark or service mark rights held before a concession contract was awarded, thereby preserving any intellectual property interest in such marks acquired before the concessionaire’s contractual relationship with the state began.
- Attorney fees
This bill would also provide that if a current or former concessionaire 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.
Generally in the United States, the “American rule” is that parties are to bear their own costs in civil litigation. In Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, the United States Supreme Court held that it was the province of the legislative branch to craft exceptions to the “American rule,” and that courts were not free to shift such costs absent express legislative authorization. (Id. at 269-270.) In 1977, the Legislature enacted Code of Civil Procedure Section 1021.5, which appeared to be “in significant measure … an explicit reaction to the United States Supreme Court’s Alyeska decision.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 934.)
Section 1021.5 provides courts with authority to award attorney’s fees in actions to enforce important rights in the public interest that confer a significant benefit on a large class of persons. Specifically, Section 1021.5 was intended to encourage litigation deemed to be in the public interest by persons acting as a private attorney general. This doctrine rests on the recognition that privately initiated lawsuits are often essential to the effectuation of public policies embodied in constitutional or statutory provisions, and that without some mechanism authorizing the award of attorney fees, private actions to enforce such public policies would be financially impracticable. As explained recently by the California Supreme Court, “section 1021.5 [addresses] the problem of affordability of such lawsuits. Because public interest litigation often yields nonpecuniary and intangible or widely diffused benefits, and because such litigation is often complex and therefore expensive, litigants will be unable either to afford to pay an attorney hourly fee or to entice an attorney to accept the case with the prospect of contingency fees, thereby often making public interest litigation as a practical matter . . . infeasible.” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1219 [internal citations and quotation marks omitted].)
The standard set by Section 1021.5 is rigorous and is conditioned upon three requirements being met: (1) a significant benefit is provided to the general public; (2) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and (3) such fees should not in the interest of justice be paid out of the recovery, if any. Additionally, the statute specifically provides for an important exception to this rule when the matter involves a public agency, as follows: “With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities.” (Code Civ. Proc. Sec. 1021.5.) In other words, a public agency may not receive attorney fees under Section 1021.5.
Costs of litigation, in contrast, are generally recoverable by the prevailing party in civil litigation as a matter of right. Code of Civil Procedure Section 1032 states that, “except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Other provisions in the Code of Civil Procedure, such as Section 1033.5, enumerate specific items that may be recovered as costs as well as those which cannot be claimed. The applicable sections of California’s Model State Trademark Law do not appear to expressly bar a prevailing party from recovering their costs in an action brought to invalidate a trademark or service mark. Consequently, existing law currently authorizes the state to recover its cost when it prevails in such an action.
The types of suits that would be subject to attorney fee shifting under this bill would largely involve a public entity bringing suit against a private person or entity, which is not one of the fee-shifting scenarios authorized by Section 1021.5. Allowing fee shifting by a public entity, such as the State Parks, against private individuals could undermine an individual’s ability to pursue judicial redress to enforce their rights. Fears of having to pay a substantial sum in attorney fees may disincentivize individuals from bringing meritorious claims against the State Parks, thereby undermining an important check on the powers exercised by the agency, particularly since the Model State Trademark Law already authorizes parties to recover all damages sustained as a consequence of the filing or registration of any mark by knowingly making a false or fraudulent representation or declaration. (See Bus & Prof Code Sec 14240.)
- Retroactivity
As noted in Comment 2, this bill would declare that commencing January 1, 2017, specified concession contracts shall not provide a contracting party with a trademark or service mark interest in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claim that the contracting party has that interest. In unresolved tension, this bill also states that this provision “does not constitute a change in, but is declaratory of, existing law.”
“Generally, statutes operate prospectively only.” (McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 475.)
[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265 (internal citations omitted).)
“A statute does not operate [retroactively] merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law. Rather, a court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” (Landgraf, 511 U.S. at 269-70 (internal citations omitted).) “This is not to say,” however, “that a statute may never apply retroactively.” (McClung, 34 Cal.4th at 475.) In California, “[a] statute’s retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent some constitutional objection to retroactivity.” (Id., at 475.) Under California law, “a statute may be applied retroactively only if it contains express language of retroactivity or if other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.” (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844.)
On the other hand, legislation which merely clarifies existing law may be found not retroactive in effect. (See, e.g., Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1028.) “Courts are not to infer that legislation merely clarifies existing law unless (1) the nature of the amendment clearly demonstrates such an intent or (2) the legislature has itself stated that the particular amendment is merely declaratory of existing law.” (Goldman v. Standard Ins. Co. (9th Cir. 2003) 341 F.3d 1023, 1029.
While it may be true that concession contracts, no matter when they were entered into, can never serve as the basis of a trademark or service mark claim to state park venues, or historical, cultural, or recreational resources, this particular provision identified as declaratory of existing law clearly indicates that it operates prospectively, beginning as it does with the clause “commencing January 1, 2017.” To resolve this tension, the Committee may wish to offer amendments that de-couple the principle that concession contracts cannot give rise to specified intellectual property claims, from the new penalties imposed on parties who make such claims after January 1, 2017.
Support: California Association of Professional Scientists; California Association of Recreation and Park Districts; California Department of Insurance; California Park and Recreation Society; California State Parks Foundation; California State Treasurer; East Bay Regional Parks District; Sierra Club California
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation:
AB 744 (Perez, Ch. 463, Stats. 2012) requires the Department of General Services to identify and provide policy guidance for state agency management of intellectual property developed by state employees or with state funds.
AB 1484 (Krekorian, Ch. 711, Stats. 2007) repealed California’s Trademark Law and replaced it with the Model State Trademark Law, making numerous changes, including: (1) reducing the registration period from 10 to 5 years; (2) requiring applicants to state whether a similar mark has been registered in this state; (3) conforming dilution provisions to the federal “likely to dilute” standard; (4) stating that federal case law is persuasive authority; and (5) removing a the provision stating that a registration constitutes prima facie evidence of the registrant’s right to use the mark in California.
Prior Vote:
Senate Natural Resources and Water Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 80, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Water, Parks and Wildlife Committee (Ayes 15, Noes 0)
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SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 2249 Hearing Date: June 14, 2016
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Urgency: | Fiscal: | ||
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Subject: State parks
BACKGROUND AND EXISTING LAW
Under existing law, the Department of Parks and Recreation (DPR) may enter into contracts for the construction, maintenance, and operation of concessions within units of the state park system. Existing law also describes the steps required to solicit and select concession contract bids, including the criteria for selecting a concession bid.
