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HomeMy WebLinkAbout2020-01-28; City Council; ; State of CA Department of Parks & Recreation Request for Proposals for Fitness & Recreation Concession at Carlsbad/South Carlsbad State Beach~ CITY COUNCIL ~ Staff Report Meeting Date To: From: Staff Contact: Jan. 28,2020 Mayor and City Council Scott Chadwick, city manager Kyle Lancaster, parks & recreation director kyle.lancaster@carlsbadca.gov or 760-434-2941 CA Review .fh.,(;;,- Subject State of CA Department of Parks & Recreation Request for Proposals for Fitness & Recreation Concession at Carlsbad/South Carlsbad State Beach Recommended Action Receive an informational report and provide direction on whether to prepare a responsive bid should the State of California Department of Parks & Recreation re-advertise a Request for Proposals for Fitness & Recreation Concession at Carlsbad State Beach and South Carlsbad State Beaches, and provide any other direction as appropriate. Executive Summary On Jan. 9, 2020, the State of California Department of Parks & Recreation (State Parks) staff issued a public notice announcing a 'Concession Opportunity at Carlsbad State Beach and South Carlsbad State Beaches' [Exhibit 1]. On Jan. 14, 2020, at the regular City Council Meeting, public comment was received from members of North Coast Beach Volleyball (NCBV) regarding the State Parks Request for Proposals (RFP) for Fitness & Recreation Concession at the subject beaches [Exhibit 2]. After a brief discussion, the City Council approved a minute motion for the State Parks RFP to be bought before the City Council for exploration of a city bid. On Jan. 21, 2020 State Parks staff emailed a public notice to city staff announcing 'Cancellation of Concession Opportunity at Carlsbad and South Carlsbad State Beaches' [Exhibit 3] and a 'Notice to Interested Parties' [Exhibit 4] regarding the State Parks RFP. On Jan. 22, 2020, city staff attempted telephone and email contact with State Parks staff to inquire as to the timing and process for working with the community on this matter. As of Jan. 23, 2020, city staff had not yet received the requested information. Discussion On Jan. 9, 2020, State Parks staff issued a public notice announcing a 'Concession Opportunity at Carlsbad State Beach and South Carlsoad State Beaches'. On the same day, State Parks staff also emailed the public notice to city staff. The notice reads in part: State Parks is accepting proposals for a concession contract for the operation of a fitness and recreation concession at Carlsbad State Beach {SB} and South Carlsbad SB in San Diego County starting today, January 9, through March 19, 2020. Interested parties can Jan. 28, 2020 Item #19 Page 1 of 107 attend the pre-proposal meeting scheduled at 6 p.m. on Thursday, January 23, at Hilton Garden Inn Carlsbad Beach in Carlsbad to learn more about the concession opportunity. The Request for Proposals {RFP) is being issued for a 5-year concession contract with the State's option to extend an additional 5-years for the operation of fitness and recreation concession at Carlsbad SB and South Carlsbad SB. Proposals must be delivered in person or by mail no later than 2 p.m. on Thursday, March 19, 2020 .... On Jan. 14, 2020, at the regular City Council Meeting, public comment was received from members of NCBV regarding the State Parks RFP. Members of NCBV stated concerns over the expanded scope of the State Parks RFP, and dissatisfaction with the operations of the current concessionaire under contract with State Parks for the Carlsbad State Beach. The NCBV members expressed opposition to State Parks staff's action with respect to the RFP and requested the City Council also oppose that action. As a secondary option, the NCBV members requested the City Council consider directing city staff to prepare a bid in response to the State Parks RFP. After a brief discussion, the City Council approved a minute motion for the State Parks RFP to be bought before the City Council for exploration of a city bid. On Jan. 21, 2020 State Parks staff emailed a public notice to city staff announcing 'Cancellation of Concession Opportunity at Carlsbad and South Carlsbad State Beaches'. The notice reads in part: State Parks today announced the cancellation of the request for proposals for a fitness and recreation concession at Carlsbad and South Carlsbad state beaches {#P18CA030}. The pre- proposal meeting scheduled for this Thursday, January 23 at the Hilton Garden Inn Carlsbad Beach in Carlsbad has also been canceled. It is in the best interest of the state that any proposals for visitor services at these state beaches be placed on hold at this time. San Diego Coast state parks provide visitors with a variety of amenities such as surfing, camping, wildlife viewing, swimming and other recreational activities. Within Carlsbad and South Carlsbad state beaches, there are three separate volleyball areas. RFP #P18CA303 included the management of the three volleyball court locations and scheduling yoga, fitness boot camps and other personal fitness lessons on the beach. The volleyball courts at Warm Waters and Pine Street have been managed under a concession agreement with the Carlsbad Village Athletic Club since December 2012. The contract expired two years later at which time the contract switched to a month-to-month agreement. The courts at 5. Ponto have been managed by State Parks through its special event office. On Jan. 21, 2020, State Parks also issued a 'Notice to Interested Parties' regarding the State Parks RFP. The notice reads in part: In the best interest of the State, the Request for Proposals (RFP) #P18CA030 to provide a Fitness and Recreation Concession at Carlsbad and South Carlsbad State Beaches has been cancelled. The Pre-Proposal Meeting scheduled at 6 p.m. on January 23, 2020, at the Hilton Garden Inn-Carlsbad Beach has also been cancelled. The Department will work with the Jan. 28, 2020 Item #19 Page 2 of 107 community to determine how to best meet the needs of the parks and visitors. Please check the Department's website for any future updates. On Jan. 22, 2020, city staff attempted telephone and email contact with State Parks staff to inquire about the timing and process for working with the community on this matter. As of Jan. 23, 2020, city staff had not yet received the requested information. Fiscal Analysis There is no direct fiscal impact associated with the receipt of this staff report. If State Parks were to re-issue the RFP, and the City Council were to direct city staff to prepare a responsive bid, an estimated 80 hours of staff time would be expended through the end of the bidding process. Next Steps City staff will act in accordance with the City Council's direction. Environmental Evaluation (CEQA) Pursuant to Public Resources Code Section 21065, receiving this report does not constitute a "project" within the meaning of the California Environmental Quality Act (CEQA) in that it has no potential to cause either a direct physical change in the environment, or reasonably foreseeable indirect change in the environment, and therefore does not require environmental review. Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the meeting date and time. Exhibits 1. State Parks public notice on Concession Opportunity at Carlsbad/South Carlsbad State Beach 2. State Parks RFP for Fitness & Recreation Concession at Carlsbad/South Carlsbad State Beach 3. State Parks public notice on Cancellation of Carlsbad Concession Opportunity 4. State Parks Notice to Interested Parties on Cancellation of Carlsbad Concession Opportunity Jan. 28, 2020 Item #19 Page 3 of 107 cultural resources, and creating opportunities for high-quality outdoor recreation . Learn more at www.parks.ca.gov. Facebook I Twitter I lnstagram I YouTube I Blog I Periscope I Flickr 2 Jan. 28, 2020 Item #19 Page 5 of 107 NOTICE OF REQUEST FOR PROPOSALS Notice is hereby given that the California Department of Parks and Recreation (State) is now accepting proposals for the concession operation described below. Concession Name: Operation Category & Type Fitness & Various Recreation Operation Description Coordinate Fitness Activities on the beach Park Unit: Carlsbad State Beach and South Carlsbad State Beach Proposal Closing Time & Date: March 19, 2020 at 2:00 PM Proppsal Submission Location: California Department of Parks and Recreation Partnerships Office 1416 Ninth Street, Room 1431 Sacramento, CA 95814 Contract Term: Five (5) years with the State's option to extend for an additional five (5) years Annual Minimum Rent Bid: Three thousand dollars ($3,000) or twelve percent (1i2°/o) of Gross Sales, whichever is greater Proposal Bond (due at time of Five hundred dollars ($500) proposal submission): Performance Bond (due at time of One-third (1/3) of the minimum annual rent bid Contract execution): Proposer's Minimum Years of 3 years Relevant Experience: Pre-Proposal Meeting and Tour of January 23, 2020 at 6:00 PM Concession Site: For more information related to this RFP please contact Kellie Weikle at (916) 651-7678 or kellie.weikle@parks.ca.gov. UJJw~J: Lisa Ann L. Mangat / I Director U Jan. 28, 2020 Item #19 Page 7 of 107 TABLE OF CONTENTS NOTICE OF REQUEST FOR PROPOSALS .................................................................. II SECTION 1 -PROJECT SUMMARY .............................................................................. 1 1.1 GOAL & OBJECTIVES ......................................................................................... 1 Department Mission ............... : .................................................... , ............................ 1 Park Mission ............................................................................................................. 1 Goal of this Request for Proposals (RFP) ................................................................ 1 Objectives of this RFP .............................................................................................. 1 1.2 GENERAL INFORMATION .................................................................................. 1 Site Description ........................................................................................................ 1 Current Concession Operation ................................................................................. 2 Future Site Plans and Business Development Objectives : ...................................... 2 1.3 CONCESSION CONTRACT SUMMARY ............................................................. 2 SECTION 2 -THE RFP PROCESS ................................................................................ 5 2.1 PROPOSAL PROCESS ....................................................................................... 5 Tentative Proposal Dates ......................................................................................... 5 Pre-Proposal Meeting .............................................................................................. 5 Letter of Intent to Bid and RFP Content Questions .................................................. 5 Proposal Bond .......................................................................................................... 6 Proposal Submission ............................................................................................... 6 Proposal Format & Content ...................................................................................... 6 Confidentiality of Proposals ...................................................................................... 7 Withdrawal of Proposals .......................................................................................... 7 2.2 EVALUATION PROCESS .................................................................................... 7 Verification of Proposal Information ......................................................................... 7 State's Right to Reject Proposals, Waive Defects and Requirements ...................... 8 Supplemental Information ........................................................................................ 8 · Proposal Evaluation .............................................. : .................................................. 8 Concession Contract Award Board .......................................................................... 8 Concession Contract Award ..................................................................................... 8 Protest of Award ....................................................................................................... 9 . 2.3 CONTRACT EXECUTION .................................................................................. 10 Preparation of Contract ............................................................. : ............................ 10 Performance Bond and Insurance .......................................................................... 10 Failure to Sign/Deliver Contract ............................................................................. 10 SECTION 3 -THE PROPOSAL .................................................................................... 11 3.1 INSTRUCTIONS FOR THE CONCESSION PROPOSAL .................................. 11 /. PROPOSER INFORMATION ............................................................................ 11 II. THE PROPOSAL .............................................................................................. 13 Ill. FINANCIAL INFORMATION ... : ......................................................................... 16 IV. CERT/FICA T/ON ANO AUTHORIZATION ........................................................ 18 V. PRI_VACY NOTICE ............................................... , ............................................. 18 3.2 PROPOSAL EVALUATION CRITERIA .............................................................. 19 3.3 PROPOSAL EVALUATION SHEET ................................................................... 21 3.4 CONCESSION PROPOSAL, DPR 398 .............................................................. 23 SAMPLE CONCESSION CONTRACT ......................................................................... 25 Jan. 28, 2020 Item #19 Page 8 of 107 SECTION 1 -PROJECT SUMMARY 1.1 GOAL & OBJECTIVES Department Mission The California Department of Parks and Recreation's mission is to provide for the health, inspiration, and education of the people of California by helping to preserve the state's extraordinary biological diversity, protecting its most valued natural and cultural resources, and creating opportunities for high-quality outdoor recreation. Park Mission The purpose of Carlsbad State Beach (SB) and South Carlsbad SB is to make available to the people, for their benefit and enjoyment forever, the scenic, natural, cultural, and recreational resources of the ocean, beach and related uplands. The function of the California Department of Parks and Recreation at Carlsbad SB and South Carlsbad SB shall be to preserve and protect public opportunities for ocean and beach-oriented recreation in a high-quality environment. A natural setting for recreational activities shall be preserved. Goal of this Request for Proposals (RFP) The goal of this RFP is to award a concession contract to an individual or business entity to develop, operate, and maintain the fitness and recreation concession to enhance the park visitor experience at Carlsbad SB and South Carlsbad SB. Objectives of this RFP • Develop and operate a fitness and recreation concession • Improve the concession premises, including upgrades to ensure full compliance with the Americans with Disabilities Act (ADA) and all State and Local Government accessibility regulations; • Provide the park visitor with high-quality fitness and outdoor recreation opportunities at reasonable prices; • Provide reasonable financial compensation to support the State, including the park operations and interpretive activities 1.2 GENERAL INFORMATION Site Description Carlsbad State Beach has 7,119 waterfront feet and South Carlsbad State Beach has 17,875 waterfront feet. Surfing, swimming, volleyball, yoga, walking, jogging and sunbathing are all popular activities at these two beaches. Camping is available at the South Carlsbad SB Campground. This concession is limited to specific areas including an area at South Ponto, South Carlsbad SB, and two areas at Carlsbad SB. Please refer to Exhibit A in the Sample Contract to review the premises. Carlsbad SB and South Carlsbad SB have three separate areas for organized volleyball court use. There are four (4) courts at Pine Street, Carlsbad SB, four (4) courts at Warm Waters, Carlsbad SB; and five (5) courts at South Ponto, South Carlsbad SB. 1 Jan. 28, 2020 Item #19 Page 9 of 107 The eight (8) courts located along Carlsbad SB (Pine St. and Warm Waters) are currently operated under a month-to-month concession contract agreement. These courts are the property of the Concessionaire. The courts located at South Ponto, South Carlsbad SB, are not currently managed, except for special event permits through the State Parks office. The courts were installed by a volunteer group and are currently maintained by that group. The prior concessionaire coordinated tournaments and special events. This contract includes day-to-day reservations but all tournaments and special events will be permitted through the Special Events office. Current Concession Operation The park visitation, gross sales and rent to state for the last five (5) years as reported by the current concessionaire: Carlsbad SB South Carlsbad SB Fiscal Year Park Visitation Park Visitation Gross Recei~ts Rent to State 2014/2015 2,181,245 1,427,384 $39,463 $3,978 2015/2016 1,813,086 1,232,989 $55,515 $5,551 2016/2017 1,960,247 1,349,271 $48,030 $4,803 2017/2018 1,739,227 1,220,545 $62,602 $6,260 2018/2019 1,753,125 1,123,222 $87,059 $8,706 NOTE: The preceding is for general information only; the State does not guarantee its accuracy. It is recommended that proposers personally investigate the premises and park environs. Future Site Plans and Business Development Objectives This concession opportunity will have exclusive rights to book events in the specified areas outlined in Sample Contract Exhibit A. Any aquatic event or any recreational activity with an aquatic element will be booked through State Parks Special Event Staff. 1.3 CONCESSION CONTRACT SUMMARY This five (5) year concession contract with the State's option to extend an additional five (5) years will provide for the operation of a fitness and recreation concession. The intent of the concession contract is to provide the public with high-quality, reasonably priced beach activities in an authentic manner and atmosphere that enhances the visitor's experience and the interpretive, natural, and cultural resources of the park. The following is a summary of important concession contract provisions. It is critical for proposers to understand all the terms and conditions of the Sample Concession Contract included herein. If a proposer is awarded a concession contract, the successful proposer has 30 days to review and sign the awarded concession contract. The successful proposer shall be expected to accept the provisions of the Sample Concession Contract as written. If necessary, minor clarifications, approved by State staff counsel, the Department of General Services, and the Attorney General, may be made prior to the concession contract execution. 2 Jan. 28, 2020 Item #19 Page 10 of 107 At a minimum, the successful proposer will be required to: 1. Schedule and manage public outdoor non-aquatic fitness opportunities on the beach including yoga, Pilates, core training, personal training sessions, calisthenics, or activities such as "boot camps", mixed martial arts, or other non-aquatic fitness activities approved in advance by State in writing. In addition, at Frazee, Warm Waters and S. Ponto, schedule and manage volleyball play and volleyball instruction. One volleyball court will be available at all times for no-fee public use and clearly marked as such as approved by State in writing. · 2. Volleyball 'club' play organized and managed by concessionaire will not be permitted as part of this concession agreement. 3. Maintain website with current pricing for activity, online reservation option and updated schedules. Allow for real-time reservations. 4. No storage will be permitted on the beach, with the exception of volleyball poles and volleyball nets. Concessionaire will haul in, set up, take down and haul away any necessary equipment to support fitness activities at the beginning and end of each day's session. · 5. Concessionaire shall provide evidence and maintain current certificates in First Aid, CPR and have a cell phone programmed to State Parks Dispatch in case of emergency. Premises group ratio of one (1) First Aid/CPR instructor to twenty (20) participants 18 and older; and one (1) First Aid/ CPR instructor to ten (10) _ participants for age groups under 18. 6. The concessionaire, any concession employee, volunteer or paid, or sub- concessionaire shall have a criminal background check paid by concessionaire. The District Superintendent or Designee shall be provided a list of employees, sub- concessionaires or volunteers on a continuous basis, along with completed background documents and proof of CPR/First Aid certification prior to that person working on the premises. 7. No stairway or beach access will be used for fitness activities. 8. Pay as annual rent the amount presented in the proposal, which, at a minimum, shall be the greater of three thousand dollars ($3,000) or percent (12% ), whichever is greater 9. Implement the Operation Plan and Facility Plan as described in the RFP, Section 3, the Proposal that clearly demonstrates the proposer's plan to provide accessible services and facilities that comply with Federal, State, and Local accessibility guidelines. The plans will become exhibits of the final concession contract subject to State review and approval. 10. Maintain the premises, facilities, furnishings, and equipment in good condition in accordance with State standards and concession contract provisions. 3 Jan. 28, 2020 Item #19 Page 11 of 107 11. Provide a continuing Performance Bond in the amount of one-third (1/3) the minimum annual rent bid, with CPI adjustments. 12. Pay for all taxes applicable to the operation of the concession, including possessory interest taxes, and all utility services as required by the concession contract. 13. Provide and maintain valid insurance as required by the concession contract, including but not limited to: commercial general liability, worker's comp, and property insurance. 14. Obtain all necessary licenses, permits, and approvals as set forth in the concession contract and abide by all applicable health, safety, and environmental codes and regulations. 15. Comply with the letter and spirit of current and subsequent guidelines or plans, including Park Unit General Plan amendments or updates, management and interpretive plans, historic structure reports, and others that may apply. 16. Demonstrate compliance with labor laws as specified in the RFP. The successful proposer will not: 1. Provide sales or services considered. inappropriate, deemed objectionable, or denied by the State. 2. Charge prices in excess of those approved by the State. 3. Promote or participate in activities that are incompatible with the rules, regulations, guidelines, or the mission of the State. Note: This concession contract summary is for general information only. Terms and conditions are set forth in detail in the Sample Concession Contract. 4 Jan. 28, 2020 Item #19 Page 12 of 107 SECTION 2 -THE RFP PROCESS 2.1 PROPOSAL PROCESS Tentative Proposal Dates January 9, 2020 .................... Opening Date -Publication of the RFP January 23, 2020 .................. Pre-Proposal Meeting and tour February 6, 2020 ................... Last day for proposers to submit Letter of Intent to Bid and RFP Questions , February 20, 2020 ................. Answers -DPR written responses to questions March 19, 2020 ..................... Closing Date -Deadline for proposal submission · April 2020 .............................. Investigation and evaluation of Proposals May 2020 .............................. Notification of "Intent to Award Contract" May 2020 .............................. Award, preparation, and execution of contract June 2020 ............................. 