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
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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.
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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.
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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.
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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.
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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
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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.
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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
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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
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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.
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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.
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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.
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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.
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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
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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;
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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SAMPLE CONCESSION CONTRACT
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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
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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;
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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 &
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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)).
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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.
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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.
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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:
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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,
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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
###
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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
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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.
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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.
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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.
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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
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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
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