Concession contracts are required, with specified exceptions, to be awarded to the best responsible bidder. The best responsible bidder is a bidder who will (1) operate the concession consistent with the contract; (2) operate in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park; and (3) operate in the best interests of the state and the public (Public Resources Code § 5080.05).
Alternatively, the director of DPR is authorized to negotiate or renegotiate a contract under specific conditions, including the bid process failed to produce a best responsible bidder.
Existing law also requires all concession contracts to contain several provisions, including:
- Maximum term shall be 10 years, unless under certain conditions, as described.
- If the concession contract is for construction, development and operation of a multiple-unit lodging facility with an initial cost of more than $1.5 million, the maximum term may be 50 years.
- Every concessionaire shall submit to DPR all sales and use tax returns and provide an annual financial statement. Every concessionaire is subject to audit by DPR.
- The state is not obligated to purchase any improvement made by the concessionaire if a contract is terminated for substantial breach.
This bill was sparked by a recent, well publicized, contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015, the National Park Service rebid the contract and awarded a new 15 year concession contract to Aramark who was the successful bidder.
After Delaware North lost the contract they sued the federal government for "breach of an implied contract" and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. According to Delaware North, some of the trademark registrations were acquired by Delaware North from the Curry Company, the previous concessionaire, along with other Curry Company assets, and some were newly registered by Delaware North after they became the concessionaire. Among the names they claim to have a registered trademark property right for are "The Ahwahnee," "Yosemite Lodge," "Wawona," "Curry Village," and "Badger Pass," all of which are well-known venues within Yosemite National Park. Also, the Delaware North Company claims to have a registered trademark for the name "Yosemite National Park" and the iconic Half Dome used on logos and other merchandise sold through the gift shop.
Delaware North has asserted that it is entitled to compensation for the value of its trademarks and other intellectual property rights in Yosemite National Park which it claims is valued at $51 million. The National Park Service has countered that the value is closer to $1.63 million, and alleges that many of the trademarks were registered without its knowledge or consent. The National Park Service has also filed a petition with the United States Patent and Trademark Office seeking to cancel the disputed trademarks.
Delaware North offered to let the park keep the names while the legal process plays out. But, rather than risk an injunction that might interrupt service at Yosemite, the National Park Service removed the contested names from various signs, bridges, and other places within the park, and renamed the venues, at a total cost of $1.7 million. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, is being renamed "the Majestic Yosemite Hotel." The dispute has outraged many park visitors who see the trademark claims as violating the public trust and the deeply held understanding that the national parks are national treasures that belong collectively to the people of the country.
PROPOSED LAW
This bill would establish the California Heritage Protection Act. This act would prohibit a concession contract from providing a contracting party with a trademark or service mark of the names associated with a state park.
Specifically, this bill would:
- Make several legislative findings and declarations regarding the public interest and historical significance served by national, state, and regional parks, including Yosemite National Park. Find and declare that California state parks are held in trust for the people of California, that a legal claim to a trademark right in a name or a names associated with a state park derogates the interests of California, and that making such a claim is indicative of the claimants lack of fitness to serve as a steward of state parks. Find and declare that an agreement entered into by a California state agency that compromises the interests of Californians is “ultra vires” and, therefore, beyond that agencies legal authority to enter.
- Modify the definition of best responsible bidder, for purposes of existing law governing the awarding of concession contracts for state parks, to include that the bidder shall operate the concession in a manner that protects the state’s trademark and service mark rights in the names associated with a state park and state park resources.
- Provide that a concessionaire who makes a legal claim to have a trademark or service mark interest in a state park in violation of the law, shall forfeit the right to bid on future state park concession contracts, to the extent authorized by federal law.
- Provide that a concessionaire who files an application for a trademark or service mark associated with a state park or state park resources that is successfully opposed or cancelled by the state, shall be responsible for the state’s attorney’s fees and costs.
- Commencing January 1, 2017, prohibit a concession contract awarded for a state park from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park or state park resources, or from serving as the basis for any legal claim that the contracting party has such an interest. State that this prohibition is declaratory of existing law.
- Prohibit a bidder from being awarded a state park concession contract if the bidder has made a legal claim or assertion to have a trademark associated with a state park in violation of this statutory prohibition, or if a court has determined that the bidder has made a claim to have a trademark or service mark interest in the name or names associated with a state or federal park venue without reasonable cause and in bad faith.
- Require DPR to adopt regulations to provide a bidder who is denied a contract award on the basis of trademark claims with written notice and an opportunity to rebut the denial at a formal hearing.
- Provide that a provision of a concession contract or other agreement that violates these provisions shall be void and unenforceable.
- Provide that this bill's prohibition on state park concession contracts providing the basis for a trademark claim in the name or names associated with a state park shall not be construed to impact a contracting party's valid trademark or service mark rights that were held before the concession contract was awarded.
ARGUMENTS IN SUPPORT
At the core of the arguments in support is the notion that state parks are part of the state’s public trust and that this bill is essential to protecting the integrity of California’s treasured state parks.
The author argues that “to prevent concessionaires from co-opting state landmarks, this bill puts forth three key ideas. First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No State Park official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill specifically prohibits concessionaires from claiming ownership of a name associated with a California State Park. Finally, a concessionaire who asserts a claim of this type will no longer be viewed as a fit partner to contract with California State Parks. This bill permanently disqualifies a concessionaire from consideration for future contracts if they attempt a trademark claim. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward, but which still remain the property of the state. The author asserts that California's treasured heritage sites are a part of our state's public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places.
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
Impact on National Park concession contracts: While this bill targets concession contracts in state parks, it includes provisions to encourage concessionaires to follow the same rules when entering into contracts with national parks. This bill would make a concessionaire ineligible for a state park concession contract if a court determined that the concessionaire made a legal claim to have a trademark interest in the name or names associated with a state or federal park venue. Thus, while the state cannot dictate the terms of contracts in federal parks, this bill is attempting to use the possibility of losing future concession contracts in state parks as motivation to avoid making trademark claims in national parks.
Double referred: The Rules Committee referred this bill to both the Committee on Natural Resources and Water and the Committee on Judiciary. Therefore, if this bill passes this committee, it will be referred to the Committee on Judiciary, which will consider the issues within their jurisdiction.