5 + 5 year contract begins Note: This schedule does not consider unforeseen factors that could impact the timing of the project. It is the intent of the State to keep proposers apprised of changes in the schedule as they occur. Should the award of the concession contract be protested, additional time will be required to resolve the matter. Pre-Proposal Meeting , It is strongly recommended that the proposer or designated representative attend the pre-proposal meeting at 6:00 PM on January 23, 2020 at the Hilton Garden Inn- Carlsbad Beach, 6450 Carlsbad Blvd., Carlsbad, CA 92011. The meeting provides an equitable forum for all proposers to: • Meet local State staff; • Learn about the RFP process, including procedures for questions and answers, proposal submission, and concession contract award; • Inspect the concession site and receive information on the park and facility history and State plans for the park and the concession; • Review the RFP document. Letter of Intent to Bid and RFP Content Questions All proposers must submit a Letter of Intent to Bid as well as any questions related to the content of the RFP no later than 5:00 P.M. on February 6, 2020. Proposers who submit a proposal but fail to submit a Letter of Intent to Bid will be disqualified. To ensure fair competition, all proposers will receive the same information and materials; no telephone or personal inquiries about this RFP will be answered. The Letter of Intent to Bid and RFP content questions shall be submitted in writing to the State by mail , email or fax at the contact information listed below. A written compilation of all questions and answers, and any RFP errata, will be posted on Cal e-Procure at www.caleprocure.ca.gov (or emailed/mailed upon request). Questions will be answered as clearly and completely as possible without jeopardizing the competitiveness of the 5 Jan. 28, 2020 Item #19 Page 13 of 107 proposals. Proposers should send their Letter of Intent to Bid and RFP questions addressed to: California Department of Parks and Recreation, Partnerships Division 1416 Ninth Street, Room 1442-7 Sacramento, CA 95814 Attn: Kellie Weikle Fax: (916) 657-1856 Email: kellie.weikle@parks.ca.gov . Proposal Bond Proposals must be accompanied by a Proposal Bond or cashier's check payable to the State of California, Department of Parks and Recreation, in the amount of five-hundred dollars ($500). By submitting a proposal bond the proposer agrees that the bond may be cashed and retained by the State. If a cashier's check is submitted it will be cashed by the State. In the event the proposer fails to execute the concession contract, the bond or cashier's check will be retained by the State. Further, by submitting a proposal,· proposer agrees that the State will suffer costs and damages not contemplated otherwise should proposer be awarded the concession contract but fail to execute and proceed with the concession contract, the exact amount of which will be difficult to ascertain. Accordingly, it is agreed that such retained sums shall not be deemed a penalty, but, in lieu of actual damages, shall represent a fair and reasonable estimate of damages to the State for failure of the proposer to execute and proceed with the concession contract upon notification of award by the State. Bonds will be returned to all proposers once the concession contract is executed with the best responsible proposer. Proposal Submission The proposal, including the Proposal Bond, must be received by 2:00 P.M. on March 19, 2020 at: California Department of Parks and Recreation, Partnerships Division 1416 Ninth Street, Room 1431 Sacramento, CA 95814 Proposal Format & Content The proposal package must be sealed and clearly marked on the outside with "RFP #P18CA030 for Fitness and Recreation Concession at Carlsbad and South Carlsbad State Beaches". Please submit one ( 1) original plus seven (7) copies of the proposal in 8.5" x 11" three-ring binders. All material should be presented in an 8.5" x 11" portrait format with tabs for each section. Larger formatted graphic exhibits are acceptable if folded to fit within the 8.5" x 11" three-ring binder. All proposals must be typed. Hand-written proposals (aside from conceptual drawings) will not be accepted. The original proposal binder must also include the following: • A complete Concession Proposer Questionnaire (DPR 398) Checklist • An electronic version of the DPR 398 and all supplemental information saved to an enclosed CD or USB in Microsoft Word or comparable format. 6 Jan. 28, 2020 Item #19 Page 14 of 107 Confidentiality of Proposals All proposals submitted to an RFP, which include the DPR 398 and applicable plans, are considered components of the "standard form of questionnaire" as references in Public Resources Code Section 5080.0B(a) and become the property of the State. The proposals are subject to the requirements of the California Public Records Act (California Government Code Section 6250 et. seq.). The proposer must clearly identify in writing, within the body of the proposal, all copyrighted material, trade secrets, or other proprietary information the proposer claims are exempt from disclosure under the Public Records Act, this includes denoting where the confidential material begins, ends, and the specific reason(s) for the exemption. Proposers claiming exemption must include the following statement in their proposal: The proposer agrees to indemnify and hold harmless the State, its officers, employees, and agents from any claims, liability or damages against the State, and to defend any action brought against the State for proposer's refusal to disclose such material, trade secrets, or other proprietary information to any party. Proposer acknowledges and understands that State may release information in the proposal claimed by proposer to be exempt from disclosure under the Public Records Act, and that proposer waives any claims against the State for this release. Failure of a proposer to include this statement and/or identify in writing the claimed exempt material shall be deemed a waiver of any exemption from disclosure under the Public Records Act. In the event of a protest to State's Notice of Intent to Award a concession contract, State may, in its sole discretion, release any or all of the contents of the proposals to the proposers for purposes of hearing and adjudicating the protest. Requests by proposers to review the winning proposals will be allowed, with the exception of financial statements, for purposes of protesting the Notice of Intent to Award and only within the 10 days following said Notice. Once a fully executed concession contract is signed and approved by the State the contract is open to public inspection. Pursuant to Public Resources Code Section 5080.0B(b), the proposal questionnaire and financial statements will not be open to public inspection unless they are to be referenced as a result of a civil action or criminal prosecution by the State. Withdrawal of Proposals Proposals may be withdrawn at any time prior to the proposal closing date and time provided that a written request executed by the proposer or his/her duly authorized representative for the withdrawal of such proposal is filed with the State. The withdrawal of a proposal shall not prejudice the right of a proposer to file a new proposal prior to the proposal closing date and time. However, once the proposal closing date and time has passed, proposals shall be irrevocable. 2.2 EVALUATION PROCESS Verification of Proposal Information The State may obtain credit reports and verify tax form information to further establish the qualifications of any proposer. All proposers may be subject to a personal interview 7 Jan. 28, 2020 Item #19 Page 15 of 107 and inspection of his/her business premises prior to award.· Proposers should notify bank and business references in writing that a representative from the State will be contacting them concerning the financial and credit information furnished to the State with the proposal. State's Right to Reject Proposals, Waive Defects and Requirements The State reserves the right to accept or reject any or all proposals, and waive any or all immaterial defects, irregularities, or requirements in the RFP for the benefit of the State, so long as such waiver does not give any proposer a material advantage over other proposers. A proposer shall not be relieved of his/her proposal nor shall any change be made in his/her proposal due to a proposer error. Supplemental Information At its sole discretion, the State reserves the right, but does not have the obligation, to seek supplementary information or clarification from any proposer at any time between the dates of proposal submission/acceptance and the concession contract award. The State may obtain credit reports and/or make background inquiries to further establish the qualifications of any proposer. Proposers may be required to make a presentation to the Concession Contract Award Board. Proposal Evaluation All proposals received shall be evaluated for form and content in accordance with the requirements of this RFP. Upon receipt of only one proposal for this concession and at the State's discretion, a Concession Contract Award Board may be convened to evaluate and score the proposal. Upon receipt of more than one proposal, a Concession Contract Award Board will evaluate and score each eligible proposal pursuant to the point system and selection criteria as described in the Proposal Instructions and Proposal Evaluation Sheet. Proposals that do not pass Evaluation Level I will be disqualified from further consideration. Proposals that pass Evaluation Level I but do not pass Evaluation Level II may be considered by the Concession Contract Award Board provided more than one proposal is received. Concession Contract Award Board Concession Contract Award Boards are appointed by the Director of the California Department of Parks and Recreation, or his or her representative, and convened to review, evaluate, and rate each proposal received to make a recommendation to the Director regarding the selection of the "Best Responsible Proposer". If an Award Board is convened for this RFP, the members may include park staff with related expertise, such as Field Division Chief, Deputy Director, Park Design and Construction staff, or District Superintendent, and representatives from other public agencies or the private sector. The Award Board cannot consist of individuals associated with the District that is advertising the RFP. Concession Contract Award If an award is made, the award for a concession contract will be to the "Best Responsible Proposer" in accordance with California Public Resources Code Section 5080.23. The "Best Responsible Proposer" will be the proposer whose proposal passes each of the required elements and receives the highest total score as determined by the Concession Contract Award Board and as approved by the Director. In the event of 8 Jan. 28, 2020 Item #19 Page 16 of 107 only one proposal for this concession contract, the State may award the contract upon determining the one proposal passes each of the required RFP elements. Execution of the awarded concession contract is subject to approval by controlling agencies of the State, which include the Department of General Services and the Attorney General, and will not be binding on the State or the successful proposer until such approval is obtained. In the event the State does not identify a "Best Responsible Proposer" through the bid process, the State may negotiate a concession contract under the provisions of California Public Resources Code Section 5080.16(a). Protest of Award Based on California Code of Regulations, Title 14, Division 3, Chapter 3, Section 4400 and California Department of Parks and Recreation policy, within ten (10) days after the State has issued a notice of intent to award a concession contract for a term in excess of two (2) years following a RFP, any proposer who submitted a proposal for that specific RFP may file a written statement of protest against awarding of the contract with the Director of the California Department of Parks and Recreation. The statement shall be signed by the protestor, shall specify the grounds for the protest and may include a demand for a hearing. Failure to file a verified petition within the ten (10) day period shall constitute a waiver of the right to protest. Protests must be sent to: Director California Department of Parks and Recreation 1416 Ninth Street, 14th Floor P. 0. Box 942896 Sacramento, California 94296-0001 Fax: (916) 657-3903 A copy of the protest must be served on the Attorney General within the ten (10) day period by the proposer. Serve the Attorney General at: State of California Department of Justice Office of the Attorney General Land Law Section 1300 I Street Sacramento, California 95814 Fax: (916) 322-5609 or (916) 327-2319 If a protest is timely served and a hearing is demanded, or if the Director on his or her own motion orders a hearing, proceedings shall be conducted according to the Administrative Procedure Act, and the protest statement shall be treated as a Statement of Issues (Govt. Code 11504). Issues not raised in the protest statement are deemed waived. The filing of a protest does not prevent the State from awarding the contract. Any recommendation or decision of the hearing officer shall be submitted to the Director for approval, adoption, modification, disapproval, or other interlocutory or final action. If a hearing is not so demanded or ordered, the action of the Director shall be final. 9 Jan. 28, 2020 Item #19 Page 17 of 107 2.3 CONTRACT EXECUTION Preparation of Contract Subsequent to the award of a contract, if an award is made, the State will prepare a final contract for execution. The contract will contain "exhibits" developed from the selected proposal including the proposal's Operation, Facility, and Interpretive Plans, as required. Minor changes or modifications to the contract, proposal plans, and contract exhibits may be made prior to execution based on agreement between the State and concessionaire. However, no material change to the concession contract or its exhibits as presented in the RFP and in the selected proposal may be made. Performance Bond and Insurance The successful proposer will be required to submit a Performance Bond (or other approved surety) and evidence of insurance required under the contract. Failure to submit the bond and/or insurance verification within the time limit presented may be treated as a refusal to execute, if the State so elects, and the State may take the Proposal Bond and select the next Best Responsible Proposal. Failure to Sign/Deliver Contract A failure of the successful proposer to sign and deliver the contract within thirty (30) days of receipt may be treated as a refusal to execute, if the State so elects, and the State may retain the Proposal Bond and select the next Best Responsible Proposal. 10 Jan. 28, 2020 Item #19 Page 18 of 107 SECTION 3 -THE PROPOSAL 3.1 INSTRUCTIONS FOR THE CONCESSION PROPOSAL A complete Concessions Proposer Questionnaire Checklist, Proposer Questionnaire form (also known as DPR 398) and a Proposal Bond will constitute the proposal. Proposer must complete all sections, respond to all questions, and fill in all blanks within the form. Inapplicable questions or blanks should be marked "N/A" or "Not Applicable". Failure to properly complete the form may disqualify the proposal. The proposal must be clear and unambiguous. It should clearly commit the proposer to enter into a contract with the State to provide the services and other concession improvements as required by this RFP and offered in the proposal. Financial commitments must be made and conditional only on contract execution. The submission of a proposal shall be deemed evidence that the proposer is aware of the responsibilities of being a concessionaire and has carefully examined State laws relating to California State Park concessions; possessory interest tax as related to concessions; the site(s) selected for said concession; obligations and responsibilities related to local control agencies and permitting requirements; and the proposal instructions, proposal form, and the sample concession contract included herein. I. PROPOSER INFORMATION A. Proposer Identification This section should be completed to reflect contact information for the business, proposer, and a point of contact. Small Business Status If the business is a Small Business (SB) or Disabled Veteran Business Enterprise (DVBE) they must enter their Office of Small Business (OSB) identification number and the proposal must include a copy of the Small Business Certification. To ensure a certifiable document, applications should be submitted to OSB well before the proposal closing day and properly identify a business type consistent with this RFP. It is the proposer's responsibility to contact OSB to verify the completeness of the application. Incomplete documents are not certifiable. Proposers may obtain an application for Small Business Certification from: Office of Small Business and DVBE Certification 707 Third Street, 1st Floor, Room 400 West Sacramento, CA 95605 (800) 559-5529 or (916) 375-4940 Fax: (916) 374-4950 A non-profit organization may qualify for the same preference points as a small business if registered with the OSB. 11 Jan. 28, 2020 Item #19 Page 19 of 107 B. Business Information Select the type of business that describes the proposing entity (Sole Proprietorship, Partnership, Joint Venture, Limited Liability Company or Corporation) and provide the requested information. The type of business must be established prior to submitting a proposal. All proposals must include documentation that they can do business within the State of California. • Sole Proprietorships: operating under a business name shall include proof of registered fictitious business name. • Partnerships: shall include a copy of the Partnership Agreement which clearly describes the role of each partner. • Joint Ventures: shall include a copy of the Joint Venture StatemenUAgreement which clearly describes the role of each member in the joint venture. • Limited Liability Companies (LLC): shall include a copy of their Articles of Organization with the California Secretary of State seal (LLC-1 or LLC-5) and the Statement of Information (LLC-12) to identify the managing member or members of the organization. • Corporations: shall include a copy of the Articles of Incorporation with the California Secretary of State seal, and a board resolution to authorize the concession proposal and identify the individual authorized to act on behalf of the corporation. C. Individual Information This section must be completed by each individual, partner, and member of the joint venture; CEO, officers, and holders of 25% or more of the company's shares for corporations; concession manager; and the managing member(s) of the organization identified on the LLC-12 for a limited liability company. The aforementioned identified individual(s) must also complete and sign the Authorization to Release Information in Section IV. Personal History: Proposers must provide their legal name, social security number, address, phone number and answer each of the questions. If the proposer answers yes to any question they must provide additional information. • If the proposer had a bond or surety canceled or forfeited within the past ten (10) years they must list the Bond Company, date, amount, and explain why it was canceled or forfeited. • If the proposer has been involved in, pleaded guilty or no contest to, or been convicted of committing any crime other than minor traffic violations they must list violation or crime, the dates it occurred, and the locations. • If the proposer has ever declared bankruptcy, been declared insolvent or bankrupt, filed for bankruptcy, or been reorganized under Federal or State laws they must list the dates, court jurisdictions, and amounts of liabilities and assets. • If the proposer is involved in any pending litigation they must list the violations, dates, and locations. Experience: For the purpose of this RFP, proposers must have a minimum of three (3) years' experience owning, managing or operating a business of similar type, size and scope as the concession operation set forth and described in this RFP. Proposals with less than the minimum experience will be disqualified. 12 Jan. 28, 2020 Item #19 Page 20 of 107 Provide a narrative describing in detail the duration, extent, and quality of the proposer's education and business experience with special emphasis on the experience and qualifications related to the subject concession. Be specific with respect to the type and dates of experience, the proposer's management role and specific duties, type and size of operation, quality of operation, public agency involvement, contractual relationships, and other factors demonstrating ability to successfully operate the proposed concession. Include additional information as needed. Certification: Proposers must sign and date the certification at the bottom of the page certifying that all information provided is true and accurate. D. Business References Client and vendor references are used to confirm information provided by proposers and to evaluate the proposer's quality of experience and past performance. Proposers should submit one reference for each reference type required below. However, to adequately substantiate the claims made in the proposal, proposers are encouraged to provide three references that are familiar with the business. Proposers should notify their references in writing that a representative from the State will be contacting them. For the purposes of this RFP, proposers should provide references from the following sources: • Client or Business References: Name clients or other persons that most accurately reflect the business performance and ability to fulfill contract obligations with other entities for the provision of goods and services. • Vendor References: Proposers should provide vendor references if they are a pre- existing business currently utilizing vendors. 11. THE PROPOSAL Provide Operation and Facility Plans that addresses each of the checked elements in the Concession Proposer Questionnaire form (DPR 398). Each element of the DPR 398 is described below. Proposers may submit additional information to describe and enhance their proposal. As a condition of the contract award, the successful proposer may be required to revise or further develop these plans to the satisfaction of the State and prior to the execution of the contract. If and when it is accepted, the final plans will be incorporated as exhibits to the contract and become an obligation of the concessionaire. The Proposal Plans shall be submitted on a CD or USB device concurrent with the proposal. The plans provided on the CD or USB must be available in Microsoft Word format so they can easily be incorporated as exhibits in the final contract. A. Rental Offer The concessionaire will be required to pay as annual rent a guaranteed amount (Rental Guarantee) or a Percentage of Gross Sales, whichever is greater. Proposers shall bid both the Rental Guarantee and the Percentage of Gross Sales as specified in the DPR 398. For the purposes of this RFP, the Rental Guarantee must be at least three thousand dollars ($3000) and the Percentage of Gross Sales must be at least twelve 13 Jan. 28, 2020 Item #19 Page 21 of 107 percent (12%). Any offer below the minimum rent requirements will result in proposal disqualification. B. Operation Plan The Operation Plan should address the following elements and must demonstrate an understanding of and commitment to achieving the objectives of this RFP. The proposal must also adhere to the operational requirements as described in the Sample Concession Contract. Executive Summary The Executive Summary should summarize relevant experience, knowledge, and expertise, and the required Proposal Plans in 250 words or less. Vision/Mission Statement Provide a Vision/Mission Statement that aligns with the California Department of Parks and Recreation's and the park unit's mission(s) as well as the proposer's goals and objectives for the concession business. Organizational Structure Provide an organization chart and staffing plan that can guide the operations and ongoing management of the concession business. The plan should identify the proposed concession manager; position titles and salaries for all job classifications with a summary of the required job skills, qualifications and duties; and the number of existing or proposed employees in each job classification to support the operation. Transition/Business Start-Up Provide a plan and timeline for starting concession operation and providing a seamless transition in customer service. If applicable, this plan shall consider provisions for the retention of employees of an existing concessionaire who may become displaced during the transition to a new concession operator. Maintenance and Housekeeping Provide a comprehensive plan to maintain the concession-owned facilities in a first- class condition throughout the term of the contract. The maintenance plan must describe staffing schedules, noting required skills or qualifications of employees, any subcontracted services expected, maintenance or replacement schedules of concession owned equipment, and annual budget allocation for repairs and ongoing maintenance. Customer Service Describe a clear commitment to successfully implement an effective customer service program. The plan should include, but is not limited to, previously established and effective customer service program models, adequate employee staffing and management oversight, hours of operation equal to or greater than required by this RFP, and a customer satisfaction survey program. Employee Staffing and Training Describe personnel policies and training program for all employees including, but not limited to, hiring practices; probationary period; health, safety, and grievance policies and procedures; performance monitoring; uniform requirements; business orientation; 14 Jan. 28, 2020 Item #19 Page 22 of 107 job training; and park orientation training. Such programs must provide sufficient staffing with the skills and knowledge to ensure the provision of high-quality services, as well as, the ability to respond to public inquiries regarding state parks in the area and answer basic questions about the park's interpretive themes. Marketing and Advertising Describe proposed marketing and advertising methods; identify media sources and sample advertising materials, schedules, brochures, signage; plans to collaborate and co-brand with the department; and specify an annual marketing budget allocation. · Favorable consideration will be given to proposals indicating focused efforts to increase visitors from California's multi-ethnic and disadvantaged populations. Community Involvement Describe commitment to create added value and benefits to the surrounding community and park visitors. This may include special events, educational programs, and community service activities. In addition, proposer should identify any special skills, knowledge, and resources needed and available to implement the plan. Products, Merchandise, and Services Provide a detailed description of the proposed products and services to be provided by the concession operation. The products and services offered should meet or exceed the needs of the park users, and be compatible with and complementary to the mission of the park. Prices and Pricing Policies Provide a price schedule for a representative sample of the proposed products and services. The policies should include an explanation of the process to be used to establish prices for products and services. Such. policies should provide park visitors with quality products at reasonable prices considering the competition of comparable markets for similar products, services and the cost of doing business. Conservation and Recycling Outline the proposer's approach to solid waste management, including reduction, re- use, and recycling, use of post-consumer recycled products, water and energy conservation, pest management, hazardous materials handling, air quality, and other applicable facets of resource conservation and environmental protection that are applicable to the concession operation. The plan should clearly commit proposer to a program that will minimize negative impacts on the environment and encourage park visitors to do the same. Accessibility Describe commitment to ensure that visitors with disabilities will have access to all of the events and services provided through the concession operation in accordance with the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, and California Government Code Sections 4450 et. seq. and 7250. Additional accessibility resources are available at www.ada.gov;http://www.parks.ca.gov/?page id=21944; (State Parks Accessibility Program) and http://www.parks.ca .gov/?page id=22651 (All Visitors Welcome handbook). 