SUPPORT
California Association of Professional Scientists
California Association of Recreation and Park Districts
California State Parks Foundation
Dave Jones, Insurance Commissioner, Department of Insurance
Sierra Club California
OPPOSITION
None Received
-- END --
ASSEMBLY THIRD READING
ATR Bill Id:AB 2249
Author:(Cooley, et al.)
As Amended Ver:May 27, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Water | 15-0 | Levine, Gallagher, Bigelow, Dababneh, Dodd, Gordon, Cristina Garcia, Gomez, Harper, Lopez, Mathis, Medina, Olsen, Salas, Williams | |
Judiciary | 10-0 | Mark Stone, Wagner, Alejo, Chau, Chiu, Gallagher, Cristina Garcia, Holden, Maienschein, Ting | |
Appropriations | 20-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, Roger Hernández, Holden, Jones, Obernolte, Quirk, Santiago, Wagner, Weber, Wood |
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SUMMARY: Enacts the California Heritage Protection Act, which prohibits a concession contract from providing a contracting party with a trademark interest in the name or names associated with a state park. Specifically, this bill:
- States legislative findings and declarations regarding the public interest and historical significance served by national, state and regional parks, including Yosemite National Park. Finds and declares that California state parks are held in trust for the people of California, and that a legal claim to a trademark right in a name or names associated with a state park derogates the interests of California and is indicative of the claimant's lack of fitness to serve as a steward of state parks. Finds and declares that an agreement entered into by any California state agency that compromises the interests of Californians is ultra vires and therefore beyond that agency's legal authority.
- Modifies the definition of a best responsible bidder, for purposes of existing law governing the awarding of concession contracts for state parks, to include that the bidder shall operate the concession in a manner that protects the state's trademark and service mark rights in the names associated with a state park and state park resources.
- Provides that a concessionaire who makes a legal claim to have a trademark interest in a state park in violation of the law, shall forfeit the right to bid on future state park concession contracts, to the extent authorized by federal law.
- Provides that a concessionaire who files an application for a trademark or service mark associated with a state park or state park resources, that is successfully opposed or cancelled by the state, shall be responsible for the state's attorney's fees and costs.
- Commencing January 1, 2017, prohibits a concession contract awarded for a state park from providing the contracting party with a trademark or service mark interest in the name or names associated with a state park or state park resources, or from serving as the basis for any legal claim that the contracting party has such an interest. States that this prohibition is declaratory of existing law.
- Prohibits a bidder from being awarded a state park concession contract if the bidder has made a legal claim or assertion to have a trademark associated with a state park in violation of this statutory prohibition, or if a court has determined that the bidder has made a claim to have a trademark or service mark interest in the name or names associated with a state or federal park venue without reasonable cause and in bad faith.
- Requires the Department of Parks and Recreation (DPR) to adopt regulations to provide a bidder who is denied a contract award on the basis of trademark claims with written notice and an opportunity to rebut the denial at a formal hearing.
- Provides that a provision of a concession contract or other agreement that violates these provisions shall be void and unenforceable.
- Provides that this bill's prohibition on state park concession contracts providing the basis for a trademark claim in the name or names associated with a state park shall not be construed to impact a contracting party's valid trademark or service mark rights that were held before the concession contract was awarded.
EXISTING LAW:
- Authorizes DPR to enter into contracts for the operation of concessions within units of the state park system. Requires, with specified exceptions, that concession contracts be awarded to the best responsible bidder. Defines best responsible bidder as the bidder whom, as determined by DPR, will operate the concession consistent with the contract, in a manner fully compatible with and complimentary to the characteristics, features, and theme of the park unit, and in the best interests of the state and public.
- Alternatively, authorizes DPR, if the director of DPR determines it is in the best interests of the state, and after giving notice to the State Park & Recreation Commission, to award concession contracts to the best responsible person or entity submitting a proposal for a concession contract in response to a request for proposal. Defines best responsible person or entity as the person or entity that, as determined by specific standards established by DPR, will operate the concession in the best interests of the state and the public.
- Requires any proposed concession contract that is expected to involve a total investment or annual gross sales of over $1,000,000 to be reviewed by the State Park & Recreation Commission, and submitted to the Joint Legislative Budget Committee for review at least 30 days prior to advertising for bids.
FISCAL EFFECT: According to the Assembly Appropriations Committee:
- Initial costs of up to $500,000 for DPR (General Fund or special fund) to adopt regulations to establish a process for contested contract awards, determine eligibility of concessionaires, and amend existing contracts as necessary.
- Ongoing annual costs of $335,000 (General Fund or special fund).
COMMENTS: This bill prohibits a state park concession contract from providing, or serving as the basis for, any claim of a trademark right in the name or names associated with a state park.
The author notes that to prevent concessionaires from co-opting state landmarks, this bill does three things. First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No state park official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill prohibits concessionaires from claiming ownership of a name associated with a California state park. Third, a concessionaire who asserts such a claim will no longer be viewed as a fit partner to contract with DPR. This bill disqualifies a concessionaire from consideration for future contracts if they assert a trademark claim in violation of this bill's provisions, or are found by a court to have asserted such a claim without reasonable cause and in bad faith. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities, for which they have been entrusted as a steward, but which still remain the property of the state.
This bill was sparked by a recent contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015 the National Park Service rebid the contract and awarded a new 15 year concession contract to Aramark who was the successful bidder. After Delaware North lost the contract they sued the federal government for breach of an implied contract and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. While the litigation is pending, the National Park Service has started removing the contested names from various signs, bridges, and other places within the park, and renaming the venues. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, has been renamed the Majestic Yosemite Hotel.
Supporters of this bill assert that allowing trademark claims in state or national parks would be a violation of the public trust and the deeply held understanding that state and national parks are treasured resources that belong collectively to the people of the state and country.
In order to prevent a similar situation from occurring in California state parks, this bill would prohibit a state park concession contract from providing, or forming the basis for, a trademark or service mark interest in the name or names associated with a state park. This bill would also make any bidder who asserts such a legal claim ineligible to be awarded a contract.
The contract currently used by DPR for state park concessions in California expressly prohibits a concessionaire from obtaining a trademark claim in any name or logo associated with a state park, and provides that any such trademark that might be created during the period of the contract shall continue in DPR's exclusive ownership upon termination of the contract. While this is the current practice at DPR, this bill would ensure that such protections continue to apply in the future.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0003302
Date of Hearing: May 4, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
ABPCA Bill Id:AB 2249
Author:(Cooley) – As Amended Ver:April 18, 2016
Policy Committee: | Water, Parks and Wildlife | Vote: | 15 - 0 |
Judiciary | 10 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill revises several provisions of law that govern state park concession contracts. Specifically, this bill:
- Modifies the definition of best responsible bidder to require the bidder to operate the concession in a manner that protects the state’s interest in the names associated with the venue and its historical, cultural and recreational resources, as specified.
- Prohibits a concession contract from providing the contracting party with a specified interest in the names associated with a state park venue or its historical, cultural or recreational resources beginning January 1, 2017. Prohibits a concession contract from serving as the basis for any legal claim that the contracting party has an interest. Declares these provisions are existing law. Declares a contract entered into before January 1, 2017, with specified interests void and unenforceable.
- Bans state park concessionaires from bidding on future contracts if the concessionaire makes a legal claim with respect to a federal or state park venue, as specified.
- Requires the Department of Parks and Recreation (DPR) to adopt regulations to provide written notice and due process for contract denial.
- Requires a concessionaire to pay state legal costs under specified circumstances.
FISCAL EFFECT:
- Initial costs of up to $500,000 for DPR (GF or special fund) to adopt regulations to establish a process for contested contract awards, determine eligibility of concessionaires, and amend existing contracts as necessary.
- Ongoing annual costs of $335,000 (GF or special fund).
COMMENTS:
Rationale. According to the author, the current concessionaire of Yosemite National Park has operated there since 1993 but recently lost the bid to renew their contract. In response, they claimed the names of several Yosemite landmarks as their intellectual property. Unable to resolve the dispute, the National Park Service has re-named the Ahwahnee Hotel, Curry Village and the Wawona Hotel. This bill will prevent similar claims in state parks.
The contract typically used by DPR for state park concessions in California expressly prohibits a concessionaire from obtaining a trademark claim in any name or logo associated with a state park, and provides that any such trademark that might be created during the period of the contract shall continue in DPR's exclusive ownership upon termination of the Contract. While this is the current practice at DPR, this bill would ensure that such protections continue to apply in the future.
Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081
Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 2249
Author:(Cooley) – As Amended Ver:March 30, 2016
As Proposed to be Amended
SUBJECT: STATE PARK CONCESSION CONTRACTS
KEY ISSUE: SHOULD A state park concessionaire BE BANNED FROM BIDDING ON future contracts if the concessionaire uses its contract as a basis to assert trademark rights to the names of a state park venue?
SYNOPSIS
Earlier this year, The Ahwahnee Hotel and other Yosemite National Park landmarks were renamed due to a legal trademark dispute between Delaware North Company, the outgoing Yosemite National Park concessionaire, and the National Park Service, the federal agency responsible for managing all federal parks. While it is unclear whether Delaware North Company has legitimate property interests in the trademarks associated with Yosemite Park, this bill is a reaction to the dispute, and Delaware North Company’s assertions.
As introduced, this bill raised significant legal and possibly constitutional concerns, including whether this bill affected the Contract Clause, and due process rights, and whether it amounted to an Ex Post Facto law. Given that the author has taken amendments to apply this bill prospectively, those legal concerns have been addressed.
Among other things, this bill, as proposed to be amended, provides that commencing on January 1, 2017, a concession contract awarded to a state park concessionaire shall not provide the contracting party with any trademark in the name of a state park venue, or its historical, cultural, or recreational resources, and shall not serve as a basis for any legal claim that the contracting party has such an interest. This bill also provides that to the extent allowed by federal law, a bidder shall not be awarded with a state park concession contract if either (1) the bidder makes a legal claim or assertion to have a trademark interest in the name or names associated with a state park venue; or (2) a court has determined that the bidder made a legal claim or assertion to have a trademark in the name of a state or federal park venue without reasonable cause and in bad faith. This bill also redefines a “best responsible bidder” to include a bidder who will operate a state park concession in a manner that protects the state’s trademark rights to the names associated with state park venues. To address concerns about whether this bill affected existing trademark rights of state concessionaires, this bill provides that it does not impact a contracting party’s valid trademark rights that were held before the concession contract was awarded.
This bill previously passed out of the Assembly Committee on Water, Parks, and Wildlife with a 15-0 vote and has support from the California Association of Professional Scientists, the California Association of Recreation and Park Districts, and the California State Parks Foundation; the bill has no opposition on file.
SUMMARY: Permanently bars a state park concessionaire from bidding on future contracts if the concessionaire uses its contract as a basis to assert trademark rights to the names of a state park venue. Specifically, this bill:
- Provides that commencing on January 1, 2017, a concession contract, as provided, shall not provide the contracting party with any trademark or service mark in the name or names associated with a state park venue, or its historical, cultural, or recreational resources, and shall not serve as the basis for any legal claims that the contracting party has such an interest.
- Provides that #1 does not constitute a change in, but is declaratory of, existing law.
- Provides that a contract or other agreement that violates #1 shall be void and unenforceable.
- Provides that to the extent authorized by federal law, a bidder shall not be awarded with a contract, as provided, if the bidder does any of the following:
- Makes a legal claim or assertion to have a trademark or service mark interest in violation of #1; or
- A court has determined that the bidder made a legal claim or assertion to have a trademark or service mark in the name or names associated with a state or federal park venue, or its historical, cultural, or recreational resources without reasonable cause and in bad faith.
- Requires the Department of Parks and Recreation to establish procedures, by regulation, that provide a bidder who is denied an award, as specified, with written notice of that denial and an opportunity to rebut that denial in a formal hearing.
- Requires all concession contracts, as specified, to include the following contractual provisions:
- A concessionaire who makes a legal claim or assertion to have a trademark or service mark interest, as provided, pertaining to this state’s historical, cultural, or recreational resources shall forfeit the right to bid on future state park concession contracts to the extent authorized by federal law.
- In the event that a current or former concessionaire files a federal or state trademark or service mark application for a 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 such marks, the concessionaire shall be responsible for the State’s attorneys fees, costs, and expenses associated with that opposition or cancellation.
- Provides that the bill shall not be construed to impact a contracting party’s valid trademark rights that were held before the concession contract was awarded.
- Defines “best responsible bidder” to also include a bidder who will operate a state park concession, as provided, in a manner that protects the state’s trademark and service marks rights to the names associated with state park venues and historical, cultural, and recreational resources. A bidder who makes a legal claim or assertion to have a trademark interest in the name or names associated with a state park venue is not a best responsible bidder.