15 Jan. 28, 2020 Item #19 Page 23 of 107 Safety and Security Provide a detailed description of the safety and security procedures that are provided and available on the premises and how this will be upheld to ensure that a good safety record is maintained. As a condition of the contract award, the successful proposer may be required to revise or further develop the Operation Plan to the satisfaction of the State and prior to the execution of the contract. If and when it is accepted, the final plan will be incorporated as an exhibit to the contract and become an obligation of the concessionaire. C. Facility Plan The Facility Plan should address the following elements and meet or exceed the objectives of this RFP to provide high-quality and accessible facilities. Greater consideration will be given to those proposals that clearly demonstrate an ability to implement the plan. In addition, the successful proposer must adhere to the facility requirements as described in the Sample Concession Contract. Furnishings Describe the intended physical facilities of the concession including furnishings, equipment, decor, and layout Implementation of proposer's plan should provide first-· class concession facilities consistent with park values that will enhance visitor services at the park. Accessibility Describe the proposer's plan to remove any identified physical barriers to accessibility. Include a description of the barriers identified, the means used to identify barriers and a timeline for the removal of said barriers. Implementation Provide a timeline for completion of any capital improvements and installation of said decor and equipment prior to the commencement of operations and a description of each step in the process. Cost Estimates Provide a cost breakdown for the Facility Plan, including furnishings. As a condition of the concession contract award, the successful proposer may be required to revise or further develop the Facility Plan to the satisfaction of the State and prior to the execution of the concession contract. After the State's review and approval, the Facility Plan from the successful proposal shall be included as an exhibit to the concession contract Ill. FINANCIAL INFORMATION Complete the Concession Development, Business Financial Statement, Financial References, Credit Worthiness, and the Financial Proforma with projections for the duration of the proposed contract term to demonstrate proposer's ability to successfully initiate and operate the proposed concession in a financially responsible manner. 16 Jan. 28, 2020 Item #19 Page 24 of 107 A. Concession Development Proposers must present evidence satisfactory to the State demonstrating their ability to finance, construct, operate, and maintain the concession facilities as proposed. The proposer must include the source of funding and detailed information including: Concession Development Cost Estimate: Project the costs associated with developing the concession. Costs include but are not limited to planning and design, interior improvements, equipment, furnishings, vehicles, inventory, licensing, and permits. Proposed Means to Finance Concession: Provide amounts for personal finances, loans, or credit thatwill be used to finance the concession. Identify and document the specific source of funding that the business will use to undertake the project as proposed. If the development will be funded by outside sources (i.e., parent company, third party, LLC partners, donors, etc.), proposal must include documentation, such as a recent bank statement, balance sheet, income statement, or other supporting documents to demonstrate these funds are available, and a signed statement that these funds are unconditionally committed to this concession project. If funds are to be borrowed to finance any portion of the total investment, proposer must provide loan commitment documentation such as a letter-of-intent from the individual, bank, or other lending entity indicating the minimum amount to be loaned and any applicable percentage rate. The loan commitment may contain the qualification that the loan will be consummated only upon award of an agreement with the State, otherwise the commitment must be irrevocable and unconditional. Repayment of any loans shall be included as a line item in the Financial Proforma. The Financial Proforma shall include the commitments made within the Operation and Facility Plans. Upon receiving a "pass" under Level II, concession feasibility will be further evaluated under Level 111 in relation to the Operation and Facility Plan commitments. 8. Business Financial Statement Business Financial Statement: The Business Financial Statement is intended to describe the condition of the proposer's current business, including assets, liabilities, and net worth. A complete and accurate Business Financial Statement will reflect assets equal to liabilities plus net worth. Round figures to the nearest dollar. If the business is a partnership or joint venture, each general partner or joint venturers must individually submit a Business Financial Statement. Proposers may provide copies of forms filed with the Internal Revenue Service, Franchise Tax Board or statements prepared by a Certified Public Accountant in support of information contained in this statement. C. Financial References and Credit Worthiness Financial References: Proposers must submit a minimum of three financial references with two of the references being banking, savings, or loan institutions. The contact person listed should be familiar with the financial aspects of the business. 17 Jan. 28, 2020 Item #19 Page 25 of 107 Credit Worthiness: Proposers must present evidence of credit worthiness. At a minimum, this shall include a complete credit report from a nationally recognized credit bureau, such as Equifax or Experian, issued within 60 days of the proposal due date and include the FICO score for sole proprietors, each partner within a partnership, and each managing member of an LLC. Corporations shall provide the credit report from a recognized agency such as Dun and Bradstreet (D&B). Any derogatory information listed on said reports must be explained. Below average FICO scores, outstanding debts, delinquent payment history on current concession contracts, and any other negative credit history may disqualify a proposal. D. Financial Proforma Proposers must prepare a Financial Proforma to show estimated annual gross profit, expenses, and net income derived from the business' operations for the duration of the contract term. Proposers must explain how the figures were derived. The Financial Proforma shall include the commitments made within the Operation and Facility Plans. IV. CERTIFICATION AND AUTHORIZATION A. Authorization to Release Information A signed authorization for each individual, partner, member of joint ventures, officer of corporations, Concession Manager, and holders of 25% or more of the company's · shares (as applicable) must be included or the proposal may be disqualified . B. Labor Law Compliance Certification A request may be made to the National Labor Relations Board for information regarding Administrative Hearing decisions against each proposer. Proposer must have no more than one final, unappealable finding of contempt of court by a federal court issued for violation of the National Labor Relations Act within the two-year period immediately preceding the closing date of this RFP or the proposal will be disqualified. C. Authorization to Release Tax Returns A completed authorization to release tax returns for the appropriate business type must be included with the proposal or it may be disqualified. D. Proposer Certification A completed certification must be included with the proposal or it may be disqualified. V. PRIVACY NOTICE This section provides notice to proposers. No action by proposers is necessary. 18 Jan. 28, 2020 Item #19 Page 26 of 107 3.2 PROPOSAL EVALUATION CRITERIA The criteria below are used by the Concession Contract Award Board to determine a total score for the Level Ill Evaluation. Incumbent Preference 5 Points Incumbent proposals are awarded points based on annual Performance Evaluations performed by the State. The incumbent concessionaire is defined as the Sole Proprietor, Partnership, Joint Venture, Limited Liability Company or Corporation that currently operates the concession advertised in this RFP. Such concession operation must be at the same site, comprise the same type of operation(s), and provide substantially the same types of products and services as those specified in the RFP. Poor Performance Evaluations may result in negative point scores (See DPR 531 in the Sample Concession Contract). The absence of Performance Evaluations defaults to a r f f "E II t" a ing o xce en. Overall Rating of Evaluation Number of Years Points Awarded Rating Was Received "Excellent" 3 out of last 3 years 5 points "Excellent" with no "needs 2 out of last 3 years 3 points improvement" or "unsatisfactory" "Excellent" with no "needs 1 out of last 3 years 2 points improvement" or "unsatisfactory" Satisfactory 3 out of last 3 years 1 point "needs improvement" or 1 out of last 3 years -1 point "unsatisfactory" "needs improvement" or · 2 out of last 3 years -3 points "unsatisfactory" "needs improvement" or 3 out of last 3 years -5 points "unsatisfactory" Small Business Preference 5 Points Five (5) points will be awarded to those proposers who have a complete and certifiable application on file with the California Department of General Services' Office of Small Business. Experience 15 Points For the purposes of this RFP, proposers must have a minimum of three (3) years' experience owning, managing, or operating a busii:iess of similar size, type, and scope as the concession operations set forth and envisioned by this RFP. The proposer will be rated according to the years of relevant experience as verified by references and the quality of experience as it relates to the business described in this RFP. In addition, points are awarded for experience contracting with public agencies. 19 Jan. 28, 2020 Item #19 Page 27 of 107 Operation Plan 25 Points A maximum of twenty (20) points will be awarded based upon the degree to which the proposal addresses each of the elements described in Section 3, The Proposal, and identified in the DPR 398, Proposer Questionnaire. Facility Plan 15 Points A maximum of twenty (20) points will be awarded based upon the degree to which the proposal addresses each of the elements described in Section 3, The Proposal, and identified in the DPR 398, Proposer Questionnaire. Rental Offer 35 Points For the purpose of assigning points in the Proposal Evaluation, the highest acceptable rental offer* for each category of rent required (Rental Guarantee and Percentages of Gross Sales) will be assigned the maximum points available for that category. Each lower rental offer will be assigned points in relation to the highest rental offer as follows: Rental Guarantee (Minimum bid is $3,000) (Bid Amount) (Highest Bid Amount) X 20 points = ___ points Percentage of Gross Sales (Minimum bid is 12%) (Bid Amount) X 15 points = ___ points (Highest Bid Amount) *Note: the highest bids received may not be considered acceptable. Proposers may be required to prove to the satisfaction of the State their ability to operate a successful business under their rental offer. Failure to prove this ability will be cause to disqualify the proposal. In this case, the second highest acceptable bid would be used to calculate points awarded. Concession Feasibility Pass/Disqualify Concessions Feasibility is determined upon review and analysis of the fiscal documentation described in Section Ill, Financial Information, including the Concession Development Cost Estimate, the Proposed Means to Finance Concession, the Business Financial Statement, the Financial References, the Credit Worthiness, the Financial Proforma, and other documents submitted to support the proposal commitments. The financial projections should consider the commitments made within the Operation, Facility Improvement, and Interpretive Plans (as applicable) for the duration of the proposed contract term to demonstrate proposer's ability to successfully initiate and operate the proposed concession in a financially responsible manner. 20 Jan. 28, 2020 Item #19 Page 28 of 107 3.3 PROPOSAL EVALUATION SHEET LEVEL I COMPLIANCE WITH RFP REQUIREMENTS PROPOSER QUESTIONNAIRE · I. PROPOSER INFORMATION 11. 111. IV. A. Proposer Identification B. Business Information C. Individual Information D. Business References THE PROPOSAL A. Rental Offer B. Operation Plan C. Facility Plan FINANCIAL INFORMATION A. B. C. Concession Development Business Financial Statement Financial References and Credit Worthiness D. Financial Proforma CERTIFICATION AND AUTHORIZATION A. B. C. D. Authorization to Release Information Labor Law Compliance Certification Authorization to Release Tax Returns Proposer Certification PROPOSER BOND __ (pass/disqualify) __ (pass/disqualify) __ (pass/disqualify) __ · (pass/disqualify) __ (pass/disqualify) (pass/disqualify) -- --(pass/disqualify) __ (pass/disqualify) --(pass/disqualify) --(pass/disqualify) __ (pass/disqualify) --(pass/disqualify) --(pass/disqualify) __ (pass/disqualify) __ (pass/disqualify) __ (pass/disqualify) Proposer must pass LEVEL I to qualify for further consideration. 21 Jan. 28, 2020 Item #19 Page 29 of 107 LEVEL II RENT PROPOSED, ABILITY TO FINANCE & CREDIT WORTHINESS Rent Proposed Met/Exceeded Minimum Requirement Ability to Finance Credit Worthiness __ (pass/disqualify) __ (pass/disqualify) __ (pass/disqualify) Proposer must pass LEVEL II to qualify for further consideration. LEVEL Ill PROPOSAL EVALUATION Incumbent Preference Small Business Preference Experience/Quality of Experience Operation Plan Facility Plan Rental Offer GRAND TOTAL Concession Feasibility* Comments: Chair, Concession Award Board: -------------- Date:----- * A 'disqualify' rating in this category disqualifies the proposal. 22 / 5 Points / 5 Points / 15 Points / 25 Points / 15 Points / 35 Points / 100 Points / Pass/Disqualify* Jan. 28, 2020 Item #19 Page 30 of 107 3.4 CONCESSION PROPOSAL, DPR 398 If interested in submitting a proposal, please download the DPR 398 and associated documents from Cale-Procure at www.caleprocure.ca .gov. A Cale-Procure account must be created and logged into prior to downloading the documents and to view any changes or updates to the RFP. 23 Jan. 28, 2020 Item #19 Page 31 of 107 SAMPLE CONCESSION CONTRACT 25 Jan. 28, 2020 Item #19 Page 32 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Fitness and Recreation Services CONCESSION CONTRACT INDEX 1. DESCRIPTION OF PREMISES ............................................................................ 5 2. CONDITION OF PREMISES ................................................................................ 5 · 3. TERM ................................................................................................................... 6 4. RENT ............................... : ..................................................................................... 6 5. GROSS RECEIPTS .............................................................................................. 9 6. USE OF PREMISES ............................................................................................. 9 7. LIABILITY WAIVER ............................................................................................ 11 8. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES ................... 12 . 9. EMPLOYEE ORIENTATION AND TRAINING .................................................... 12 10. ALCOHOLIC BEVERAGES ................................................................................ 13 11. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL. ........................ 13 12. RESOURCE CONSERVATION: ......................................................................... 15 13. HAZARDOUS SUBSTANCES ............................................................................ 17 14. EQUIPMENT ...................................................................................................... 18 15. PERSONAL PROPERTY ........... : .................................................... : .................. 19 16. SIGNS AND ADVERTISING ..................................................... , ......................... 19 17. PHOTOGRAPHY ................................................................................................ 19 18. INTELLECTUAL PROPERTY RIGHTS .............................................................. 19 19. · GRANT OF STATE'S TRADEMARK LICENSE .................................................. 21 20. PARTICIPATION IN STATE PARK MARKETING PROGRAMS ........................ 22 21. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS .......................... 22 22. BONDS ....................................................................................................... : ....... 23 23. INSURANCE ............................................... ~ ...................................................... 24 24. HOLD HARMLESS AGREEMENT ..................................................................... 28 25. COMPLIANCE WITH LAWS, RULES, REGULATIONS AND POLICIES ........... 29 26. DISABILITIES ACCESS LAWS .......................................................................... 30 27. NONDISCRIMINATION ...................................................................................... 30 28. DRUG-FREE WORKPLACE .............................................................................. 31 29. CONFLICT OF INTEREST ................................................................................. 32 Jan. 28, 2020 Item #19 Page 34 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 30. EXPATRIATE CORPORATIONS .................................. · ..................................... 32 31. NATIONAL LABOR RELATIONS BOARD CERTIFICATION ............................. 32 32. CHILD SUPPORT COMPLIANCE ACT ............................................. , ................ 32 33. RECORDS AND REPORTS ............................................................................... 33 34. TAXES ........................................ _. ....................................................................... 34 35. PERFORMANCE EVALUATIONS AND INSPECTIONS .................................... 35 36. DEFAULT BY CONCESSIONAIRE .................................................................... 36 37. STATE'S REMEDIES ......................................................................................... 38 38. DEFAULTBYSTATE ......................................................................................... 42 39. SURRENDER OF THE PREMISES; HOLDING OVER ...................................... 42 40. NO RECORDATION ........................................................................................... 43 . 41. ATTORNEY FEES .............................................................................................. 43 42. WAIVER OF CLAIMS ......................................................................................... 44 43. WAIVER OF CONTRACT TERMS ..................................................................... 44 44. INTERPRETATION OF CONTRACT ................................................................. 44 45. DURATION OF PUBLIC FACILITIES ................................................................. 44 46. EMINENT DOMAIN ............................................................................................ 45 47. TEMPORARY TENANCY ................................................................................... 45 48. SECTION TITLES .............................................................................................. 45 49. INDEPENDENT CONCESSIONAIRE ................................................................ 45 50. ASSIGNMENTS AND SUBCONCESSIONS ...................................................... 45 51. MODIFICATION OF CONTRACT ....................................................................... 46 52. UNENFORCEABLE PROVISION ........................................... : ........................... 47 53. APPROVAL OF CONTRACT ...................................................................... , ...... 47 54. CONTRACT NOTICE ......................................................................................... 4 7 55. STATE'S DISTRICT SUPERINTENDENT ......................................................... 48 EXHIBIT A-THE PREMISES ...................................................................................... 50 EXHIBIT 8-DPR 54, CONCESSIONAIRE'S MONTHLY REPORT OF OPERATION. 51 EXHIBIT C-DPR 86,· CONCESSIONAIRE FINANCIAL STATEMENT ........................ 53 EXHIBIT 0-DPR 531, CONCESSION PERFORMANCE RATING ............................. 57 EXHIBIT E-DRUG FREE WORKPLACE CERTIFICATION ........................................ 59 ii Jan. 28, 2020 Item #19 Page 35 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB EXHIBIT F -LICENSE/PERMISSION FOR USE OF TRADEMARKS .......................... 60 EXHIBIT G -CONSUMER PRICE INDEX ADJUSTMENT FORMULA ........................ 62 EXHIBIT H -WAIVER OF LIAB ILITY AND RELEASE SAMPLE .................................. 63 EXHIBIT I -CONCESSIONAIRE'S OPERATION PLAN .............................................. 64 EXHIBIT J -CONCESSIONAIRE'S FACILITY PLAN ................................................... 65 iii Jan. 28, 2020 Item #19 Page 36 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB STATE OF CALIFORNIA DEPARTMENT OF PARKS AND RECREATION CONCESSION CONTRACT For Fitness and Recreation Services Located In Carlsbad State Beach and South Carlsbad State B~ach San Diego County THIS CONTRACT is made and entered into by and between the STATE OF CALIFORNIA, acting through its Department of Parks and Recreation, hereinafter referred to as "State," and ConcessionaireName DBA FictitiousBusName of CityState, hereinafter referred to as "Concessionaire"; RECITALS WHEREAS, California Public Resources Code §5080.03 et seq. authorizes the Department of Parks and Recreation to enter into concession contracts for the operation of state park system lands and facilities and; WHEREAS, in accordance with California Public Resources Code § 5080.23, concession contracts authorizing occupancy of any portion of the state park system for a period of more than three (3) years are required to be awarded through a competitive bid process and; 4 Jan. 28, 2020 Item #19 Page 37 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB WHEREAS, the State Parks and Recreation Commission has been notified in accordance with California Public Resources Code§ 5080.23 and; WHEREAS, it is appropriate that the following contract be entered into for the safety and convenience of the general public in the use and enjoyment of, and the overall enhancement of recreational and educational experience at units of the state park system; NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. DESCRIPTION OF PREMISES The State for and in consideration ofthe agreements hereinafter stated, grants to Concessionaire for the purposes stated herein, the right, privilege, and duty to develop, equip, operate, and maintain a nonexclusive concession in Carlsbad State Beach and South Carlsbad State Beach at th.e location(s) as set forth in Exhibit A, attached to and made a part of this Contract (the "Premises"). The Premises shall be developed and operated for public ou.tdoor recreation purposes in compliance with the provisions of the Land and Water Conservation Fund Act (LWCF). The possessory interest herein given to the Concessionaire does not exclude the general public from the Premises; however, the use by the general public is limited by the terms and conditions of the possessory interest given herein. This Contract is not intended to confer third party beneficiary status to any member of the public who is benefited by the terms of this Contract. The possessory interest is further subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of title that may affect the Premises. 