- Makes various legislative findings and declarations regarding the public interest and historical significance served by national, state and regional parks, including Yosemite National Park and facilities therein. States further legislative findings and declarations regarding California state parks held in public trust for the people of California, and that a legal claim by an individual to a trademark right in a name or names associated with a venue within a state park derogates the interests of California and is indicative of the individual's lack of fitness to serve as a steward of state parks. Finds and declares that an agreement entered into by any California state agency that compromises the interests of Californians is "ultra vires" and therefore beyond that agency's legal authority to enter.
EXISTING LAW:
- Under the United States Constitution, provides that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts. (U.S. Const., art. I, § 10.)
- Under the United States Constitution, provides that no state shall deprive any person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend.)
- Allows the Department of Parks and Recreation to enter into contracts for the construction, maintenance, and operation of concessions within units of the state park system, as provided. (Public Resources Code Section 5080.03 et seq. Unless otherwise stated, all further statutory references are to the Public Resources Code.)
- States that concessions shall not be entered into solely for their revenue producing potential. (Ibid.)
- Requires all contracts authorizing occupancy of any portion of the state park system for a period of more than two years be awarded to the best responsible bidder. (Section 5080.05.)
- Defines “best responsible bidder” to mean the bidder, as determined by specific standards established by the department, which, as determined by the department, will operate the concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, and (3) in the best interests of the state and public. (Ibid.)
- Provides that in any contract authorizing occupancy by the concessionaire for a period of more than two years of any portion of the state park system, the department shall prepare an invitation to bid, as specified. (Section 5080.06.)
- Requires the Department to provide public notice to bidders on all proposed contracts authorizing the occupancy of property in the state park system for a period of more than two years as specified. (Section 5080.07.)
- Allows the director to solicit bids, as provided, from out-of-state bidders if the public interest would be best served by the solicitation. (Ibid.)
- Requires all concession contracts, as specified, to include certain contractual provisions. (Section 5080.18.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Earlier this year, the United States National Park Service – the federal agency that manages all of the nation’s parks – decided that The Ahwahnee Hotel and other Yosemite National Park landmarks would be renamed due to a legal trademark dispute. (Therolf, Yosemite’s Famous Ahwahnee Hotel to Change Name in Trademark Dispute, L.A. Times (Jan. 14, 2016).) It seems safe to say that when this news broke, Californians and people across the globe were upset. As reported by the Los Angeles Times, 24-year-old Julie Mastrine said: “Yosemite is an iconic public asset. Its names exist in people’s hearts. It’s preposterous that anyone can claim to own them.” (Ibid.)
Background on the Yosemite legal dispute. The legal dispute between Delaware North Company and the National Park Service has been well-publicized; indeed, some of the facts are undisputed. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015, the National Park Service rebid the expiring contract and awarded a new 15-year concession contract to Aramark, who was the successful bidder. After the National Park Service awarded the new contract, Delaware North Company sued the National Park Service for breach of contract and has asserted compensation for various trademarks associated with Yosemite National Park.
Briefly setting aside the debate of whether anyone should be able to lay claim to the names and icons of our national parks, it is still unclear whether Delaware North Company actually has legitimate property interests in the trademarks associated with Yosemite Park.
Delaware North’s federal complaint suggests it received its rights from the previous concessionaire, The Curry Company. In a federal complaint lodged with the United States Court of Federal Claims, Delaware North Company alleges that it acquired the trademarks and intellectual property rights from the prior concessionaire. (Complaint, DNC Parks & Resorts at Yosemite Inc., v. United States, No. 15-1034C (Ct.Cl. September 17, 2015) [herein, Complaint, supra].) Delaware North Company contends that prior to 1993, the Curry Company provided visitor services at Yosemite for more than 100 years. (Ibid.) The Curry Company built significant improvements in Yosemite with its own capital, including The Ahwahnee, Yosemite Lodge, and Curry Village. (Ibid.) The Curry Company developed and used registered and unregistered trademarks and servicemarks in its operations, including the Half-Dome logo design, “The Awhanee” hotel name and logo design, and “Go Climb A Rock.” (Ibid.) The Curry Company’s final concession contract included terms which provided that if there was a successor concessionaire, the Curry Company would be required to sell its possessory interest in its improvements, and all other property used or held for use in connect with its Yosemite operations. (Ibid.) Additionally, any successor concessionaire would be required to purchase the Curry Company’s possessory interests and other property for fair value. (Ibid.) And of course, that successor concessionaire was the Delaware North Company.
The United States’ Answer to the federal complaint does not dispute several of Delaware North’s allegations. In fact, in the Answer filed by the United States, the United States admits that the Curry Company registered trademarks, servicemarks, and logos in connection with its operation including the Half-Dome logo and “The Ahwahnee” hotel name. (Answer, DNC Parks & Resorts at Yosemite Inc., v. United States, No. 15-1034C (Ct.Cl. September 17, 2015) [herein, Answer, supra].) The United States also admits that the Curry Company was required to sell its possessory and property interests, and that the Delaware North Company was required to purchase those possessory and property interests. (Ibid.)
Although the litigation is still pending, if the Delaware North Company’s allegations are true, the legal dispute would seem to be more about the valuation of the trademark rights, and not on the ownership. In other words, as disagreeable as it is, the Delaware North Company might have actual and legitimate property interests in certain trademarks associated with Yosemite.
Author’s statement: Be that as it may, according to the author, the purpose of this bill is to prevent concessionaires from co-opting state landmarks. In support of the bill, the author writes:
The current concessionaire of Yosemite National Park has operated there since 1993 but recently lost the bid to renew their contract. In response, they claimed the names of several Yosemite landmarks as their intellectual property. Unable to resolve the dispute, the National Park Service has re-named such storied California venues as The Ahwahnee Hotel, Curry Village and the Wawona Hotel as part of this ongoing litigation.
AB 2249’s impact rests on the premise that a state park’s concessionaire’s business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward. California’s treasured heritage sites are a part of our state’s public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places.
Constitutional and legal issues: Given that some of the policy issues were discussed in the previous committee in Assembly Water, Parks, and Wildlife, this Committee’s primary focus is on the constitutional and legal issues confronting this bill.
As a starting point, the bill, as proposed to be amended, provides that commencing on January 1, 2017, a state park concession contract shall not provide the concessionaire with any trademark rights, or serve as a basis for any legal claim that the concessionaire has such rights. Additionally, this bill provides to the extent authorized by federal law, a bidder shall not be awarded with a state park concession contract if the bidder makes a legal claim or assertion to the state’s trademarks in the names associated with a state park venue, or a court has determined that the bidder made a legal claim to have a trademark in names associated with a state or federal park venue without reasonable cause and in bad faith.
As introduced, this bill did not provide a commencement date, which made the bill vulnerable to a number of legal questions, including whether the bill violated the federal Contract Clause, due process rights, and whether the bill amounted to an Ex Post Facto law. As proposed to be amended, this bill includes a prospective date which addresses many of those concerns.
Given the bill’s prospective date, the bill does not appear to implicate the Contract Clause. It is well-established that “the Contract Clause limits the power of the States to modify their own contracts as well as regulate those between private parties.” (United States Trust Co. v. New Jersey (1977) 431 U.S. 1, 17.) “When the state is a party, there is an additional risk that it will employ its sovereign powers to alter the settled terms of the contract. Although the temptation to secure by legislation what a state has failed to achieve through negotiation is great, the Contract Clause commands that states resist this temptation.” (RUI One Corp. v. City of Berkeley (9th Cir. 2004) 1137, 1158 (dis. opn. of Bybee, J.).) Because courts are particularly concerned about States interfering with contracts between the government and third parties, those contracts are reviewed under a higher level of scrutiny. (Matsuda v. City & County of Honolulu (9th Cir. 2007) 512 F.3d 1148, 1154-55.)
Given that this bill provides a prospective commencement date, this bill does not appear to implicate the Contract Clause. However, in light of this prospective application, the bill’s provision stating that the bill does not constitute a change in existing law is particularly confusing. To reduce this confusion, the author may wish to consider an amendment to remove the provision that states that subdivision (a) is a declaration of existing law.
Given the bill’s prospective date, the bill does not appear to trigger due process concerns associated with retroactivity. There is always a risk that retroactive legislation violates the Due Process Clause. Indeed, “retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions.” (United States v. Ubaldo-Figueroa (9th Cir. 2003) 347 F.3d 718, 727.) Given that this bill has been amended to apply prospectively, this bill does not appear to implicate due process concerns caused by retroactivity.
Given the bill’s prospective date, the bill does not appear to amount to an Ex Post Facto Law. The Ex Post Facto Clause prohibits the enactment of any law which is designed as a punishment for a past act (See Bae v. Shalala (7th Cir. 1994) 44 F.3d 489, 492). While a civil law does not generally implicate the ex post facto law, a civil sanction – like a permanent debarment, may implicate ex post facto concerns if the debarment can fairly be characterized as more than a deterrent, but as punishment or retribution. (Ibid.) Given that this bill has been amended to apply prospectively, this bill does not appear to amount to an Ex Post Facto Law.
Can a State Permanently Debar a Contractor from Bidding on Future Contracts? Under public contract law, debarment and suspension are sanctions that exclude an individual or entity from doing business with the government. Debarment from eligibility to bid on contracts may violate the due process clause of the federal Constitution depending on the level of debarment, and on the liberty and property interests of the contracting party. (Golden Day Sch. v. State Dep’t of Educ. (2000) 83 Cal.App.4th 694, 703.)
Permanent debarment is not unheard of. For example, the Genetic Drug Enforcement Act requires permanent debarment for any individual convicted of a federal felony for conduct relating to the development or approval of any drug project under the Federal Food, Drug, and Cosmetic Act. (Shalala, supra, at 490-491.) Generally, federal appellate courts have upheld permanent debarment as long as those measures serve nonpunitive and remedial goals. (Id. at 495.)
This bill, as proposed to be amended, provides that to the extent allowed by federal law, a bidder shall not be awarded with a state park concessions contract if: (1) the bidder asserts a trademark interest in the names associated with a state park venue or (2) a court has determined that the bidder made a legal claim to a trademark in names associated with a state or federal park venue, without reasonable cause and in bad faith.
While it is unclear whether asserting a trademark interest is parallel to a federal felony to permanently bar a contractor from bidding on a contract, this bill’s inclusion of “to the extent allowed by federal law” ensures that any forfeiture is consistent with federal due process rights. Indeed, if due process rights are implicated from a permanent debarment under the factual circumstances of this bill, a temporary debarment or suspension might be more acceptable under federal law. Of course, “to the extent allowed by federal law” does not provide specific details on how long a contractor could be barred. Accordingly, it appears that the Department of Parks and Recreation would likely need to determine what is an appropriate debarment period that does not violate federal law.
Contractors facing permanent debarment must be entitled to due process. It has been established that a prospective contractor has neither a liberty interest nor a property interest in receiving a government contract. (Golden Day Sch., supra at 704-706.) However, California law recognizes that a party who has been dealing with the government on an ongoing basis has a liberty interest in being considered for a contract. (Mednick v. State Dept. of Health Care Services (2009) 175 Cal.App.4th 631, 641-642, citing Marvin Lieblein, Inc. v. Shewry (2006) 137 Cal.App.4th 700, 720.) Accordingly, if the government determines that a contractor should be permanently denied from being able to bid on a contract, the contractor must be given some due process; at issue is what procedures are due.
To determine whether this particular administrative procedure is constitutionally sufficient, a court considers the Mathews three-part test: (1) whether the private interest will be affected by the official action; (2) whether there is a risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) whether the Government's interest would face significant fiscal and administrative burdens providing additional or substitute procedurals. (Mednick, supra, at p. 644 (citing Mathews v. Eldridge (1976) 424 U.S. 319, 335.)
Given that several courts have determined that debarment amounts to a significant private interest, a contractor facing debarment should be provided a significant level of due process. (Ibid.)
This bill appears to provide sufficient deference to the Department of Parks and Recreation to develop regulations that would provide constitutionally-sufficient procedures to satisfy the Mathews test. As proposed to be amended, this bill requires the department to establish procedures, by regulation, that provide a bidder who is denied an award, as specified, with written notice of that denial and an opportunity to rebut that denial in a formal hearing. While it is unclear whether the current procedures outlined under this bill (i.e. notice and formal opportunity to be heard) would be sufficient to satisfy the Mathews test, this bill seems to provide the Department sufficient deference to develop regulations to determine what is the appropriate amount of procedures that are due to a contractor facing permanent debarment.