2. CONDITION OF PREMISES The taking of possession of the Premises by the Concessionaire, in itself, shall constitute acknowledgment that the Premises are in good and sufficient condition for the purposes for which Concessionaire is entering into this Contract. Concessionaire agrees to accept Premises in their presently existing condition, "AS IS," and that the 5 Jan. 28, 2020 Item #19 Page 38 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB State shall not be obligated to make any alterations, additions, or betterments to the Premises except as otherwise provided for in this Contract. 3. TERM The term of this Contract shall be for a period of five (5) years, with the State's option to extend an additional five (5) years commencing on the first day of the month following approval by tpe California Department of General Services. Should Concessionaire hold-over after the expiration of the term of this Contract with the express or implied consent of the State, such holding-over shall be deemed to be a tenancy from month-to-month at the herein stated prescribed rent as set forth in this Contract in Section 39, Surrender of Premises; Holding Over, with continuous Consumer Price Index adjustment, as defined below, subject otherwise to all the terms and conditions of this Contract. Concessionaire further acknowledges that commensurate with the success of the concession services described herein, at State's sole discretion, State will initiate a process to either negotiate or competitively bid this concession operation as appropriate prior to the term expiration. For purposes of this Contract, the term "Contract Year" shall mean each one- year period of time that commences on the commencement date identified above, extending twelve (12) months therefrom, and continuing from each anniversary throughout the term of the Contract. 4. RENT Concessionaire shall pay, without offset, deduction, prior notice, or demand, as "Minimum Annual Rent" the sum of GuaranteedRent plus the following percentage(s) of gross receipts: Minimum Percent Bid of Annual Gross Receipts Beginning with Contract Year Six (6) and on the first day of each fifth Contract Year thereafter, the Minimum Annual Rent shall be adjusted to reflect changes in the Consumer Price Index (CPI). Such CPI adjustments shall be made in accordance with the procedure set forth in Exhibit G, attached to and made a part of this Contract. 6 Jan. 28, 2020 Item #19 Page 39 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Concessionaire shall make payment of Minimum Annual Rent and other payments to State in lawful money of the United States. However, if any payment made by a check, draft, or money order is returned to State due to insufficient funds or otherwise, State shall have the right, at any time after the return, upon written notice to Concessionaire, to require Concessionaire to make all subsequent payments in cash or by cashier's or certified check. Beginning with the fifteenth (15th) day of the month following the execution of the Contract, and on or before the fifteenth (15th) day of each month thereafter, Concessionaire shall furnish to State a verified statement of the concession's gross receipts for the preceding month. Such statement shall be submitted on Form DPR 54, Concessionaire's Monthly Report of Operation, attached hereto as Exhibit 8, or in a format previously approved by the State, and shall specify the current period and cumulative total of gross receipts for the concession through the end of the preceding month for the then current Contract Year. Concessionaire shall also provide such statement for periods of non-operation. Concurrent with such monthly statement, the . Concessionaire shall pay to State the appropriate rental fee based on the gross receipts for the preceding calendar month as prescribed above. Payments to State shall be made to the order of the Department of Parks and Recreation and delivered to the District Office identified in Section 54, Contract Notice, or at such other location as may from time to time be designated by State. If, at the end of the Contract Year, the total of monthly percentage rental payments made (or due) during that Contract Year is less than the Minimum Annual Rent required for that Contract Year, the difference shall be remitted to State with the last monthly sales statement for the Contract Year. Payments must be received by State on or before the fifteenth (15th) day of the month as described above. Any late payment shall constitute a breach of contract, giving rise to State's remedies as set forth below. Further, any late payment will be subject to a late penalty consisting of an administrative charge on the late amount, calculated at the rate of five percent (5%) of the amount of the late payment or portion thereof. The parties agree that the late charge represents a fair and reasonable estimate of the costs State will incur because of late payment. Acceptance of the late charge by State shall not constitute a waiver of Concessionaire's default for the overdue amount, nor prevent 7 Jan. 28, 2020 Item #19 Page 40 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB State from exercising the other rights and remedies granted under this Contract. Concessionaire shall pay the late charge as additional rent with the next monthly rent payment. Any amount due to State, if not paid within five (5) days following the due date, will bear interest from the due date until paid at the rate of ten percent (10%) per year. However, interest shall not be payable on late charges incurred by Concessionaire. Payment of interest shall not excuse or cure any default by Concessionaire. Upon written request by the Concessionaire to State demonstrating unusual or extenuating circumstances causing the late payment, the State, in its sole discretion, may waive the late charge. Further, in the event Concessionaire is prevented from carrying on the operations contemplated herein by reason of an Act of Nature or other reasons beyond Concessionaire's control, and when requested in writing in advance by Concessionaire, Minimum Rent may be abated in proportion to the amount by which gross receipts are reduced by the occurrence for such period of reduced or non- operation, as determined in the sole discretion of State. If this Contract is terminated by State because of Concessionaire's default, and if Concessionaire becomes liable for any deficiency in rent and/or fees by way of damages or otherwise, or if at any time during the Contract term Concessionaire ceases to conduct in the Premises the business referred to herein below, then from and after the time of the breach causing this termination, or from and after the time of the cessation of business, all unpaid rent and/or fees prior to the breach causing termination or cessation of business shall become due and payable. The amount due shall be deemed to be the greater of: (a) the Minimum Rent provided herein, or (b) an amount based upon the average of the payments that have accrued to State as percentage rent during the twenty-four (24) months preceding the termination or cessation of business, unless the termination or cessation occurs within three (3) years of the beginning of the Contract term, in which event the previous twelve (12) (or fewer, if applicable) months shall be used as the basis of this average. 8 Jan. 28, 2020 Item #19 Page 41 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 5. GROSS RECEIPTS . The term "gross receipts," wherever used in this Contract, is intended to and · shall mean all moneys, property, or any other thing of value received by or owed to Concessionaire and any sub-concessionaire or operator, if other than Concessionaire, through or in connection with the operation of the concession, including any concession related business carried on through the internet or catalog sales, or from any other business carried on or in connection with the Premises, or from any other use of the Premises, and/or of any business of any kind that uses the names licensed by this Contract, or that associates with or implies an endorsement by State, all without deduction. The term "gross receipts" shall not include any sales taxes imposed by any governmental entity and collected by Concessionaire. Reservation deposits shall not be included in gross receipts until the services that relate to the deposit have been rendered by Concessionaire or the reservation has been canceled and the deposit has been retained by Concessionaire in accordance with the Concessionaire's deposit policy as approved in advance in writing by the State. At the State's sole discretion, such advance deposits may be retained by the State until the revenue is earned, at which time the State will release payment to the Concessionaire less any reservation, administrative, and/or transaction fees. Should the State elect not to retain the advance deposits, they shall be retained by the Concessionaire in an interest-bearing joint trust account. All earned interest, including interest earned on a reservation deposit, shall be included in gross receipts for the month such earned interest is reported to Concessionaire. 6. USE OF PREMISES The Premises shall be used by the Concessionaire as follows: A. Schedule and manage public non-aquatic fitness and recreation opportunities on the beach including yoga, Pilates, core training, personal training sessions, calisthenics, or activities such as "boot camps", mixed martial arts, or other non-aquatic fitness and recreation activities approved in advance by State in writing. 9 Jan. 28, 2020 Item #19 Page 42 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB B. At Frazee, Warm Waters and S. Ponto areas, schedule and manage volleyball play and volleyball instruction. One volleyball court will be available at all times for no-fee public use.and clearly marked as such as approved by State in writing. C. Maintain website with current pricing for activity, online reservation option and updated schedules. Allow for real-time reservations. D. Concessionaire shall provide evidence and maintain current certificates in First Aid, CPR and have a cell phone programmed to State Parks Dispatch in case of emergency. Premises group ratio of one (1) First Aid/CPR instructor to twenty (20) participants 18 and older; and one (1) First Aid/ CPR instructor to ten (10) participants for age groups under 18. E. The concessionaire, any concession employee, volunteer or paid, or sub- concessionaire shall have a criminal background check paid by concessionaire. The District Superintendent or Designee shall be provided a list of employees, sub-concessionaires or volunteers on a continuous basis, along with completed background documents and proof of CPR/First Aid certification prior to that person working on the premises F. Volleyball 'club' play organized and managed by concessionaire will not be permitted as part of this concession agreement. G. No storage will be permitted on the beach, with the exception of volleyball poles and volleyball nets. Concessionaire will haul in, set up, take down and haul away any necessary equipment to support fitness activities at the beginning and end of each day's session. H. No stairway or beach access will be used for fitness activities. I. Maintain the premises, facilities, furnishings, and equipment in good condition in accordance with State standards and concession contract provisions. J. Demonstrate compliance with labor laws as requested by the State The Use of Premises will be consistent with the State approved Operation Plan and Facility Improvement Plan as required and proposed by Concessionaire and modified by State as is reasonable and necessary to meet the intention of the State for 10 Jan. 28, 2020 Item #19 Page 43 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB this concession operation and the mission of California State Parks. The approved Concessionaire's Operation Plan and Facility Improvement Plan are incorporated herein and made part of this Contract as Exhibits I and J respectively. Concession services shall be provided between the hours of 7:00AM and Noon, and again from 5:00PM to 8:00 PM Memorial Day through Labor Day (summer months), and between the hours of 7:00 AM to two (2) hours after sunset the remainder of the year (winter months), starting on StartDate and ending on End Date, or when the unit closes, whichever is earlier, during each year of the Contract. In the event State deems the hours of operation inadequate for proper service to the public, State may require Concessionaire to adjust the days and/or hours of operation to a schedule provided by State. Concessionaire may remain open on other dates, observing same (or longer) hours, at Concessionaire's discretion with the wriJten concurrence of State. In the event of adverse weather or other operating conditions, State may permit the concession to close at any time during the term of this Contract. Where safety or health violations are present or where there has been a lapse in insurance or bond coverage, the District Superintendent shall require a concession to temporarily close for business. The concession shall not be allowed to reopen until the violations and/or deficiencies have been corrected to the satisfaction of the State. Concessionaire shall not use or permit the Premises to be used in whole or in part during the term of this·Contract for any purpose other than as herein set forth without the prior written consent of the State. A competent person shall be on the Premises at all times while the concession is in operation. If the on-site manager is other than the Concessionaire, State must approve such manager. 7. LIABILITY WAIVER Concessionaire shall require that a liability waiver, equivalent to the waiver attached hereto as Exhibit H, Waiver of Liability and Release and incorporated herein by this reference, be executed between Concessionaire and each concession patron prior to the start of each fitness or recreational activity. Such waiver is subject to the State's approval and shall release State, its officers, employees, and agents from any 11 Jan. 28, 2020 Item #19 Page 44 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB liability resulting from any claim associated with services, equipment, and activities provided and facilitated on each fitness or recreational activity. The liability waiver text shall be pre-printed, and must be signed by every person participating in each fitness or recreational activity within the Premises as permitted in this Contract. Concessionaire shall make signed liability waivers available to State inspection and shall provide copies upon request. All required waivers shall comply with any and all conditions precedent to insurance coverage as required herein. 8. RATES, CHARGES AND QUALITY OF GOODS AND SERVICES Concessionaire shall staff, operate, manage, and provide all goods, services, and facilities offered in a first-class manner and comparable to other high quality concessions providing similar facilities and services. State reserves the right to prohibit or modify the sale or rental of any item, accommodation, or service for public safety and/or to ensure that the public receives, in the State's view, fair pricing, proper service, and appropriate quality. Any changes to rates or charges to park visitors proposed by Concessionaire shall be submitted in writing for the State's approval but does not require a formal amendment to the contract. Rate changes may not be imposed retroactively. 9. EMPLOYEE ORIENTATION AND TRAINING All concession employ~es shall receive training to include an orientation on the State Park System, and local points of interest, provided by Concessionaire. Such orientation shall be sufficient to permit concession employees to reply adequately to inquiries from the visiting public. Training also shall include job or task-specific training necessary to ensure high-quality job performance in a manner consistent with the protection of the State Park System and its visitors. Concessionaire's Employee Training/Orientation Program is subject to approval by the State. Security: The Concessionaire, any concession employee, volunteer or paid, or sub-concessionaire are required to undergo a background check, including references and fingerprints, to ensure that the individual has an acceptable record as a law-abiding citizen. to .. The background check must comply with all California laws pertaining to 12 Jan. 28, 2020 Item #19 Page 45 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB background checks including but not limited to California Government Code sections 12952 and Labor Code section 432.7. The background checks shall be equivalent to the California Department of Justice's Live-Scan Program. Background check reports shall be provided to the State as requested prior to that person working/volunteering on the premises. Concessionaire shall be responsible for all costs associated with said background checks. Concessionaires shall assess whether any criminal conviction have a direct and adverse relationship to the duties of the positions of special trust, and if so, consider it as a basis for removing the employee from that position, disqualifying an applicant or revoking an offer of employment. 10. ALCOHOLIC BEVERAGES Notwithstanding anything to the contrary, the sale of liquor, beer, or other alcoholic beverages on the Premises is expressly prohibited. Exception to this restriction may be allowed through the special event permit process, as approved by State. 11. HOUSEKEEPING, MAINTENANCE, REPAIR AND REMOVAL During the term of this Contract at Concessionaire's own cost and expense, Concessionaire shall maintain the Premises and areas in, on, or adjacent to a distance of ndt less than fifty (50) feet, including personal property and equipment, in a clean, safe, wholesome, and sanitary condition free of trash, garbage, or obstructions of any kind. Removal and disposal of all rubbish, refuse, and garbage resulting from concession's operations shall be the Concessionaire's responsibility and shall be disposed of outside the park unit and in accordance with applicable laws and local ordinances. All trash containers and/or trash bins shall be adequately screened to the satisfaction of State. Concessionaire shall remedy without delay any defective, dangerous, or unsanitary conditions. A. Housekeeping: Housekeeping activities are defined as all those activities concerned with keeping facilities clean, neat, and orderly, and includes, but is not limited to, raking, sweeping, and other general care or cleaning of beach facilities, facility fixtures, and all adjacent grounds and walks. Concession 13 Jan. 28, 2020 Item #19 Page 46 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB housekeeping shall conform to California State Park standards as stated in Chapter 8 of the Department Operations Manual. B. Maintenance and Repairs: Concessionaire shall maintain all concession facilities and personal property and equipment on the Premises in good condition and repair at Concessionaire's sole cost and expense at all times during the term of this Contract. Such maintenance shall conform to State Park standards as stated in Chapter 8 of the Department Operations Manual. For the purposes of this Contract, the term "maintenance" is defined as all repair and preservation work necessary to maintain concession facilities and personal property and equipment in a good state of repair, as well as to preserve them for their intended purpose for an optimum useful life. Should Concessionaire fail, neglect, or refuse to undertake and complete any required maintenance, State shall have the right to perform such maintenance or repairs for Concessionaire. In this event, Concessionaire shall promptly reimburse State for the cost thereof provided that State shall first give Concessionaire ten (10) days written notice of its intention to perform such maintenance or repairs. State shall not be obligated to make any repairs to or maintain any improvements on the Premises. Concessionaire hereby expressly waives the right to make repairs at the expense of State and the benefit of the provisions of §1941 and 1942 of the Civil Code of the State of California relating thereto if any there be. State has made no representations respecting the condition of the Premises, except as specifically set forth in this Contract. C. Removal and Restoration. At the expiration or sooner termination of this Contract, Concessionaire at its own expense shall remove all personal property brought onto the Premises by Concessionaire. Concessionaire, at Concessionaire's expense, shall restore and repair the Premises, and any of Concessionaire's improvements or fixtures remaining thereon, to a good, clean, safe, and fit condition, reasonable wear and tear expected, and shall completely remedy all injuries to the Premises. 14 Jan. 28, 2020 Item #19 Page 47 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 12. RESOURCE CONSERVATION A Environmental Conservation Program: Concessionaire shall set a positive example in waste management and environmental awareness that shall lead to preservation of the resources of the State. Accordingly, Concessionaire shall . prepare and execute a program, subject to the prior written approval of the State, designed to reduce environmental impacts that result from concession operations. This program shall address, but not be limited to: solid waste management, including reduction, reuse and recycling; water and energy conservation, pest management, grease removal and disposal, hazardous materials handling and storage, and air quality. Specifically, the program must include the following: 1) Recycling and Beverage Container Programs: The Concessionaire shall implement a source reduction and recycling program designed to minimize concession and patron use of disposable products, per Public Contract Codes §12161 and 12200 et seq. Reusable and recyclable products are preferred over "throwaways." Where disposable products are needed, products that have the least impact on the environment will be selected. No Styrofoam containers or other non-biodegradable containers are to be used or sold by Concessionaire. The use of "post- consumer" recycled products is encouraged wherever possible. The Concessionaire shall participate in the California beverage container redemption/recycling program. Products to be recycled include, but are not limited to, paper, newsprint, cardboard, bimetal, plastics, aluminum and glass. At the start of each Contract Year, Concessionaire and State shall review items sold, and containers or utensils used or dispensed by Concessionaire, and, whenever possible, eliminate the use of non-returnable or non-recyclable containers or plastics. 2) Water and Energy Conservation: The Concessionaire shall implement water and energy conservation measures. As new technologies are developed, Concessionaire shall explore the possibility of integrating them into existing operations where there is potential for 15 Jan. 28, 2020 Item #19 Page 48 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB increased efficiency, reduced water or energy consumption, and/or reduced impacts on the environment. 3) Erosion Control/Water Quality/Environmental Sensitivity: The Concessionaire shall comply with all requirements set forth by various oversight agencies that have jurisdiction and oversight authority relating to the Premises and surrounding properties, including, but not limited to, erosion control, water quality and environmental sensitivity standards. B. Resource Management and Preservation: Concessionaire shall comply with State's resource management and preservation mandates in the conduct of all activities that impact cultural, natural, or scenic resources. These mandates include the Public Resources Code §5024 and 5097 et seq., the Department Operations Manual Chapter 300, Department's cultural resource directives and Secretary of the Interior's Guidelines for Historic Preservation. C. Air and Water Pollution Violation: Under State laws, Concessionaire shall not be (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to §13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. D. Environmental Compliance and Resource Protection: The concessionaire shall comply with State's Cultural and Natural resource management mandates in the conduct of all activities that may potentially affect cultural, natural, and/or scenic values. These mandates include, but are not limited to, the California Environmental Quality Act (CEQA/PRC 21074), the Memorandum of Understanding between California State Parks and the Office of Historic Preservation Executive Orders W-26-92 and B-10-11, Departmental Notice 2004- 02, PRC §5024, §5024.5 and §5097 et seq., the Native American Graves Protection and Repatriation act (NAGPRA) (PL 101-601, 25 U.S.C. 3001 et seq., 104 stat. 3048) the Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring & 16 Jan. 28, 2020 Item #19 Page 49 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Reconstructing Historic Buildings, the California Endangered Species Act, the Federal Endangered Species Act, the Clean Air Act, the Clean Water Act, and the Porter Cologne Water Quality Act. When an undertaking has a Federal nexus, the National Historic Preservation Act (NHPA)-Section 106 (36 CFR Part 800.1 to 800.16) and the National Environmental Policy Act (42 U.S.C. §4321) will be required as well. The California State Parks Departmental Operations Manuals (DOM 300, 400, and 2000) for natural and cultural resources shall also be complied with for projects with the potential to affect resources. All resource management projects proposed within the Premises will be undertaken with the oversight provided by the appropriate State staff, specifically Environmental Scientists, State Historians, and State Archaeologists. Sensitive information will be safeguarded from general public distribution as required by state and federal law (California Government Code Section 65040.2(9)(3); 6254.10; 43 CFR 7, Section 7.18(a)). 