As proposed to be amended, this bill takes steps to ensure that future state park concessionaires accept and know about the consequences of asserting state trademark interests. To ensure that concessionaires who enter into state park concession contracts accept and are aware of the consequences of asserting trademark rights to the names of a state park, this bill requires all state park concession contracts to include provisions about permanent debarment. Additionally, this bill requires all state park concession contracts to include a provision about attorneys fees, costs, and expenses associated with the State’s successful cancellation of trademark rights wrongfully asserted by a concessionaire.
To address concerns raised by existing concessionaires—like Candy Kitchen, this bill has been amended to ensure that it does not infringe on existing concessionaire’s valid trademark rights. In order to address concerns raised by current concessionaires who have valid trademarks rights, this bill, as proposed to be amended, clarifies that nothing in the bill shall be construed to impact a contracting party’s valid trademark rights that were held before the concession contract was awarded.
To ensure that responsible bidders will be good public stewards of our state parks, this bill requires responsible bidders to operate our concessions in a manner that protects the state’s trademarks and its historical, cultural, and recreational resources. Existing law provides that all state park concession contracts be awarded to the best responsible bidder. A best responsible bidder is defined as a bidder who, as determined by the department, will operate the state park concession (1) consistent with the contract, (2) in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, and (3) in the best interests of the state and public.
In order to re-emphasize this bill’s intent in protecting the state’s trademarks in the names of state park venues, this bill redefines “best responsible bidder” to also include that the bidder operate the concession in a manner that protects the state’s trademark and service mark rights to the names associated with state park venues and historical, cultural, and recreational resources. This bill also defines a bidder who makes a legal claim or assertion to have a trademark interest in the name or names associated with a state park venue is not a best responsible bidder.
ARGUMENTS IN SUPPORT: California State Parks Foundation (CSPF) supports this bill because it believes it is valuable to codify the Department of Parks and Recreation’s existing practice which prohibits concessionaires from trademarking state parks. CSPF writes:
California’s state parks and facilities, as well as the assets within state parks, are public trust resources and shouldn’t be trademarked, patented, or copyrighted for private purposes. We support the goal of AB 2249 to ensure that concession contracts entered into by the California Department of Parks and Recreation (DPR) do not allow for such private benefit to be taken from these public trust resources.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Professional Scientists
California Association of Recreation and Park Districts
California State Parks Foundation
Opposition
None on file
Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
ABPCA Bill Id:AB 2249 (
Author:Cooley) – As Introduced Ver:February 18, 2016
SUBJECT: State parks
SUMMARY: Prohibits a state park concession contract from providing a contracting party with, or serving as the basis for, a claim of a trademark right or other financial or ownership interest in the names associated with a state park venue. Specifically, this bill:
- States legislative findings and declarations regarding the public interest and historical significance served by national, state and regional parks, including Yosemite National Park and facilities therein. States further legislative findings and declarations regarding California state parks held in public trust for the people of California, and that a legal claim by an individual to a trademark right in a name or names associated with a venue within a state park derogates the interests of California and is indicative of the individual's lack of fitness to serve as a steward of state parks. Finds and declares that an agreement entered into by any California state agency that compromises the interests of Californians is "ultra vires" and therefore beyond that agency's legal authority to enter.
- Provides that a state park concession contract shall not provide the contracting party with, or serve as a basis for, any legal claim or assertion that the contracting party has a trademark or other financial or ownership interest in the name or names associated with a state park venue. Prohibits a bidder who makes a legal claim or assertion to have a trademark or other financial or ownership interest in such a name from being awarded a state park concession contract.
- Provides that a provision of a contract or other agreement that violates this prohibition shall be void and unenforceable.
EXISTING LAW:
- Authorizes DPR to establish rules and regulations for administration of properties in the state park system.
- Authorizes the Department of Parks & Recreation (DPR) to enter into contracts for the operation of concessions within units of the state park system. Requires, with specified exceptions, that concession contracts be awarded to the best responsible bidder. Sets out requirements for invitations for bids and bid submittals. Requires that contracts awarded pursuant to bid processes be approved by the Attorney General and the Department of General Services. Defines best responsible bidder as the bidder, as determined by specific standards established by the department, which, as determined by the department, will operate the concession consistent with the contract, in a manner fully compatible with, and complimentary to, the characteristics, features, and theme of the unit in which the concession will be operated, and in the best interests of the state and public.
- Alternatively, authorizes DPR, if the director of DPR determines it is in the best interests of the state, and after giving notice to the State Park & Recreation Commission, to award concession contracts to the best responsible person or entity submitting a proposal for a concession contract in response to a request for proposal. Defines best responsible person or entity as the person or entity that, as determined by specific standards established by the department, will operate the concession in the best interests of the state and the public.
- Requires any proposed concession contract that is expected to involve a total investment or annual gross sales of over $1,000,000 to be reviewed by the State Park & Recreation Commission, and submitted to the Joint Legislative Budget Committee for review at least 30 days prior to advertising for bids.
- Authorizes DPR to accept donations of funds or services in support of state parks, and to authorize the erection of an appropriate sign in recognition of a donation or sponsorship.
FISCAL EFFECT: Unknown
COMMENTS: This bill prohibits a state park concession contract for being construed to provide, or serving as the basis for, any claim of a trademark right in the name or names associated with a state park.
- Author's Statement: To prevent concessionaires from co-opting state landmarks, this bill puts forth three key ideas. First, this bill clarifies that an awarded food or lodging contract does not entitle a company to any legal claim of a trademark. No State Park official has the authority to agree to contractual terms that fail to safeguard the interests of California by offering a public trademark to a private corporation. Second, this bill specifically prohibits concessionaires from claiming ownership of a name associated with a California State Park. Finally, a concessionaire who asserts a claim of this type will no longer be viewed as a fit partner to contract with California State Parks. This bill permanently disqualifies a concessionaire from consideration for future contracts if they attempt a trademark claim. This bill's impact rests on the premise that a state park concessionaire's business is incompatible with a trademark or claim of ownership of park facilities which they have been entrusted with as a steward, but which still remain the property of the state. The author asserts that California's treasured heritage sites are a part of our state's public trust and it is self-evident that the state would never approve giving away the inherent value associated with those historic names and places.