13. HAZARDOUS SUBSTANCES A. On the Premises, Concessionaire shall not: 1) Keep, store, or sell any goods, merchandise, or materials that are in any way explosive or hazardous; 2) Undertake or engage in any offensive or dangerous trade, business, or occupation; or 3) Use or operate any machinery or apparatus that shall injure the Premises or adjacent buildings in any way. B. Nothing in this Section shall preclude Concessionaire from bringing, keeping, or using on or about said Premises such materials, supplies, equipment, and machinery as is appropriate or customary in conducting Concessionaire's business. C. Storage of Hazardous Materials: Concessionaire shall comply with all applicable laws and best practices pertaining to the use, storage, transportation, and disposal of hazardous substances. Gasoline, oil and other materials considered under law or otherwise to be hazardous to public health and safety 17 Jan. 28, 2020 Item #19 Page 50 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB shall be stored, handled, and dispensed as required by present or future regulations and laws. D. Conce$sionaire shall protect, indemnify, defend, and hold harmless the State or any of its affiliates, successors, principals, employees, or agents against any liability, cost, or expense, including attorney fees and court costs, arising from illegal use, storage, transportation, or disposal of any hazardous substance, including any petroleum derivative, by Concessionaire. Where Concessionaire is found to be in breach of this provision due to the issuance of a government order directing Concessionaire to cease and desist any illegal action in connection with a hazardous substance, or to remediate a contaminated condition directly caused by Concessionaire or any person acting under Concessionaire's direct control or authority, Concessionaire shall be responsible for all cost and expense of complying with such order, including any and all expenses imposed on or incurred by the State in connection with or in response to such government order. Notwithstanding the foregoing, in the event a government order is issued naming Conces~ionaire, or Concessionaire incurs any liability during or after the term of th-e Contract in connection with contamination that preexisted the Concessionaire's obligations and occupancy under this Contract or prior contracts, or that were not directly caused by Concessionaire, the State shall be solely responsible as between Concessionaire and the State for all expenses and efforts in connection therewith, and State shall reimburse Concessionaire for all reasonable expenses actually incurred by Concessionaire therewith. E. Certification: Upon termination of this Contract, when requested by State, Concessionaire shall provide certification prepared by a Certified Industrial Hygienist that there is no hazardous waste contamination and/or damage to the Premises. 14. EQUIPMENT Concessionaire, at Concessionaire's own expense, shall completely equip the concession improvements described herein and shall keep the same equipped in a safe and first-class manner throughout the term of this Contract. 18 Jan. 28, 2020 Item #19 Page 51 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 15. PERSONAL PROPERTY Except to the extent covered by Section 21, Modifications, Additions, Title to Improvements, title to all personal property provided by Concessionaire shall remain in Concessionaire. Concessionaire shall not attach any personal property to any building without first obtaining State's written approval. Unless approved in writing by State, all property attached to real property will be considered a real property improvement and shall become property of State at the time this Contract is terminated. 16. SIGNS AND ADVERTISING No signs, logos, names, placards, or advertising matter shall be inscribed, painted, or affixed upon Premises, circulated, or published, including electronically or on the internet, without prior written consent of the State and only consistent with the purposes of the Contract. 17. PHOTOGRAPHY State may grant permits to persons or corporations engaged in the production of still and motion pictures and related activities for the use of the Premises for such purposes when such permission shall not interfere with the primary business of Concessionaire. Such permits shall not be deemed to be a competitive activity with regard to Concessionaire's rights to possession and operation under this Contract. 18. INTELLECTUAL PROPERTY RIGHTS A. Clarify Ownership of Pre-existing Intellectual Property Rights: Other than as specifically identified and authorized in this Contract, no names, logos, trademarks or copyrighted materials belonging to and/or associated with California State Parks shall be used, circulated, or published without the express written consent of the State. Further, no such use, even if permitted herein, or otherwise, shall be deemed to instill in Concessionaire any rights of ownership on such names, logos, trademarks, copyrights or other materials, and any rights to 19 Jan. 28, 2020 Item #19 Page 52 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB D. Concessionaire Rights in Separately Created Works: Any copyrighted materials and/or trademarks developed and created by Concessionaire separate and apart from this Contract, shall belong to Concessionaire, and shall continue in Concessionaire's exclusive ownership upon termination of this Contract. In the event that any trademarks and/or copyrights are created by Concessionaire during the term of this Contract and same are proposed for use in connection with Concessionaire's performance under the Contract, Concessionaire shall promptly notify the State in writing of its intention to retain ownership in the specific trademarks and/or copyrights. 19. GRANT OF STATE'S TRADEMARK.LICENSE Use of the California State Parks Logo is restricted to prior approval through the Concessions Office of the San Diego Coast District. While a non-assignable license will be issued to the concessionaire, use is approved for a specific time period and on a case by case basis only. The California State Parks name, Trademark and brand will not be used on Concessionaire social media pages. State hereby grants Concessionaire, and Concessionaire hereby accepts a non- exclusive, non-assignable license to use the California State Parks Logo (sometimes referred to as the "Trademark" or "Mark"), [as well as other names, logos, or marks] created and owned by State, in accordance with the terms and conditions of the License/Permission for Use of Trademarks which is attached hereto as Exhibit F and is incorporated herein by this reference. After signature by both Concessionaire and the State, this License shall authorize the use of the Trademark and associated goodwill, in connection with this Contra-ct only and as approved by the State. A record of each authorized use by Concessionaire of the Trademark shall be maintained by Concessionaire and by the State. Notice of use shall be provided to the State prior to publication and each use purpose and design will be approved in advance. Concessionaire and the State will use the California State Parks name, Trademark, and brand consistent with the California State Park Brand Standards Handbook available at 21 Jan. 28, 2020 Item #19 Page 54 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB https://www.parks.ca.gov/pages/22374/files/Brand%20Handbook%20January%202007. QQf 20. PARTICIPATION IN STATE PARK MARKETING PROGRAMS Concessionaire acknowledges that the State has an established advertising and marketing program designed to promote additional revenue for the State and to deliver a consistent and positive image to the public, and Concessionaire agrees to participate in this program in the manner described below without compensation from the State for such cooperation. Any programs established following execution of the contract will be implemented upon mutual consent by Concessionaire and State. A. Concessionaire agrees to honor all statewide graphic standards, licensing, and merchandising agreements entered into with corporate sponsors of the State. B. Concessionaire agrees to place on the Premises any advertising that the State approves under this program. Any advertising approved by the State under this program will be placed at State's expense. Concessionaire agrees to rent or sell, along with all other items of merchandise that are part of the Concessionaire's normal and customary inventory, any item of merchandise that the State approves under this program, provided that Concessionaire is authorized to sell or rent it under the terms of the Contract, and the Concessionaire receives reasonable compensation for its sale. 21. MODIFICATIONS, ADDITIONS, TITLE TO IMPROVEMENTS In the event that Concessionaire desires to make modifications, improvements, or additions to the Premises or any part of the Premises, including changes to structural design, required accessibility barrier removal work, landscape design, or interior or exterior fixtures, design, and/or furnishings, (collectively Alteration(s)), the approval in writing of State shall be obtained prior to the commencement of any Alterations. State shall dictate the plan approval process. 22 Jan. 28, 2020 Item #19 Page 55 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Once any Alteration has been approved by State and the work has begun, Concessionaire shall, with reasonable diligence, pursue to completion all approved Alterations. All work shall be performed in a good and workmanlike manner, s_hall substantially comply with plans and specifications submitted to State as required herein, and shall comply with all applicable governmental permits, laws, ordinances, and regulations. It shall be the responsibility of Concessionaire, at its own cost and expense, to obtain all licenses, permits, and other approvals necessary for the construction of approved Alterations. Title to all Alterations and improvements existing or hereafter erected on the Premises, regardless of who constructs such improvements, shall immediately become State's property and, at the end of the Term, shall remain on the Premises without compensation to Concessionaire. Concessionaire agrees never to assail, contest, or resist title to the Alterations and improvements. The foregoing notwithstanding, State may elect, by notice to Concessionaire, that Concessionaire must remove any Alterations that are peculiar to Concessionaire's use of the Premises and are not normally required or used by State and/or future occupants of the Premises. In this event, Concessionaire shall bear the cost of restoring the Premises to its condition prior to the installment of the Alterations. 22. BONDS A. All bonds required under this Contract must be in a form satisfactory to State, issued by a corporate surety licensed to transact surety business in the State of California. B. Performance Bond: Concessionaire, at Concessionaire's own cost and expense, agrees to obtain and deliver to State, prior to the commencement date of this Contract and prior to entering the Premises, and shall maintain in force throughout the term of this Contract, a valid Performance Bond (which shall be renewed annually) in the sum of one-half the Minimum Annual Rent payable to the State. This bond shall ensure faithful performance by Concessionaire of all the covenants, terms, and conditions of this Contract inclusive of, but not restricted to, the payment of all rentals, fees, and charges and prompt 23 Jan. 28, 2020 Item #19 Page 56 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB performance of and/or payment for all maintenance obligations. In lieu of a bond, the Concessionaire may substitute another financial instrument (such as an Irrevocable Standby Letter of Credit), which must be sufficiently secure and acceptable to State. At least thirty (30) days prior to the expiration or termination of said bond or acceptable financial instrument, a signed endorsement or certificate showing that said bond or financial instrument has been renewed or extended shall be filed with the State . Within fifteen (15) days of State's request, Concessionaire shall furnish State with a signed and complete copy of the valid bond or financial instrument. C. Concessionaire acknowledges that allowing the Performance Bond or other security instrument(s) to expire or otherwise terminate and/or allowing the total secured amount to fall below the security required herein will cause State to incur costs and significant risks not contemplated by this Contract, the exact amount of which will be difficult to ascertain. These costs include, but are not limited to, administrative costs and other expenses necessary to ensure continued performance of services for the public and protection of the Premises. Accordingly, if Concessionaire allows the Performance Bond or other security instrument to expire or otherwise terminate and/or allows the total secured amountto fall below the security required pursuant to this Contract, Concessionaire shall pay to State an amount equal to five percent (5%) of the required security or five hundred dollars ($500), whichever is greater. The parties agree that this charge represents a fair and reasonable estimate of the costs State will incur. Acceptance of this charge by State shall not constitute a waiver of Concessionaire's default, nor prevent State from exercising the other rights and remedies available to it under this Contract or applicable law, including the right to terminate this Contract and seek the payment of damages. 23. INSURANCE A. General Provisions 1) Coverage Term -Coverage needs to be in force for the complete term of the contract. If insurance expires during the term of the contract, a 24 Jan. 28, 2020 Item #19 Page 57 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB new certificate must be received by the State at least ten (10) days prior to the expiration of this insurance. Any new insurance must still comply with the original terms of the contract. 2) Policy Cancellation or Termination & Notice of Non-Renewal - Concessionaire and/or Permittee is responsible to notify the State within five (5) business days before the effective date of any cancellation, non- renewal, or material change that affects required insurance coverage. In the event Concessionaire fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Contract upon the occurrence of such event, subject to the provisions of this Contract. 3) Deductible -Concessionaire is responsible for any deductible or self-insured retention contained within their insurance program. 4) Primary Clause -Any required insurance contained in this contract shall be primary, and not excess or contributory, to any other insurance carried by the State. 5) Insurance Carrier Required Rating -All insurance companies must carry a rating acceptable to the Office of Risk and Insurance Management. If the Concessionaire is self-insured for a portion or all of its insurance, review of financial information including a letter of credit may be required. 6) Endorsements -Any required endorsements requested by the State must be physically attached to all requested certificates of insurance and not substituted by referring to such coverage on the certificate of insurance. 7) Inadequate Insurance -Inadequate or lack of insurance does not negate the Concessionaire's obligations under the contract. 8) Satisfying a Self Insured Retention (SIR) -All insurance required by this contract must allow the State to pay and/or act as the Concessionaire's agent in satisfying any SIR. The choice to pay and/or act as the Concessionaire's agent in satisfying any SIR is at the State's discretion. 25 Jan. 28, 2020 Item #19 Page 58 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 9) Available Coverages/Limits -All coverage and limits available to the Concessionaire shall also be available and applicable to the State. 10) Subconcessionaires -In the case of Concessionaire's utilization of subconcessionaires to complete the contracted scope of work, Concessionaire shall include all subconcessionaires as insured's under Concessionaire insurance or supply evidence of insurance to the State equal to policies, coverages and limits required of Concessionaire. 11) Insurance Certificate -Concessionaire shall provide an insurance certificate evidencing the required insurance coverage before work commences under this Agreement. B. Concessionaire shall maintain insurance for all services defined in this Contract and any amendments or other activities authorized in writing by the State. At a minimum, Concessionaire shall provide the following before entering the premises and maintain in full force throughout the term of the Contract: 1) Commercial General Liability Insurance: Concessionaire shall maintain general liability on an occurrence form with limits not less than $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury and property damage liability. The policy shall include coverage for liabilities arising out of premises, operations, independent Concessionaires, products, completed operations, personal and advertising injury, and liability assumed under an insured Agreement. This insurance shall apply separately to each insured against which claim is made, or suit is brought subject to the Concessionaire's limit of liability. 2) Automobile Liability: Concessionaire shall maintain motor vehicle liability with limits not less than $1,000,000 combined single limit per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired, and non-owned motor vehicles. By signing this Contract, the Concessionaire certifies that the Concessionaire and any employees, subconcessionaires or servants possess valid automobile coverage in accordance with California Vehicle 26 Jan. 28, 2020 Item #19 Page 59 of 107 ConcessionaireName Concession Contract P 18CA030 Carlsbad SB and South Carlsbad SB Code Sections 16450 to 16457, inclusive. The State reserves the right to request proof at any time. 3) Workers' Compensation and Employer's Liability Insurance: Concessionaire shall maintain statutory worker's compensation and employer's liability coverage for all its employees who will be engaged in the performance of the Contract. In addition, employer's liability limits of $1,000,000 are required. If applicable, Concessionaire shall provide coverage for all its employees for any injuries or claims under the U.S. Longshoremen's and Harbor Workers' Compensation Act, the Jones Act or under laws, regulations, or statutes applicable to maritime employees. By signing this contract, Concessionaire acknowledges compliance with these regulations. A Waiver of Subrogation or Right to Recover endorsement in favor of the State of California must be attached to certificate. C. The State shall be named as "loss payee" for any Property Insurance claim related to the destruction, loss, or damage of State-owned buildings. In the event of destruction, loss, or damage of any of the State-owned buildings, improvements, or fixtures located on the Premises that the State determines (1) to be essential to the continued operation of the Contract and (2) cannot be repaired within one-hundred-eighty (180) days of the occurrence, the State may terminate this Contract. A decision by the State to terminate the Contract under this provision shall be communicated in writing to Concessionaire as soon as practicable. If the Contract is so terminated, State shall be entitled to the proceeds payable under any applicable insurance policies pertaining to the loss as its interest may appear. Receipt of such proceeds by State shall be in addition to the right of State to pursue whatever other remedies it may have to recover any losses due to the occurrence. If the State determines not to terminate the Contract, then, in State's discretion, any buildings, improvements, or fixtures built in. replacement of any damaged or destroyed property shall be subject to the terms and provisions of this Contract as if they had existed at the onset. In no event shall the provisions of this Section be deemed or construed to 27 Jan. 28, 2020 Item #19 Page 60 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB relieve Concessionaire from the requirement to repair or replace any damaged or destroyed property except as specifically excepted by express terms of this Contract. D. Each policy of liability insurance shall apply separately to each insured against whom claim is made or suit is brought subject to the Concessionaire's limit of liability. The policy must include the State of California, Department of Parks and Recreation, its officers, agents, and employees, as additional insured. These endorsements must be supplied under form acceptable to State. Any subconcessionaires shall be included under Concessionaire's policy or provide evidence of coverage equal to limits and policies required of Concessionaire. E. Each policy shall be underwritten to the satisfaction of the State. Concessionaire shall submit to State at the addresses listed in Section 61, Contract Notice, a signed and complete certificate of insurance with all endorsements required by this Section, showing to the satisfaction of State that such insurance coverage has been renewed or extended. Within fifteen (15) days of State's request, Concessionaire shall furnish State with a signed and complete copy of the required policy. All certificates shall include the associated · concession contract number: P18CA030. 24. HOLD HARMLESS AGREEMENT Concessionaire hereby waives all claims and recourse against the State, including the right to contribution for loss or damage to persons or property arising from, growing out of, or in any way connected with or incident to this Contract, except claims arising from, and to the extent of, the sole gross negligence or willful misconduct of the State, its officers, agents, or employees. Concessionaire shall protect, indemnify, hold harmless, and defend State, its officers, agents, and employees against any and all claims, demands, damages, costs, expenses, attorney fees, expert costs and fees, or liability costs arising out of the development, construction, operation, or maintenance of the Premises property described herein and compliance with all laws, including but not limited to the Americans With Disabilities Act of 1990 as provided for herein, except for 28 Jan. 28, 2020 Item #19 Page 61 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB liability arising out of, and to the extent of, the sole gross negligence or willful misconduct of State, its officers, agents, or employees or other wrongful acts for which the State is found liable by a court of competent jurisdiction. 25. COMPLIANCE WITH LAWS. RULES. REGULATIONS AND POLICIES Concessionaire shall comply with all applicable laws, rules, regulations, and orders existing during the term of this Contract, including obtaining and maintaining all necessary permits and licenses. Concessionaire acknowledges and warrants that it is or will make itself through its responsible concession managers, knowledgeable of all pertinent laws, rules, ordinances, regulations, or other requirements having the force of law affecting the operation of the concession facilities, including but not limited to laws affecting health and safety, hazardous materials, pest control activities, historic preservation, environmental impacts, and State building codes and regulations. Concessionaire further acknowledges State policy for concession employees to maintain compatible relations with State employees and the public. Concessionaire shall submit to State any permit/license violations received from permitting/licensing agencies within thirty (30) days of receipt. The concessionaire shall comply with the State's cultural and natural resource management mandates in the conduct of all activities that may potentially impact cultural, natural, and/or scenic values. These mandates include but are not limited to the California Environmental Quality Act (CEQA/AB 52), Executive Orders W-26-92 and B- 10-11, California Public Resources Code (PRC)§ 5024 and§ 5024.5, the Native American Graves Protection and Repatriation Act (NAGPRA) (PL 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048) and the Secretary of the Interior's Standards for Rehabilitation (36 CFR 67). When an undertaking has a Federal nexus, the National Historic Preservation Act (NHPA)-Section 106 (36 CFR Part 800.1 to 800.16) and the National Environmental Policy Act (42 U.S.C. § 4321) will be required as well. Sensitive information will be safeguarded from general public distribution as required by state and federal law (California Government Code Section 65040.2(9)(3); 6254.1 O; Code of Federal Regulations 43 CFR 7, Section 7.18(a)). 29 Jan. 28, 2020 Item #19 Page 62 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB . 26. DISABILITIES ACCESS LAWS Without limiting Concessionaire's responsibility under this Contract for compliance with all laws, with regard to all operations and activities that are the responsibility of Concessionaire under this Contract, Concessionaire shall be solely responsible for complying with the requirements of the Americans With Disabilities Act of 1990 (ADA) [Public Law 101-336, commencing at §12101 of Title 42, United States Code (and including Titles I, II, and Ill of that law)], the Rehabilitation Act of 1973, and all related regulations, guidelines, and amendments to both laws. With regard to facilities for which Concessionaire is responsible for operation, maintenance, construction, restoration, or renovation under this Contract, Concessionaire also shall be responsible for compliance with Government Code §7250, et seq., Facilities for Handicapped Persons, and any other applicable laws. Written approval from State is required prior to implementation of any plans to comply with accessibility requirements. These facilities must be compliant with the Final Accessibility Guidelines for Outdoor Developed Areas put forth by the United States Access Board . Any concession services provided on a reservation basis shall include an option to indicate whether a visitor/customer requires special accommodation. 27. NONDISCRIMINATION During the performance of this Contract, Concessionaire and its employees shall not unlawfully discriminate, harass, or allow harassment against any employee, applicant for eniployment, or any member of the public because of sex, sexual orientation, race, color, religious creed, marital status, need for family and medical care leave, ancestry, national origin, medical condition (cancer/genetic characteristics}, age (40 and above), disability (mental and physical) including HIV and AIDS, need for pregnancy disability leave, or need for reasonable accommodation. Concessionaire shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. 30 Jan. 28, 2020 Item #19 Page 63 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB For contracts over $100,000 executed or amended after January 1, 2007, the Concessionaire certifies compliance with Public Contract Code §10295.3 concerning domestic partners. Further, as part of compliance with the foregoing, Concessionaire shall comply . with The Americans With Disabilities Act Title II Regulations Part 35 , Subpart B - §35.130 General Prohibitions Against Discrimination, and Subpart D -Program Accessibility §35.149 Discrimination Prohibited. Concessionaire shall comply with the provisions of the Fair Employment and Housing Act (Government Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Division 4, Chapter 5). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code §12990 (a-f), set forth in Chapter 5 of Division 4.1 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Concessionaire and its Subconcessionaires shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreements. Concessionaire shall include the non-discrimination and compliance provisions of this Section in all agreements to perform work under and/or in connection with this Contract. In the event of violation of this Section, the State will have the right to terminate this Contract, and any loss of revenue sustained by the State by reason thereof shall be borne and paid for by the Concessionaire. 28. DRUG-FREE WORKPLACE Concessionaire agrees to comply with Government Code Section 8355 in matters relating to the provision of a drug-free workplace. This compliance is evidenced by the executed Standard Form 21 entitled Drug-Free Workplace Certification, Exhibit E, attached hereto and made a part of the Contract. 31 Jan. 28, 2020 Item #19 Page 64 of 107 ConcessionaireName Concession Contract P18CA030 · Carlsbad SB and South Carlsbad SB 29. CONFLICT OF INTEREST Concessionaire warrants and covenants that no official, employee in the state civil service, other appointed state official, or any person associated with same by blood, adoption, marriage, cohabitation, and/or business relationship: (a) has been employed or retained to solicit or aid in the procuring of this Contract; (b) will be employed in the performance of this Contract without the immediate divulgence of such fact to State. In the event State determines that the employment of any such official, employee, associated person, or business entity is not compatible, Concessionaire shall terminate such employment immediately. For breaches or violation of this Section, State shall have the right both to annul this Contract without liability and, in its discretion , recover from the Concessionaire the full amount of any compensation paid to such official, employee, or business entity. 30. EXPATRIATE CORPORATIONS Concessionaire hereby declares that it is not an expatriate corporation or subsidiary of an expatriate corporation within the meaning of Public Contract Code §10286 and 10286.1 and is eligible to contract with the State. 31. NATIONAL LABOR RELATIONS BOARD CERTIFICATION The Concessionaire, by signing this Contract, does hereby swear, under penalty of perjury, that no more than one final, unappealable finding of contempt of court by a Federal Court has been issued against Concessionaire within the two-year period immediately preceding the date of this Contract because of Concessionaire's failure to comply with a Federal Court order that Concessionaire shall comply with an order of the National Labor Relations Board. 32. CHILD SUPPORT COMPLIANCE ACT In the event the annual gross income generated as a result of this Contract shall exceed One Hundred Thousand Dollars ($100,000.00), Concessionaire acknowledges that: 32 Jan. 28, 2020 Item #19 Page 65 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB A. The Concessionaire recognizes the importance of child and family support relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as obligations and shall comply with all applicable state and federal laws provided in Chapter 8 (commencing with §5200) of Part 5 of Division 9 of the Family Code; and B. The Concessionaire to the best of its knowledge is complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department_. 33. RECORDS AND REPORTS Concessionaire shall keep separate true and accurate books and records showing all of Concessionaire's business transactions under this Contract in a manner that conforms to industry standards and practices and in a manner acceptable to State. Concessionaire shall keep all records for a period of at least four (4) years. In accordance with Public Resources Code §5080.1 B(c), State shall have the right through its representative and at all reasonable times to conduct such audits as it deems necessary and to examine and copy Concessionaire's books and records including all tax records and returns. Concessionaire hereby agrees to make all such records, books, and tax returns available to State upon State's request therefor. Concessionaire further agrees to allow interviews of any employees who might reasonably have information related to such records. Concessionaire will submit to State, no later than May 1st of each year during the term of this Contract, a profit and loss statement for the previous calendar year with proof of verification by a Certified Public Accountant. Such statement shall be submitted on Form DPR 86, Concessionaire's Financial Statement, attached hereto as Exhibit C, or in a format previously approved by the State, and shall contain an appropriate certification that all gross receipts during the yearly accounting period covered by said statement shall have been duly and properly reported to the State. Within forty-five (45) days following the expiration or termination of this Contract, 33 Jan. 28, 2020 Item #19 Page 66 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Concessionaire shall submit to the State a profit and loss statement for the period of operation not previously reported prepared in the manner stated above. Concessionaire shall obtain and install cash registers or other accounting equipment acceptable to the State, through which Concessionaire shall record all receipts from the operation of the concession. This equipment shall be non-resettable and shall supply an accurate recording of all sales on tape or electronic equivalent and produce a receipt for each transaction . All such equipment shall have a customer display that is visible to the public. Concessionaire shall make all cash register tapes or electronic equivalent available to the State upon State's request. Concessionaire shall provide a cash register receipt to each customer setting forth the full amount of a sale as well as the time and date of transaction. Upon such time the State's Point of Sale (POS) system, or equivalent, is offered to the Concessionaire, the Concessionaire is obligated to use the system and pay any applicable transaction fees. Concessionaire shall record all gross receipts from the operation of the concession. Records shall supply an accurate recording of each sale as a paper receipt for each transaction. Cash registers or pre-numbered receipt books shall be used to document all sales. Receipt books shall provide duplicate receipts in carbon .copy for record purposes. Concessionaire shall record in receipt books the purchase amount and name and address of each purchaser. Concessionaire shall submitto State immediately upon receipt the manifest or other documentation of the purchase of all receipt books and the books' corresponding serial numbers. A report containing the serial number range (beginning number and ending number), missing numbers, duplicate numbers, any other number inconsistencies, or a statement that all sets are serial numbered as specified with NO inconsistencies shall be submitted to State upon request. Concessionaire shall make all accounting records available to the State upon State's request. 34. TAXES In accordance with Public Resources Code §5080.1 B(b), copies of all sales and use tax returns filed with the California Department of Tax and Fee Administration shall be concurrently submitted to State. Any and all other tax filing submitted by 34 Jan. 28, 2020 Item #19 Page 67 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Concessionaire to the State Board of Equalization, the Employment Development Department, the Franchise Tax Board, or any other governmental agency shall also be concurrently submitted to the State. A. By signing this Contract, Concessionaire acknowledges that occupancy interest and rights to do business on state property being offered Concessionaire by this Contract may create a possessory interest as that term is defined in Revenue and Taxation Code §107.6, which possessory interest may subject Concessionaire to liability for the payment of property taxes levied on such possessory interest. B. Concessionaire agrees to pay all lawful taxes, assessments, or charges that at any time may be levied by the State, County, City, or any tax or assessment levying body upon any interest in or created by this Contract, or any possessory right that Concessionaire may have in or to the premises covered hereby, or the improvements thereon by reason of Concessionaire's use or occupancy thereof or otherwise, as well as all taxes, assessments, and charges on goods, merchandise, fixtures, appliances, equipment, and property owned by Concessionaire in or about the Premises. 35. PERFORMANCE EVALUATIONS AND INSPECTIONS As part of its administration of this, Contract and upon 48-hour notice, State will conduct periodic inspections of concession facilities, equipment, services, and programs and prepare written performance evaluations based upon its observations. A Concessionaire Performance Rating (DPR Form 531) attached hereto as Exhibit D, or other similar format(s) as may be adopted by the State Will be utilized for evaluation purposes. In the event of actual or potential health or safety issues, State further reserves the right of ingress and egress without notice to inspect concession operations for the purposes of evaluating Concessionaire's performance of the terms and conditions of this Contract; to inspect, investigate, and/or survey the Premises; and to do any work thereon of any nature necessary for preservation, maintenance, and operation of the California State Park System. Concessionaire agrees to cooperate with State in all respects related to the implementation of State's Concession Performance 35 Jan. 28, 2020 Item #19 Page 68 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB Evaluation program and with State's activities on the Premises. State shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of State's entry in the Premises as provided herein, except damage resulting from the active negligence or willful misconduct of State or its authorized representatives. The absence of Performance Evaluations defaults to a rating of "Excellent" and the maximum number of points awarded to the incumbent in the Incumbent Preference category during the evaluation phase of future requests for proposals. 36. DEFAULT BY CONCESSIONAIRE A. Defaults: The occurrence of any one of the following shall constitute a default and breach of this Contract by Concessionaire: 1) Failure to Pay Rent: Any failure of Concessionaire to timely pay any rent due or any other monetary sums required to be paid hereunder where such failure continues for a period of ten (10) consecutive days after such sums are due. 2) Absence from Premises: Any complete absence by Concessionaire or its agents and employees from the Premises for thirty (30) consecutive days or longer. The Premises shall be deemed abandoned after State has followed the procedures set forth in Civil Cqde §1951.3. 3) Nuisance: Should Concessionaire create or allow to be created a nuisance on the Premises, State may declare an immediate event of default and enter upon and take possession and/or demand an assignment of the right to operate the Premises without notice to Concessionaire. For the purpose of this paragraph, "nuisance" consists of an egregious activity that threatens the health, welfare, and safety of the public. Concessionaire shall immediately vacate the Premises and remove all personal property within thirty (30) days after State's declaration of default. 4) Failure to Observe Other Provisions: Any failure by Concessionaire to observe or perform another provision of this Contractwhere such failure 36 Jan. 28, 2020 Item #19 Page 69 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB B. continues for twenty (20) consecutive days after written notice thereof by State to Concessionaire; this notice shall be deemed to be the notice required under California Code of Civil Procedure §1161. However, if the nature of Concessionaire's default is such that it cannot reasonably be cured within the twenty (20) day period, Concessionaire shall not be deemed to be in default if it is determined at the sole discretion of State that Concessionaire has commenced such cure within the twenty (20) day period and thereafter continues to diligently prosecute such cure to completion to the satisfaction of State. 5) Involuntary Assignments, Bankruptcy: State and Concessionaire agree that neither this Contract nor any interest of Concessionaire · hereunder in the Premises shall be subject to involuntary assignment or transfer by operation of law in any manner whatsoever, including, without limitation, the following: (a) transfer by testacy or intestacy; (b) assignments or arrangements for the benefit of creditors; (c) levy of a writ -of attachment or execution on this Contract; (d) the appointment of a receiver with the authority to take possession of the Premises in any proceeding or action in which Concessionaire is a party; or (e) the filing by or against Concessionaire of a petition to have Concessionaire adjudged a bankrupt, or of a petition for reorganization or arrangement under any law relating to bankruptcy. Any such involuntary assignment or transfer by operation of law shall constitute a default by Concessionaire and State shall have the right to elect to take immediate possession of the Premises, to terminate this Contract and/or invoke other appropriate remedies as set forth below, in which case this Contract shall not be treated as an asset of Concessionaire. Notices of Default: Notices of default shall specify the alleged default and the applicable contract provision and shall demand that Concessionaire perform the provisions of this Contract within the applicable time period or quit the Premises. No such notice shall be deemed a forfeiture or a termination of this Contract unless State specifically so states in the notice. 37 Jan. 28, 2020 Item #19 Page 70 of 107 ConcessionaireName Concession Contract_P18CA030 Carlsbad SB and South Carlsbad SB 37. STATE'S REMEDIES In the event of default by Concessionaire, State shall have the following remedies. These remedies are not exclusive; they are cumulative and are in addition to any other right or remedy of State at law or in equity. A. Collection of Rent: In any case where State has a cause of action for damages, State shall have the privilege of splitting the cause to permit the institution of a separate suit for rent due hereunder, and neither institution of any suit, nor the subsequent entry of judgment shall bar State from bringing another suit for rent; it being the purpose of this provision to provide that the forbearance on the part of State in any suit or entry of judgment for any part of the rent reserved under this Contract, to sue for, or to include in, any suit and judgment the rent then due, shall not serve as defense against, nor prejudice a subsequent action for, rent or other obligations due under the Contract. The claims for rent may be regarded by State, if it so elects, as separate claims capable of being assigned separately. B. Maintain Contract in Effect: The State has the remedy described in California Civil Code §1951.4 (lessor may continue lease in effect after lessee's breach or abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations). The following do not constitute a termination of the Concessionaire's right to possession: (1) Acts of maintenance or preservation or efforts to relet the Premises; (2) The appointment of a receiver upon initiative of the State to protect State's interests under the Contract; (3) Withholding consent to a subletting or assignment so long as such · consent is not unreasonably withheld. C. Continued Performance: At State's option, Concessionaire shall continue with its responsibilities under this Contract during any dispute. D. Termination of Concessionaire's Right to Possession: Upon an event of default, State may terminate Concessionaire's right to possession of the Premises at any time by written notice to Concessionaire. In the absence of such written notic~ from State, no act by State, including, but not limited to, acts 38 Jan. 28, 2020 Item #19 Page 71 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB of maintenance, efforts to relet and/or assign rights to possession of the Premises, or the appointment of a receiver on State's initiative to protect State's interest under this Contract shall constitute an acceptance of Concessionaire's surrender of the Premises, or constitute a termination of this Contract or of Concessionaire's right to possession of the Premises. Upon such termination, State has the right to recover from Concessionaire: 1) the worth, at the time of the award, of the unpaid rent that had been earned at the time of termination of this Contract; 2) the worth, at the time of the award, of the amount by which the unpaid rent that would have been earned after the date of termination of this Contract until the time of the award exceeds the amount of loss of rent that Concessionaire proves could have reasonably been avoided; 3) the worth, at the time of the award, of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of the loss of rent that Concessionaire proves could have been reasonably avoided; and 4) any other amount necessary to compensate State for all the detrir:nent proximately caused by Concessionaire's failure to perform its obligations under this Contract, which, without limiting the generality of the foregoing, includes any cost and expenses incurred by the State in recovering possession of the Premises, in maintaining or preserving the Premises after such default, in preparing the Premises for a new concessionaire, in making any repairs or alterations to the Premises necessary for a new concessionaire, in making any repairs or alterations to the Premises, and costs of clearing State's title of any interest of Concessionaire, commissions, attorneys' fees, architects' fees, and any other costs necessary or appropriate to make the Premises operational by a new concessionaire. "The worth, at the time of the award," as used herein above shall be computed by allowing interest at the lesser of a rate of ten percent (10%) per annum or the maximum legal rate. 39 Jan. 28, 2020 Item #19 Page 72 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB E. Assignment at State's Direction: In the event of a default by Concessionaire, when cure is not received and acknowledged by State after having provided notice of the breach as provided herein above, Concessionaire shall, in addition to the damages provided for herein, be obligated to assign all rights to occupy, possess, and operate on and in the Premises to State's designee within thirty (30) days of receipt of written demand by State. Concessionaire shall further remove itself and its personal property from the Premises within the same time frame. Concessionaire agrees to execute all documents necessary to effectuate and implement this provision. Upon such assignment, all rights of Concessionaire under the Contract shall transfer to the assignee. Any designated assignee, as provided for herein, shall take and operate the concession under the same terms and conditions as those set forth herein, except for requirements that have already been performed and are no longer applicable. However, Concessionaire shall not be relieved of obligations incurred. An assignment of the Contract pursuant to the terms hereof shall not cause the Contract to terminate and shall not work a merger. F. Receiver: If Concessionaire is in default of this Contract, State shall have the right to have a receiver appointed to collect rent and conduct Concessionaire's business or to avail itself of any other pre-judgment remedy. Neither the filing of a petition for the appointment of a receiver nor the appointment itself shall constitute an election by State to terminate this Contract. G. Right to Cure Concessionaire's Default: At any time after Concessionaire commits a default, State can cure the default at Concessionaire's cost. If State, at any time by reason of Concessionaire's default, pays any sum or does any act that requires the payment of any sum, the sum paid by State shall be due immediately from Concessionaire to State, and if paid at a later date shall bear interest at the rate of ten percent (10%) per annum from the date the sum is paid by State until State is reimbursed by Concessionaire. Any such sum shall be due as additional rent. 40 Jan. 28, 2020 Item #19 Page 73 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB H. Personal Property of Concessionaire: In the event any personal property or trade fixtures of Concessionaire remain at the Premises after State has regained possession or after an assignment is accomplished, that property or those fixtures shall be dealt with in accordance with the provisions for Surrender of the Premises provided below. 1) State's Obligations After Default: State shall be under no obligation to observe or perform any covenant of this Contract -on its part to be observed or performed that accrues after the date of any default by Concessionaire. Such nonperformance by State shall not constitute a termination of Concessionaire's right to possession nor a constructive eviction. 2) No Right of Redemption: Concessionaire hereby waives its rights under California Code of Civil Procedure §1174 and 1179 or any present or future law that allows Concessionaire any right of redemption or relief from forfeiture in the event State takes possession of the Premises by reason of any default by Concessionaire. 3) Other Relief: All monetary obligations of the Concessionaire of any kind shall be considered rent. State shall have such rights and remedies for failure to pay such monetary obligations as State would have if Concessionaire failed to pay rent due. The remedies provided in this Contract are in addition to any other remedies available to State at law, in equity, by statute, or otherwise. 4) No Buy-out: In accordance with Public Resources Code §5080.18 (h), where the Contract has been terminated due to a breach on the part of the Concessionaire under any terms of this Contract the State shall not be obligated to purchase any improvements made by Concessionaire or to pay the Concessionaire for said improvements before or after taking possession of the Premises. 41 Jan. 28, 2020 Item #19 Page 74 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 38. DEFAULT BY STATE State shall not be in default of the performance of any obligation required of it under this Contract unless and until it has failed to perform such obligation for more than thirty (30) days after written notice by Concessionaire to State specifying the alleged default and the applicable contract provision giving rise to the obligation. However, if the nature of State's obligation is such that more than thirty (30) days is required for its performance, then State shall not be deemed in default if it shall commence performance within such 30-day period and thereafter diligent!y prosecute the same to completion. 39. SURRENDER OF THE PREMISES: HOLDING OVER A. Surrender: On expiration or within thirty (30) days after earlier termination of the Contract, Concessionaire shall surrender the Premises to State with all fixtures, improvements, and Alterations in good condition, except for fixtures, improvements, and Alterations that Concessionaire is obligated to remove. Concessionaire shall remove all of its personal property and shall perform all restoration required by the terms of this Contract within the above stated time unless otherwise agreed to in writing. 1) Personal Property: All of Concessionaire's personal property remaining on the Premises beyond such time specified in this Section shall be dealt with in accordance with California Code of Civil Procedure §1174 and California Civil Code §1980, or such other laws as may be enacted regarding the disposition of Concessionaires' property remaining at the Premises. Concessionaire waives all claims against State for any damage to Concessionaire resulting from State's retention or disposition of Concessionaire's personal property. Concessionaire shall be liable to State for State's costs in storing, removing, and disposing of Concessionaire's personal property or trade fixtures. 