- Background: This bill was sparked by a recent, well publicized, contract dispute involving Yosemite National Park. For the last 23 years, the Delaware North Company was the concessionaire operating visitor services and facilities within Yosemite National Park under a contract with the National Park Service. In 2015 the National Park Service rebid the contract and awarded a new 15 year concession contract to Aramark who was the successful bidder. After Delaware North lost the contract they sued the federal government for "breach of an implied contract" and other alleged bidding issues. They also asserted they were entitled to compensation for various trademarks and other intellectual property rights they had registered while they were the concessionaire in Yosemite. According to Delaware North, some of the trademark registrations were acquired by Delaware North from the Curry Company, the previous concessionaire, along with other Curry Company assets, and some were newly registered by Delaware North after they became the concessionaire. Among the names they claim to have a registered trademark property right for are "The Ahwahnee," "Yosemite Lodge," "Wawona," "Curry Village," and "Badger Pass," all of which are well known venues within Yosemite National Park. The Delaware North Company even claims to have a registered trademark for the name "Yosemite National Park." Delaware North has asserted that it is entitled to compensation for the value of its trademarks and other intellectual property rights in Yosemite National Park which it claims is valued at $51 million. The National Park Service has countered that the value is closer to $1.63 million, and alleges that many of the trademarks were registered without its knowledge or consent. The National Park Service has also filed a petition with the United States Patent and Trademark Office seeking to cancel the disputed trademarks. While the litigation is pending, the National Park Service has started removing the contested names from various signs, bridges, and other places within the park, and renaming the venues. For example, the historic Ahwahnee Hotel, which is listed on the National Register of Historic Places as a National Historic Landmark, is being renamed "the Majestic Yosemite Hotel." The dispute has outraged many park visitors who see the trademark claims as violating the public trust and the deeply held understanding that the national parks are national treasures that belong collectively to the people of the country.
In order to prevent a similar situation from occurring in California state parks, this bill would prohibit a state park concession contract from providing, or forming the basis for providing, a trademark or other financial or ownership interest in the name or names associated with a state park. This bill would also make any bidder who asserts such a legal claim ineligible to be awarded a contract.
The contract used by DPR for state park concessions in California expressly prohibits a concessionaire from obtaining a trademark claim in any name or logo associated with a state park, and provides that any such trademark that might be created during the period of the contract shall continue in State Park's exclusive ownership upon termination of the Contract. While this is the current practice at DPR, this bill would ensure that such protections continue to apply in the future. - Potential Issues: This bill may raise a couple potential legal issues worthy of consideration. The Contract Clause of the federal Constitution (Article 1, Section 10, Clause 1) prohibits states from enacting any law that retroactively impairs contract rights. As a general rule of statutory construction, legislation is deemed to be prospective and not retroactive, unless expressly so stated. Assuming that is the case here and the author does not intend for this bill to apply to existing concession contracts, except in cases where those contracts may be renewed or amended in the future, this bill may not raise potential impairment of contract issues. However, if the intent is for this bill to apply to existing contracts, an argument could be made that it could raise potential concerns over possible impairment of existing contract rights. As a counter argument to such a claim, this bill's legislative findings and declarations note that an agreement entered into by any California state agency that compromises the interests of Californians is "ultra vires" and therefore beyond the agency's legal authority to enter. "Ultra vires" is a legal doctrine of law that holds that if a corporation enters into a contract that is beyond the scope of its corporate powers, the contract is illegal. Thus the argument would be that a law that modifies such an illegal contract would not constitute an unconstitutional impairment of contract.
As stated above, the concession contract currently used by DPR in California already prohibits a concessionaire from obtaining a trademark right in any name associated with a state park, and provides that any trademark that may be developed during the term of a state park concession contract shall continue in State Park's exclusive ownership upon termination of the contract. Therefore, depending on how long this contract language has been in use, there may not be existing contracts in California under which such claims could be raised.
The second potential issue is with regard to subdivision (b) of section 5080.22. That section makes a bidder who makes a legal claim or assertion to have a trademark or other financial or ownership interest in a name or names associated with a state park venue ineligible to be awarded a concession contract. To the extent that a bidder may have a legitimate legal claim, that section could be interpreted as penalizing a bidder for asserting a right that they are legally entitled to assert.
It should be noted that this bill is double-referred to the Assembly Judiciary Committee which can further analyze these or any other potential legal issues that might be relevant.
- Double-referral: This bill is double-referred to the Assembly Judiciary Committee where it is scheduled to be heard next.
- Prior and related Legislation: AB 549 (Committee on Water, Parks & Wildlife), Chapter 559, Statutes of 2015, amended the process for approval of concession contracts to require a 30 day notice to the Joint Legislative Budget Committee and appropriate fiscal and policy committees of the Legislature prior to soliciting bids or approving an agreement.
SCR 79 (McGuire), Chapter 179, Resolutions of 2015, requested the State Park and Recreation Commission, working with DPR, to rename Annadel State Park in the County of Sonoma as Trione Annadel State Park and, upon the receipt of donations from non-state sources sufficient to cover the cost, install new signs reflecting the name change. - Support Arguments: Supporters express full support for protecting California's treasured heritage park locales and urge that allowing private concessionaires to own the trademark to such sites should not be permitted. Insurance Commissioner Dave Jones in support of this bill similarly emphasizes that private trademarks within the national and state parks are inconsistent with public ownership of the park. He quotes Franklin D. Roosevelt who once said "There is nothing so American as our national parks…The fundamental idea behind the parks…is that country belongs to the people,…that it is in process of making for the enrichment of the lives of us all." This bill is necessary to protect and preserve the rich history of California for future generations.
- Opposition Arguments: None received.
- Suggested Amendments: In addition to the code sections cited in this bill as the source of authority for DPR to enter into concession contracts, DPR may also award a concession contract pursuant to Public Resources Code Section 5080.23. In order to fully accomplish the author's intent, this bill should be amended to reference that section, as follows:
Amend Page 3, line 10 to read: "Section 5080.05,or5080.16, or 5080.23 shall not be construed to provide the contracting party…"
Amend Page 3, line 17 to read: "5080.05,or5080.16, or 5080.23."
Amend Page 3, line 19-20 to read: "pursuant to Section 5080.05,or5080.16, or 5080.23 that violates subdivision (a) shall be void and unenforceable."
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Recreation and Park Districts
California State Parks Foundation
Insurance Commissioner Dave Jones
Sierra Club California
Trust for Public Lands
Opposition
None on file.
Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096
Discussed in Hearing
6MIN
Assembly Floor
3MIN
Senate Floor
4MIN
Senate Standing Committee on Judiciary
1MIN
Assembly Floor
4MIN
Assembly Standing Committee on Appropriations
4MIN
Assembly Standing Committee on Water, Parks, and Wildlife
Bill Co-Author(s):