2) Social Media Accounts and Websites: Concessionaire agrees to shut-down, remove, and delete all social media accounts related to the Premises operated under this Contract. 42 Jan. 28, 2020 Item #19 Page 75 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB B. 3) Failure to Surrender: If Concessionaire fails to surrender the Premises to State on the expiration, assignment, or within thirty (30) days after earlier termination of the term as required by this Section, Concessionaire shall hold State harmless for all damages resulting from Concessionaire's failure to surrender the Premises. Holding Over: After the expiration or earlier termination of the term and if Concessionaire remains in possession of the Premises with State's implied or express consent, such possession by Concessionaire shall be deemed to be a _ temporary tenancy terminable on thirty (30) days written notice given at any time by either party. During such temporary tenancy, the Minimum Rent shall be increased by Consumer Price Index adjustments required by this Contract in accordance with Section 4, Rent, unless otherwise agreed to in writing by State. Concessionaire shall pay such rent and all other sums required to be paid hereunder monthly on or before the fifteenth day of each month . All other provisions of this Contract except those pertaining to the term shall apply to the month-to-month tenancy. 40. NO RECORDATION A. No Recordation: This Contract shall not be recorded. 41. ATTORNEY FEES Concessionaire shall reimburse the State on demand for all reasonable attorney fees (including attorney fees incurred in any bankruptcy or administrative proceeding or in any appeal) and expenses incurred by State as a result of a breach or default under this Contract. If Concessionaire becomes the prevailing party in any legal action brought by State, Concessionaire shall be entitled to recover reasonable attorney fees and expenses incurred by Concessionaire and need not reimburse the State for any attorney fees and expenses incurred by the State. 43 Jan. 28, 2020 Item #19 Page 76 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 42. WAIVER OF CLAIMS The Concessionaire hereby waives any claim against the State of California, its officers, agents, or employees for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Contract or any part thereof, or by any judgment or award in any suit or proceeding declaring this Contract null, void, or voidable, or delaying the same or any part thereof from being carried out. 43. WAIVER OF CONTRACT TERMS Unless otherwise provided by this Contract, no waiver by either party at any time of any of the terms, conditions , or covenants of this Contract shall be deemed as a waiver at any time thereafter of the same or of any other term, condition, or covenant herein contained, nor of the strict and prompt performance thereof. No delay, failure, or omission of the State to re-enter the Premises or to exercise any right, power, privilege, or option arising from any breach, nor any subsequent acceptance of rent then or thereafter accrued shall impair any such right, power, privilege, or option or be construed as a waiver of such breach or a relinquishment of any right or acquiescence therein. No notice to the Concessionaire shall be required to restore or revive time as of the essence after the waiver by the State of any breach. No option, right, power, remedy, or privilege of the State shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options, and remedies given to the State by this Contract shall be deemed cumulative. 44. INTERPRETATION OF CONTRACT This Contract is made under and is subject to the laws of the State of California in all respects as to interpretation, construction, operation, effect, and performance. 45. DURATION OF PUBLIC FACILITIES By entering into this Contract, State makes no stipulation as to the type, size, location, or duration of public facilities to be maintained at this unit, or the continuation of State ownership thereof, nor does the State guarantee the accuracy of any financial 44 Jan. 28, 2020 Item #19 Page 77 of 107 Concessionaire Name Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB or other factual representation, such as visitation or anticipated revenues, that may be m;3de regarding this concession. 46. EMINENT DOMAIN If, during the term of this Contract, any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to State. 47. TEMPORARY TENANCY This tenancy is of a temporary nature and the parties to this Contract agree that no relocation payment or relocation advisory assistance will be sought or provided in any form as a consequence of this tenancy. 48. SECTION TITLES The Section titles in this Contract are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope or intent of this Contract, or in any way affect this Contract. 49. INDEPENDENT CONCESSIONAIRE In the performance of this Contract, Concessionaire and the agents and employees of Concessionaire shall act in an independent capacity and not as officers or employees or agents of the State. 50. ASSIGNMENTS AND SUBCONCESSIONS A. No transfer, assignment, or corporate sale or merger by the Concessionaire that affects this Contract or any part thereof or interest therein directly or indirectly, voluntarily or involuntarily, shall be made unless such transfer, assignment, or corporate merger or sale is first consented to in writing by State. Before State considers such assignment, evidence must be given to State that the proposed assignee qualifies as a "best responsible bidder" under the terms of §5080.05 of the Public Resources Code or "best responsible person or entity submitting a proposal" under the terms of §5080.23 of the Public Resources Code and the Bid Prospectus or Request for Proposals under 45 Jan. 28, 2020 Item #19 Page 78 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB which this Contract was awarded and executed. To be effective, any such assignment must comply with applicable law including, without limitation on generality, Public Resources Code §5080.20 and 5080.23. B. Portions of this concession may be operated by others under a subconcession agreement with prior written consent of State under the following conditions: (1 ). The subconcessionaire must be qualified. (2). The subconcessionaire's interest shall be subordinate and in all ways subject to the terms of this contract. (3). Concessionaire's gross receipts shall include all gross receipts of the subconcessionaire as part of the rent calculation. Subconcessionaire's gross receipts shall be listed as a separate line item on the DPR 86 and DPR 54 reporting forms. 51. MODIFICATION OF CONTRACT This concession contract contains and embraces the entire agreement between the parties hereto and neither it, nor any part of it, may be changed, altered, modified, limited, or extended orally or by any agreement between the parties unless such agreement be expressed in writing, signed, and acknowledged by the State and the Concessionaire or their successors in interest. An amendment is required to change the Concessionaire's name as listed in this Contract upon receipt of legal documentation to support such change. Notwithstanding any of the provisions of this Contract, the parties may hereafter, by mutual consent expressed in writing, agree to modifications thereof, additions thereto, or terminations thereof, which are not forbidden by law. Such written modifications or additions to this Contract shall not be effective until signed and acknowledged by the State and Concessionaire and approved in writing by the Department of General Services and the Attorney General of the State of California. The State shall have the right to grant reasonable extensions of time to Concessionaire for any purpose or for the performance of any obligation of Concessionaire hereunder. 46 Jan. 28, 2020 Item #19 Page 79 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB 52. UNENFORCEABLE PROVISION In the event that any provision of this Contract is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Contract have force and effect and shall not be effected thereby. 53. APPROVAL OF CONTRACT This Contract, amendments, or modifications thereof shall not be effective until approved by Department of General Services and the Attorney General of the State of California. 54. CONTRACT NOTICE Any notices required to be given or that may be giveri by either pa~y to the other shall be deemed to have been given when made in writing and deposited in the United States mail, postage prepaid, and addressed as follows: Concessionaire at: State at: Copy to: CT-ConcessionaireName CT-ConcessionContactAddress CT-ConcessionCityState CT-ConcessionZip CT-ConcessionairePhone CT-ConcessionaireEmail Department of Parks and Recreation 4477 Pacific Highway San Diego, CA 92110 619-688-3343 jennifer.calder@parks.ca.gov Department of Parks and Recreation Partnerships Division P.O. Box 942896 Sacramento, California 94296-0001 916-653-7733 Partnerships@parks.ca.gov 47 Jan. 28, 2020 Item #19 Page 80 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB The address to which notices shall or may be mailed as aforesaid by either party shall or may be changed by written notice given by such party to the other, but nothing in this Section shall preclude the giving of any such notice by personal service. 55. STATE'S DISTRICT SUPERINTENDENT For the purposes of this Contract, the District Superintendent is the State representative responsible for the Premises. The District Superintendent is charged with the day-to-day administration of this Contract and is the Concessionaire's initial contact with the State for information, contract performance, and other issues as might arise. The District Superintendent may delegate these responsibilities to a Sector or Park Superintendent or other individual. 48 Jan. 28, 2020 Item #19 Page 81 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB IN WITNESS WHEREOF, the parties hereto warrant that they respectively have the requisite authority to enter this Contract, binding the named parties for which they sign, and have executed this concession contract at the respective times set forth below. CONCESSIONAIRE: Signed: __________ _ Name: ----------- Title: ------------ Date: ----------- APPROVED: ATTORNEY GENERAL: Approved as to legal sufficiency in accordance with the requirements of Sections 5080.02-5080.21 of the Public Resources Code. XAVIER BECERRA, Attorney General of the State of California By:------------ Deputy Attorney General Dated: ----------- STATE OF CALIFORNIA DEPARTMENT OF PARKS & RECREATION Signed: __________ _ Name: ------------ Title: ------------ Date: ------------ APPROVED: DEPARTMENT OF GENERAL SERVICES: 49 Jan. 28, 2020 Item #19 Page 82 of 107 ConcessionaireName Concession Contract P18CA030 Carlsbad SB and South Carlsbad SB EXHIBIT 8-continued DPR 54 COMPLETION INSTRUCTIONS 1. Provide the month and year of operation for which this report is being prepared. 2. Provide full name of the concession and the name and address of the concessionaire, including city, state and zip code. 3. Include all revenue for the month for each appropriate category. For "Vending Machine" revenue, please include the following sources: Ice machines Newspaper vending machines Map and brochure vending machines Grab boxes Firewood dispensers Air compressors Washing machines and dryers Do not include the following sources as "Vending Machine" revenue: Park UR Self machines -Pay showers -Iron rangers 4. Types of revenue that might be recorded on a "per unit'' basis include: -Petroleum products (per gallon) -Group tours (per adult or children's ticket) 5. Complete the "Maintenance Fees" and "Seasonal Concessions" sections of the form if your concession contract require~ a maintenance fee allocation and/or if your concession operates on a seasonal basis. 6. Sign and date the form and provide the preparers title and telephone number. COMMENTS/EXPLANATIONS: OPR 54 (Back) 52 Jan. 28, 2020 Item #19 Page 85 of 107 CATEGORIES E s NI NON COM NA COMMENTS ,•,•,•,•,•······· FIRE SAFETY/PREVENTION 4 3 1 0 )]/[{ >-GAS/ELECTRIC 4 3 1 0 ):f I-w u.. ]]: < GENERAL SAFETY 4 3 1 0 Cl) OTHER: 1/i 4 3 1 0 INTERIOR- HOUSEKEEPING/CLEANLINESS 4 3 1 0 II?t== INTERIOR-4 3 1 0 }}/it w FACILITY MAINTENANCE u EXTERIOR-,•,•,•,•,•.•,•··· z 4 3 1 0 trtrr < HOUSEKEEPING/CLEANLINESS z w EXTERIOR-•]([::: I-4 3 1 0 z FACILITY MAINTENANCE ~ GROUNDS-)!:} :!: 4 3 1 0 >-HOUSEKEEPING/CLEANLINESS I-:::::i GROUNDS-4 3 1 0 JJ u < FACILITY MAINTENANCE u.. JJ MAINTENANCE PLAN 4 3 1 0 OTHER: bl 4 3 1 0 :!: COSTUMES 4 3 1 0 ? < a:: MERCHANDISE AND { C) Q)' 4 3 1 0 o-INTE_RPRETIVE PLAN a:: ..Q ::: c.. ~ FURNISHINGS AND 4 3 1 0 w::::: > §: INTERPRETIVE PLAN i== ~ EVENTS/ACTIVITIES AND 4 3 1 0 :: w fii ~~ INTERPRETIVE PLAN a::'--IMPLEMENTATION OF 4 3 1 0 ft ::: w I-INTERPRETIVE PLAN :?: OTHER: [J 4 3 1 0 TOTAL POINTS PER COLUMN I>>> [if ?ttt)?i?H:Ji JI !){(:!( !J :J] ::•:J}t> <tn 0 0 PAGE2 ONLY TOTAL POINTS PER COLUMN i:::=:::::::::: 11:::::urn::tJtt::rnrn:u: It :ttitt JL rn::r n:r:::r:r ::::=:::=::::::::: PAGE 1 + PAGE 2 0 1::::::::::::::: ?}}= TOTAL POINTS RECEIVED MAXIMUM POINTS POSSIBLE PERCENT RA TING ARE THERE ANY NONCOMPLIANCE OR ( FROM.ALL CATEGORIES FOR RATED CATEGORIES ) UNACCEPTABLE RATINGS IN ANY CATEGORY?* -X 100 = #DIV/0! ·D Yes □ No OVERALL RATING (Based on percent rating) 0 EXCELLENT(90% to 100%) 0 SATISFACTORY(70% to 89%) □ NEEDS IMPROVEMENT(60% to 69%) 0 UNACCEPTABLE (less than 60%) RATER'S SIGNATURE TITLE DATE RATER DISCUSSED REPORT WITH CONCESSIONAIRE? D Yes. Date: □ No In signing this report I do not necessarily agree with the conclusion of the rater. CONCESSIONAIRE'S SIGNATURE TITLE DATE *NOTE: A rating of UNACCEPTABLE or NONCOMPLIANCE in any category will result in an overall rating of no higher than NEEDS IMPROVEMENT. DPR 531 Original --District; Copies to Central Records and Concessionaire PAGE 2 of2 58 Jan. 28, 2020 Item #19 Page 91 of 107 EXHIBIT E -DRUG FREE WORKPLACE CERTIFICATION ST ATE OF CALIFORNIA DRUG-FREE WORKPLACE CERTIFICATION STD. 21 (Rev. 12/93)(CA ST PKS, EXCEL 4/9/1999) CERTIFICATION I, the official named below, hereby swear that I am duly authorized to legally to bind the contractor or grant recipient to the certification described below. I am fully aware that this certification, executed on the date below, is made under penalty ofpe,jury under the laws of the State of California. CONTRACTOR/BIDDER FIRM NAME FEDERAL ID NUMBER BY (Authorized Signature) DATE EXECUTED PRINTED NAME AND TITLE OF PERSON SIGNING TELEPHONE NUMBER (Include Area Code) T!TLE CONTRACTOR/BIDDER FIRM'S MAILING ADDRESS The contractor or grant recipient named above hereby certifies compliance with Government Code Section 8355 in matters relating to providing a drug-free workplace. The above named contractor or grant recipient will: 1. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations, as required by Government Code Section 8355(a). 2. Establish a Drug-Free Awareness Program as required by Government Code Section 8355(b), to inform employees about all of the following: (a) The dangers of drug abuse in the workplace, (b) The person's or organization's policy in maintaining a drug-free workplace, ( c) Any available counseling, rehabilitation and employee assistance programs, and ( d) Penalties that may be imposed upon employees for drug abuse violations. 3. Provide as required by Government Code Section 8355(c), that everyone who works on the proposed contract or grant: (a) Will receive a copy of the company's drug-free workplace policy statement, and (b) Will agree to abide by the terms of the company's statement as a condition of employment on the contract or grant. 4. At the election of the contractor or grantee, from and after the "Date Executed" and until (NOT TO EXCEED 36 MONTHS), the state will regard this cetiificate as valid for all contracts'00,~'grants entered into between the contractor or grantee and this state agency without requiring the contractor or grantee to provide a new and individual certificate for each contract or grant. If the contractor or grantee elects to fill in the blank date, then the terms and conditions of this certificate shall have the same force, meaning, effect and enforceability as if a cetiificate were separately, specifically, and individually provided for each contract or grant between the contractor or grantee and this state agency. 59 Jan. 28, 2020 Item #19 Page 92 of 107 EXHIBIT F -LICENSE/PERMISSION FOR USE OF TRADEMARKS LICENSE/PERMISSION FOR USE OF TRADEMARKS StateofCalifornia-TheResourcesAgency DEPARTMENT OF PARKS AND RECREATION REQUESTER NAME _______________________________ hereafter called the "Licensee." Subject to the terms and conditions of this Agreement, the California Department of Parks and Recreation (the "STATE") grants permission to use certain trademarks (the "Mark(s)"), created and owned by the STATE, in accordance with the terms and conditions of this License, identified as follows: California State Parks logo USPTO Registration No. 2437051 [State Can Insert Additional Marks it wants to license, such as concession name and/or logos] See Attachment "1" for additional provisions regarding use of the logo, including specifications, registration, and logo usage guidelines. ST ATE hereby grants to the Licensee the non-exclusive, non-transferable, non-sublicenseable right and license to use the Mark pursuant to the terms and conditions of this license from and including _______ through -----~ intended to match and run concurrent with Licensee's Concession Contract with STA TE. This license shall authorize the use of the Mark(s) and associated goodwill, in connection with the following only: [Consistent with the terms and conditions, and limited to the term of, the Concession Contract between the parties, Licensee may only use the Mark(s) to promote Licensee as a Concessionaire of the Department. Any additional use shall require written permission and/or the payment of fees. This pennission is non-transferable and non- sublicenseable (except as described above). This is not an exclusive privilege to the user, and STATE reserves the right to make the Mark(s) available to others. Licensee shall not modify or alter the Mark(s) in any way without prior written approval from STATE. All uses of the Mark must be accompanied by the trademark symbol(®). IN NO EVENT SHALL THE DEPARTMENT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT. THE DEPARTMENT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS ORIMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. PERMISSION TO USE THE MARK IS GRANTED "AS IS." Licensee agrees to indemnify, protect, hold harmless, and defend STATE from and against any liability that might arise from any and all Lise of the Mark by Licensee, its licensees, successors or assigns. Licensee agrees to pay STATE, upon acceptance of this agreement, all expenses as follows: No additional expenses. Goodwill and Quality Control A. Licensee recognizes· the great value and goodwill associated with the Mark and acknowledges that such goodwill belongs to STATE. Licensee further acknowledges that the Mark has acquired a secondary meaning among the public. Licensee agrees not to take any action that could be detrimental to the goodwill associated with the Mark or to STATE. B. Before Licensee uses the Mark on any materials, it shall send a copy of each representative item showing the proposed use to, and obtain written approval from, STA TE. STATE shall not unreasonably withhold delay such approval. Third Party Infringement STATE, at its sole discretion, shall take whatever action it deems advisable in connection with any unauthorized use of the Mark(s) by a third party. STATE shall bear the entire cost and expense associated with any such action, and any recovery or compensation that may be awarded or otherwise obtained as a result of any such action shall belong to STATE. The provisions above constitute page 1 of 2 of this agreement. Page 2 must be initialed by both parties for this agreement to be valid. AGREED AND ACCEPTED State of California LICENSEE Deoartment of Parks and Recreation BY BY PRINTED NAME OF PERSON SIGNING PRINTED NAME AND TITLE OF PERSON SIGNING TITLE DISTRICT/SECTION ADDRESS PHONE NO. EMAIL PHONE NO. 60 Jan. 28, 2020 Item #19 Page 93 of 107 LICENSE/PERMISSION FOR USE OF TRADEMARKS State of California -The Resources Agency DEPARTMENT OF PARKS AND RECREATION The provisions below constitute page 2 of 2 ofthis agreement. This page must be initialed by both parties forth is agreement to be valid. Ownership Rights Licensee acknowledges the STATE's exclusive right, titles and interest in and to the Mark. Licensee further covenants that it shall not at any time challenge or contest the validity, ownership, title and registration of STATE in and to the intellectual property or the validity of this License. Licensee's use of the Mark shall inure to the benefit of the Department. If Licensee acquires any trade rights, trademarks, equities, titles, or other rights in and to the Mark, by operation of law, usage, or otherwise, Licensee shall, upon the expiration of this License, assign and transfer the same to STATE without any consideration other than the consideration of the License. All rights not specifically transferred by this License are reserved to STATE. Termination A. The Department shall have the right to terminate the License without cause upon sixty (60) days' notice if the Licensee's Concession Contract with the ST ATE, whereupon all rights granted herein shall revert immediately to STATE. B. Upon early termination by STATE or by expiration of the License, the License shall terminate, Licensee's rights shall cease immediately and Licensee shall discontinue all use of the Marks and/or other licensed property at once. Licensee shall dispose of all goods, works and materials bearing or relating to the Mark in accordance with STA TE's instructions and consistent with the terms and conditions of the Concession Contract. No Partnership or Agency Created Nothing herein shall be construed to constitute the parties hereto as partners or joint venturers, nor shall any similar relationship be deemed to exist between them. Further, nothing in this License shall make one party the agent of the other, and neither party has power or authority to bind the other. Applicable Law This License shall be construed in accordance with the laws of the State of California; Licensee consents to jurisdiction of the courts of Sacramento, California. · Integration This License and Attachment 1 attached hereto and the Concession Contract constitute the entire agreement between the parties hereto and shall not be modified, amended, or changed in any way except by written agreement signed by both parties hereto. This License shall be binding upon and shall inure to the benefit of the parties, their successors, and assigns. Notices All notices and reports to be sent to the Department shall be in writing and shall be mailed or delivered to California Department of Parks and Recreation, Partnerships Division,PO Box 942896, Sacramento CA 94296-0001 . All notices to be sent to Licensee shall be mailed or delivered to the address specified on the first page of the License form. All notices and reports shall be deemed delivered immediately upon personal delivery , or, if mailed, three (3) days after being deposited in the United States mail system, postage prepaid, first class mail, and properly addressed. The Department and Licensee shall provide notice to the other of any change in address. Modifications This License may not be modified except by a written instrument, signed by both parties, making specific reference to this License by date, parties and subject matter. Severability The invalidity or unenforceability of any provision of this License, or the invalidity or unenforceability of any provision ofthis License as applied to a particular occurrence or circumstance, shall not affect the validity or enforceability of any of the other provisions of this License or any other applications of such provisions, as the case may be. Attorney's Fees lflitigation becomes necessary to secure compliance with the terms and conditions of this License, to recover damages and/or to terminate the License, the prevailing party in any legal action shall be entitled to recover reasonable attorney fees and expenses incurred. AGREED AND ACCEPTED LICENSOR'S INITIALS I DATE I LICENSEE'S INITIALS 61 Jan. 28, 2020 Item #19 Page 94 of 107 EXHIBIT G -CONSUMER PRICE INDEX ADJUSTMENT FORMULA Consumer Price Index (CPI) adjustments applied to the $$$ Minimum Annual Rent shall be based on changes in the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for All Urban Consumers, San Diego All Items, (1982-84=100). Calculations shall employ the following formula: "Base Index" = "Base Rent" = "Year End Index" = CPI Index published for the month preceding the commencement date of this Contract or the month preceding the beginning of the Contract Year of the previous CPI adjustment. Minimum$$$ rent during the first Contract Year or the minimum$$$ rent set by the previous CPI adjustment. CPI Index for the month preceding the start of the subject Contract Year. "Year End Index" -"Base Index" Step #1: "Base Index" % Change Step #2: % Change x Base Rent = Adjustment Step #3: Base Rent + Adjustment = New Rent 62 Jan. 28, 2020 Item #19 Page 95 of 107 EXHIBIT H -WAIVER OF LIABILITY AND RELEASE SAMPLE Waiver of Liability and Release. Express Assumption of Risk and Indemnity Agreement I understand and acknowledge that there are risks of personal injury, death, and property damage while participating in the activities that are the subject of this rental agreement. The risks are inherent in these concession activities; still other risks may arise from conditions, situations, or activities of which I am presently unaware. My .participation is voluntary and based on my independent assessment of the risks, without reliance on representations or advice by employees or representatives of the Concessionaire, the State of California, or any other person. In consideration of being granted this rental agreement and the use of concession equipment, I HEREBY RELEASE, WAIVE, AND RELINQUISH ALL CLAIMS AND LEGAL ACTIONS FOR PERSONAL INJURY, WRONGFUL DEATH, OR PROPERTY DAMAGE AGAINST CONCESSIONAIRE, AND AGAINST THE STATE OF CALIFORNIA, DEPARTMENT OF PARKS AND RECREATION (STATE), ARISING AS A RESULT OF MY PARTICIPATION IN THESE CONCESSION ACTIVITIES, OR ANY ACTIVITIES INCIDENTAL THERETO INCLUDING RESCUE ACTIVITIES; THIS RELEASE APPLIES EVEN IF CONCESSIONAIRE AND/OR STATE IS NEGLIGENT OR OTHERWISE AT FAULT. I ALSO AGREE TO PROTECT, HOLD HARMLESS, DEFEND AND INDEMNIFY CONCESSIONAIRE AND STATE FROM ALL CLAIMS AND LEGAL ACTIONS FOR PERSONAL INJURY, DEATH OR PROPERTY DAMAGE ARISING FROM MY CONDUCT; THESE INDEMNITIES APPLY EVEN IF CONCESSIONAIRE AND/OR STATE IS NEGLIGENT OR OTHERWISE AT FAULT. I understand the effect of my signing this document is that I (1) acknowledge and assume all risk of injury, death, or property damage I might suffer while participating in these concession activities, even if it occurs as a result of the negligence of Concessionaire and/or State or defects in equipment, (2) absolve and release Concessionaire and State from the consequences of their negligence, including without limit, rescue efforts, and defects in equipment, and (3) will protect, hold harmless, indemnify and defend Concessionaire and State against any legal actions or other claims for damages arising from my actions. I UNDERSTAND THAT I AM FORFEITING IMPORTANT LEGAL RIGHTS AND INCURRING IMPORTANT LEGAL RESPONSIBILITIES. I understand that certain minimum skills, capabilities, physical and mental health, and fitness are required in order to participate in dangerous activities such as these concession activities; I warrant that I possess these. I understand and agree that should emergency rescue services or evacuation become necessary, the expenses are my sole responsibility and not those of Concessionaire and/or State or any other public or private entity. I warrant that I am executing this agreement voluntarily and that neither Concessionaire nor the State has made any representations to induce or coerce me to sign this document. I agree that the terms of this document bind me, my heirs, assigns, executors, and administrators, and expressly and specifically protect Concessionaire and State including, as applicable, their agents, employees, officers, directors, and shareholders. Printed Name & Address: _________________________ _ Signature: ___________________ _ Date: ________ _ Signature of parent or guardian for participant under age 18: ______________ _ Name & Telephone of person to contact for emergencies: ______________ _ 63 Jan. 28, 2020 Item #19 Page 96 of 107 EXHIBIT 1-CONCESSIONAIRE'S OPERATION PLAN 64 Jan. 28, 2020 Item #19 Page 97 of 107 EXHIBIT J -CONCESSIONAIRE'S FACILITY PLAN 65 Jan. 28, 2020 Item #19 Page 98 of 107 State of California -Natural Resource Agency DEPARTMENT OF PARKS AND RECREATION CONCESSION PROPOSER QUESTIONNAIRE (DPR 398) CHECKLIST Carlsbad SB & South Carlsbad SB Concession Opportunity INSTRUCTIONS: Place a copy of this checklist at the front of the original Proposal Questionnaire (DPR 398). The original DPR 398 and each copy must include each applicable item listed on the checklist as instructed by the Request for Proposal document. Any proposer that submits an incomplete checklist and/or does not provide all applicable items on the checklist may be disqualified at the discretion of the Department of Parks and Recreation. PROPOSAL SUBMISSION INCLUDES: D One (1) Original and seven (7) copies of the Proposer Questionnaire and supplemental information/ materials (exhibits, plans, etc.) D Electronic version of all proposal documents (CD or USB) D Proposal Bond I. PROPOSER INFORMATION D A. Proposer Identification D SB/ DVBE Certification, as applicable D B. Business Information Sole Proprietorship D Proof business can operate in California D Proof of registered fictitious business name, as applicable Partnership D Complete Copy of Partnership Agreement D Proof business can operate in California Joint Venture D Complete copy executed Joint Venture Statement / Agreement D Proof business can operate in California Limited Liability Company (LLC) D Complete copy of Articles of Organization w/ California Secretary of State Seal and Statement of Information D Proof business can operate in California Corporation D Provide Corporate Resolution indicating officers authorized to contract on behalf of the Corporation D Proof business can operate in California. D For publicly held corporations, attach copy of most current Annual Report DC. Individual Information D Resume/narrative describing work experience D Certification signature D D. Business References (minimum of 3) Jan. 28, 2020 Item #19 Page 99 of 107 II. THE PROPOSAL D A. Rental Offer (meets or exceeds RFP minimum requirements) D B. OPERA T/ON PLAN (refer to .the DPR 398 for required sections) D C. FACILITY PLAN (refer to the DPR 398 for required sections) Ill. FINANCIAL INFORMATION D A. Concession Development D Documentation to support funding commitments D B. Business Financial Statement D Assets = Liabilities + Net Worth D C. Financial References and Credit Worthiness D Minimum of three (3) references (two (2) must be bank, saving or loan institutions) Page 1 of 2 D Credit report from nationally recognized credit bureau within 60 days of proposal due date D D. Proforma D Projections provided for full contract term D Projections include concession development commitments D Proforma veritified by a Certified Public Accountant IV. CERTIFICATION AND AUTHORIZATION □ A. Authorization to Release Information (signed) □ B. Labor Law Compliance Certification (signed) □ C. Authorization to Release Tax Returns D Signed with notary or corresponding identification (non-corporations) D Signed with authorization statement (corporations) □ D. Proposer Certification (all applicable signatures) V. PRIVACY NOTICE (no action required) Page 2 of 2 Jan. 28, 2020 Item #19 Page 100 of 107 ### Subscribe to California State Parks News online at www.parks.ca.gov/news or email us at newsroom@parks.ca. gov. California State Parks provides for the health, inspiration and education of the people of California by helping to preserve the state's extraordinary biological diversity, protecting its most valued natural and cultural resources, and creating opportunities for high-quality outdoor recreation. Learn more at www.parks.ca.gov. Facebook I Twitter I lnstagram I YouTube I Blog I Periscope I Flickr 2 DPR 985 (Rev. 2/2016)(Word 2/23/2016) Jan. 28, 2020 Item #19 Page 103 of 107 cultural resources, and creating opportunities for high-quality outdoor recreation. Learn more at www.parks.ca. gov. Facebook I Twitter I lnstagram I YouTube I Blog I Periscope I Flickr 2 Jan. 28, 2020 Item #19 Page 106 of 107 -e• _ State of California• Natural R_es=o=ur=ce=-s=.A_ge_nc_y-=============== """"~ DEPARTMENT OF PARKS AND RECREATION•' 1A1 . · P.O. Box 942896 • Sacramento, CA 94296-0001 January 21, 2020 NOTICE TO INTERESTED PARTIES EXHIBIT 4 Gavin Newsom, Governor Lisa Ann L. Mangat, Director In the best interest of the State, the Request for Proposals (RFP) #P18CA030 to provide a Fitness and Recreation Concession at Carlsbad and South Carlsbad State Beaches has been cancelled. The Pre-Proposal Meeting scheduled at 6PM on January 23, 2020, at the Hilton Garden Inn-Carlsbad Beach has also been cancelled. The Department will work with the community to determine how to best meet the needs of the parks and visitors. Please check the Department's website for any future updates. Jan. 28, 2020 Item #19 Page 107 of 107 State Concessions & Volleyball -1/28/20 -T. Geidner California State Parks concession for volleyball, fitness & other non-aquatic activities on Carlsbad State Beaches >s-<o<" J ,,_c, A Presentation for Carlsbad City Council Vc y J' Prepared by Tom Geidner, North Coast Beach Volleyball _ J-, -f 0 ·~ Executive Summary /(6~ __ / California State Parks ("Parks") currently authorizes a for-profit, commercial business, Dennis 0. Shay dba Carlsbad Village Athletic Clubs (CVAC or "Concessionaire") to manage, control and charge for volleyball play on public volleyball courts at Carlsbad State Beaches. Concessionaire is also authorized to monetize yoga, fitness and other "non-aquatic" activities. Under the current contract, the Concessionaire operates at Frazee and Tamarack/ Warm Waters for volleyball and Frazee, Tamarack/ Warm Waters and Ponto for all other activities. Expansion attempt fails In 2014, Parks and the Concessionaire sought to expand the Concession by turning the five volunteer-built and maintained public courts at South Ponto over to Concessionaire. The State abandoned this effort after a massive negative public response. Volleyball community philosophically opposed to concession The volleyball community has largely opposed the Concession and its operation for numerous reasons: • It reduces public access to public resources and makes a typically free sport "pay-to- play". The Concessionaire currently charges $180/year per person or $10/day for recreational play. This is beyond the reach of many. • The Concessionaire has operated heavy-handedly even to the point of using State Rangers to detain and force people off unused public courts. • The Concessionaire prioritizes commercial volleyball over recreational volleyball especially at Tamarack/ Warm Waters. • The Concession is not incentivized to act in the public interest. • This commercial arrangement is unique out of all State Parks to Carlsbad State Beaches. New complaints trigger State Parks audit In mid-2018, new complaints from the public about the Concessionaire triggered an internal audit by State Parks headquarters in Sacramento. We quote from the audit: 1 State Concessions & Volleyball -1/28/20 -T. Geidner The report contains all findings discussed with the San Diego Coast District during the course of the audit and recommends that the District terminate the concession contract as the concessionaire's financial records lack key information, the concessionaire did not comply with the terms of the contract, and as a result, a significant risk to the Department's reputation, public safety, and natural resources exists. Concessionaire allowed to continue In spite of the audit recommendation to terminate, nothing has been done. The Concessionaire has been allowed to continue operations on a month-to-month basis. Other Concession problems The Concessionaire has frequently "self-permitted" large commercial events and tournaments which negatively impact parking and ordinary beach use. It has often done so without the knowledge or approval of the State or City. New RFP issued and withdrawn On January 8, 2020, State Parks issued a new Request for Proposals (RFP) for the Concession that was signed by top State Parks Director, Lisa Mangat. This RFP would have turned the only remaining public volleyball courts (at Ponto) over to the Concession and it appeared to reduce the number of open-play public courts from SEVEN down to ONE. The RFP also greatly extended the duration of the Concession; contains language biased in favor of the current Concessionaire; and was developed without any community input. Many also believe a personal friendship between a State Parks official and the Concessionaire may have influenced the decision to continue the Concession and proceed with a new RFP. Again the local volleyball community began an outreach campaign to make the public, elected officials and media aware of the situation with the goal of either stopping the process entirely or at least putting it on hold. On 1/18, a letter and a copy of the audit was also sent to Ms. Mangat. On 1/22, State Parks headquarters suddenly announced withdrawal of the RFP and cancelled the public meeting to discuss it. Parks also stated any future arrangements will be developed with the local community. Where are we now? We are in a holding pattern. It is unknown what State Parks plans to do. It appears the contract has still not been cancelled and no one has been directly contacted by State Parks to discuss what happened. Individuals are now making CPRA requests to get information from Parks. 2 State Concessions & Volleyball -1/28/20-T. Geidner Solutions While volleyball players are often by nature independent spirits, in general the community has coalesced around a few ideas and solutions. 1. Open, free, public recreational volleyball must take priority over commercial, for- profit play regardless of who's in charge. State beaches are a public resource not a private one. 2. State Parks should terminate the current commercial Concession per the recommendations of its auditors. 3. Improve general public access to beach volleyball. 4. Keep the poles and courts at Ponto fully open to the public except for direct permit special events and existing school clinics. They have been that way since 2006. Leave them alone. 5. With all the contract violations the audit exposed, State Parks has not shown it can effectively manage the existing Concessionaire or contract. Any new RFP or plan should address this. 6. Research community needs. To our knowledge, State Parks has never conducted any formal surveys or worked directly with the volleyball community at large to formulate plans for how beach resources are used. 7. Work with local groups. If Parks somehow demonstrates a strong need for volleyball management, the State should consider using informal, non-commercial operators such as local volleyball groups. 8. The City of Carlsbad should work with the State on overall beach recreational opportunities. Should the State proceed with another RFP, we think the volleyball community would happily support any City efforts to bid on a new RFP. We can also provide volunteers to assist in the process. 9. We encourage commercial operations to build their own or use existing off-beach court facilities. Sand courts are not unique to the beach. Beach courts are unique in that they are public and no cost, low cost for the average player. There are commercial off- beach courts in San Marcos, Del Mar, Sorrento Valley and Poway. More could be built. The remainder of this document provides additional information including an overview of the sport and other considerations which you can read at your convenience. 3 State Concessions & Volleyball -1/28/20 -T. Geidner Other Background & Info Beach (sand) volleyball Beach version of indoor sport typically played on an 8m x 32m sand court consisting of a net strung between two stout poles plus nylon or rope lines to mark the court (see below). Normally played as doubles (two-person teams) or, less frequently, fours (4-person teams). Most public beach courts consist only of two permanent poles with players expected to provide their own nets and lines. Public access to public resources One time events (weddings, parties, etc.) In a meeting with State Parks representative, Robin Greene, State Parks said they view access to public resources as a pyramid with most important to least from top to bottom. (See diagram.) School and non-profit group use. Unfortunately, the State's priorities seem to be more in line with supporting and maintaining the commercial bottom of the pyramid rather than the recreational top. Each iteration of the concession contract has reduced public access by either Commercial ventures (camps, clinics, tournaments, etc.) increasing costs or decreasing availability. 4 State Concessions & Volleyball -1/28/20 -T. Geidner Popularity of beach volleyball From its height in the early 1990s and debut in the Summer Olympics in 1996, the sport has been through ups and downs both in terms of participants and industry involvement. The last few years have again seen growth in the sport with estimates running about 5 million participants nationwide. Female participation has grown at a slightly higher rate than male, especially among high-school and pre-teen girls. NCBV has some 150 active players but of these only 15 -30 are on the beach at any one time. We could use more courts From Memorial Day through Labor Day, volleyball courts can be crowded especially on weekends. The primary places to play in North County are Del Mar Dog Beach (20 courts), Encinitas Moonlight Beach (3 courts + portables), Carlsbad Ponto (5 courts), Carlsbad Warm Waters (4 courts), Carlsbad Frazee (4 courts), Carlsbad Red's (1 court) and Oceanside (about 5 courts scattered between Buccaneer and the Harbor). Volleyball players self-regulate The sport has generally had the ethos of "first-come, first-served" where the first people to either put up a net (where there are poles but no public nets) get to use the court. Where there are public nets on public poles, there is usually some sort of challenge system similar to public basketball courts. Your team challenges the winners of the current game or puts the team on a list for the next open court. How much does it all cost? The initial cost for a net and lines is fairly high ($400 for a standard, tournament quality system). However, systems can last for years if they aren't exposed to the elements 24/7. The biggest ongoing expense is volleyballs at $SO/each. Lifespan is about 3 - 6 months per ball in regular use. Each court requires four to six balls to keep play moving quickly. The cost is why groups of players band together to buy the gear. North Coast Beach Volleyball (NCBV) originated as friends banding together to buy the nets and balls and has stayed with that format since 2008. NCBV operates by via member donations of $25/year per family. This goes towards equipment, maintaining the courts at Ponto and get-togethers. Commercialization of volleyball Beach volleyball clinic operations and tournaments have seen a lot of growth. Some operations in Carlsbad charge as much as $1200 per student for a 3-day intensive clinic with multi-week clinics costing between $300 to $600 per student. Multiply this over 30 to 60 kids per session and the gross revenues can easily be in the hundreds of thousands of dollars. Tamarack Beach 5 State Concessions & Volleyball -1/28/20 -T. Geidner Volleyball (Warm Waters) and The Wave Volleyball (Dog Beach) are two such large scale operations. Other commercial volleyball enterprises AVP Next, the California Beach Volleyball Association and others host paid tournaments with cash prizes. VAVI and Foot Volley USA, both for-profit groups, have bought court time from CVAC. School use Pacific Ridge School, Carlsbad High School and other local schools conduct on-the-beach volleyball clinics for students during the spring (usually at Ponto). These are currently directly permitted by State Parks. However, the RFP would add them to the commercial concession. How does this all affect volleyball play? Where the Concession currently controls the premises, play is typically prioritized for commercial clinics and tournaments, followed by paying players (CVAC members) then the general public. This is the opposite of the State Parks own "pyramid" approach. Currently the concession is supposed to leave ONE court per location open for public play at all times. However, frequently all courts are taken by the concession in favor of its commercial customers. Commercial arrangements don't report all revenues Contrary to the terms of its contract with the State, the current Concessionaire charges its commercial users an undisclosed and unpublished fee for "renting" the courts. Under state law, at least 10% of ALL gross revenues collected in furtherance of a commercial operation must go to the State. So instead of the State receiving 10% of the total receipts for a volleyball clinic operation or a tournament, the State only takes in 10% of the "court rental fee" charged by Concessionaire. Example: Assume 40 students participate in a 3-week clinic at $500/each. Total money collected is $20,000. Of that the State should (under the current Concession contract AND by State law) collect $2,000. However, if the arrangement is to RENT the courts to the commercial operation for $1000, only the $1000 is reported as beach income (by CVAC). CVAC then pays the State 10% of the gross $1000 or $100. Do we really know that "court rental" is taking place? Yes. In 2016, Sean Mitchell and Tom Geidner met with State Parks representatives Robin Greene and Lisa Urbach at their offices. At that meeting, Ms. Green confirmed that the State WAS aware of this practice and that it would end going forward. This has not happened. 6 State Concessions & Volleyball -1/28/20 -T. Geidner A very simple "back of the envelope" calculation (students x clinics x price) easily puts total revenues from various clinic operations in the hundreds of thousands of dollars. Yet, in 2019, the Concessionaire only reported a total of $85,000 in total revenues for all commercial operations including volleyball clinics, AVP Next tournaments, club use, CVAC memberships, VAVI use, Foot Volley use PLUS all their yoga, Pilates and other fitness classes. Of that $85,000, the Concessionaire only paid the State $8,500 for the entire year. It is absurd to assume total revenue from all sources was only $85,000. According to one of Concessionaire's key commercial customers, they are under non-disclosure with Concessionaire and cannot disclose the terms of their financial arrangements. Concessionaire has also stated (with witnesses present) that he conducts all business on "handshake" deals without written agreements. This again would appear to be in violation of the State's own contract with the Concessionaire. Join or suffer the consequences Mr. Shay has personally made threats to various groups including NCBV that if they did not join his Concession, they would find themselves without a place to play. He has made comments (with witnesses present) that he was going to take over the courts at Ponto and that people were finally going to have to pay him for volleyball. Mr. Shay has also represented himself as the State's coordinator for volleyball tournament permits. 7 Hector Gomez From: Sent: To: Cc: Sheila Cobian Wednesday, January 29, 2020 1 :15 PM Hector Gomez; Tammy Cloud-McMinn Mia De Marzo; Sherry Freisinger; Kyle Lancaster Subject: FW: Followup item from Council meeting from 1/28/2020 Please add to the item from last night. From: Keith Blackburn Sent: Wednesday, January 29, 2020 1:02 PM To: Sheila Cobian <Sheila.Cobian@carlsbadca.gov> Subject: Fwd: Followup item from Council meeting from 1/28/2020 Hi Shiela, Is it appropriate to forward these types of emails to you to be added to the record? Sent from my iPhone Begin forwarded message: From: Gary Schneir Date: January 29, 2020 at 7:34:00 AM PST To: Keith Blackburn <Keith.Blackburn@carlsbadca.gov> Subject: Followup item from Council meeting from 1/28/2020 Reply-To: Hi Council Member Blackburn, I attended last night's meeting and wanted to speak on Item #19 (RFP for concessions at Carlsbad State Beaches). My name was called as a speaker at the beginning but they called some group speakers first and one other individual but stopped calling names after that. The basics were covered by the previous speakers and it was late so I didn't want to take additional time in a long meeting to revisit the topic but there are a couple of items that I wanted to bring up. My simple stance is that I don't think there should be concessions for items that would normally be free on public beaches. If the state or city would like to setup something like Encinita's Moonlight beach with a food concessions and equipment rental, I have no opposition, but there is no reason to charge to play volleyball or to surf or to lay on the sand. I would hate to see Carlsbad be the first city in the State be known as the city that charges to play Volleyball at a beach. You sort of touched on this in the meeting by saying that everyone already thinks of those beaches as being operated by the city of Carlsbad. Some news articles about the issues with the current concessions operator have been re- printed as far away as the Chicago Tribune. We want to promote our city not be known for detaining some people playing volleyball on an unused court. The last item that I wanted to bring up is that the current budget for the CA State Parks and Recreation is a little over $1.1 Billion, yet in the most recent year, the current concession operator only paid the 1 state approximately $8,000. The State obviously isn't doing to concessions for revenue. The RFP only asks for a minimum of $3,000. If the city were going to make a bid for the RFP, it would be great if the city just offered the State a fixed price, even 10k or something similar and then kept the activities free. This could be considered a marketing activity or similar. In general, it is not difficult to attract people to the beach but if anything, I would think the city would try to encourage additional visitors by making sure the courts are available and free. As it is now, when I play with some of these groups at the beach during the week or on the weekend, more times than not, we go out for a something to eat and drink afterwards. As a whole, we are a large group so we tend to go somewhere close, which tends to be Carlsbad restaurants which helps the city businesses and therefore the city. If we have to start paying to play, we will probably go to other beaches that are free and based on history, we would probably find new restaurants or other places to eat at afterwards. Just for the record, I am currently a Carlsbad resident and bought my first home in Carlsbad in 1989 and lived in North county ever since. Thank you for your time and your service to our city, Gary Schneir CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 2