| (a) Definitions
(1) State historic site: A state owned historic property
under the management control of the Commission.
(2) Concessions: Those services and accommodations
offered to the public at state historic sites for which charges, fees,
admissions, or similar assessments are collected, excluding historic
sites admissions and facilities use fees.
(3) Concessioner: Any person, partnership, or corporation
granted leased concession rights or privileges at a state historic
site.
(4) Franchise fee: The annual fee or percentage of
gross receipts a concessioner pays to the Commission for state historic
site concession rights or privileges.
(5) Leased concessions: Rights or privileges granted
by the Commission to any individual, partnership, or corporation to
provide visitor services and accommodations for profit within the
boundaries of a state historic site property.
(6) Visitor services: Contracted service to operate
a facility, program, retail store, food service, event, rental program
and any other public service to address the public's use and enjoyment.
(7) Accommodation: Contracted services to operate lodging,
camping, RV park or other like overnight programming addressing the
public's use and enjoyment.
(8) Incidents: Any occurrence and or site condition
impacting the health and safety of the staff and public.
(b) General Requirements
(1) Visitor services and accommodations may be operated
by concessioner under contractual arrangements with the Commission.
Concessions are provided for public use and enjoyment and is in line
with the mission of the Commission meeting its educational and preservation
objectives.
(2) A concessioner may be permitted the use of buildings,
structures, and site improvements in accordance with the terms of
the contract and provided they assume full responsibility for the
maintenance and repair due to wear and tear during their period of
use.
(3) The executive director, subject to the provisions
of commission policy, shall take such action as may be appropriate
to encourage or enable the use of private funding investment to provide
visitor services and accommodations necessary for the full enjoyment
of state historic sites properties administered by the Commission.
(c) Concessioner Selection
(1) The solicitation, recruitment and selection of
concessioners within state historic sites shall be accomplished in
a manner appropriate for the scale of the investment and term of the
business opportunity ensuring that the selection process is fair and
equitable and in compliance with all applicable contracting and purchasing
laws.
(2) A concessioner will be selected with great care
to ensure that the concessioner can successfully operate the concession
in compliance with the contract between the concessioner and the Commission.
(3) The granting, termination, amendment, transfer,
assignment, and enforcement of all leased concession contract requirements
and provisions of such contracts is delegated to the executive director,
or his delegee.
(4) Site managers may select vendor services (food
trucks, popup retail, markets, etc.) for special events and weekends
to enhance public amenities during these limited periods of time in
accordance with state contracting and purchasing laws. These will
be approved by the director of historic sites operations and authorized
utilizing a revocable temporary contract which may be executed by
the deputy executive director of historic sites.
(d) Types of Concession Contracts
(1) A long-term concession contract over a 1-year period
will be used to grant major concession rights and privileges when
the concessioner is required to make sizable investments over $5,000
in merchandise inventories, equipment or furnishings, tenant finish,
or maintenance or repair to state-owned facilities.
(2) A revocable short-term contract under a 1-year
period shall be used to grant concession privileges when warranted
by the scope and size of the concession and as allowed by state contracting
and purchasing laws. Examples include merchandise vending machines,
coin operated machines, equipment rental, and other miscellaneous
services or accommodations deemed appropriate for the state historic
site by the deputy executive director of historic sites. An announcement
concerning the availability of concession services may not be issued,
with a vendor directly selected for weekend and other limited seasonal
concessions where no state payment is provided or state payment to
any vendor is under $5000.
(3) A revocable temporary contract may be used when
allowed by state contracting and purchasing laws and when deemed necessary
to address business objectives for special event services and programs,
provide interim services, or during a test period to determine the
feasibility for adding a new concession to a state historic site.
(e) Contract Terms
(1) All contracts shall be executed for a short or
long-term contract commensurate with the size of the total investment
required from the concessioner. The duration of the contract shall
be set for a period to allow for a reasonable opportunity for the
concessioner to achieve a return on their investment.
(2) The penalties and interest assessed for delinquent
franchise fees shall be stated in the contract but may not exceed
the penalties and interest rate established in the Texas Tax Code
§111.060 and §111.061.
(3) Penalties and/or interest under this section may
be waived by the executive director or designee for good cause.
(4) The rates and charges prescribed by the concessioner
shall be subject to the approval of the executive director or designee.
The reasonableness of the concessioner's rates and charges to the
public shall be judged primarily by comparing with current charges
for facilities and services of comparable character under similar
conditions. Consideration shall be given to factors deemed relevant
to the type of concession, location, and business conditions.
(f) Franchise Fee Rates and Charges
(1) Franchise fee rates shall be determined by the
executive director or his designee in an equitable and fair manner,
considering the various types of operations, gross receipts, net profit,
and capital invested. Single or multiple percentages applied to all
or various kinds of gross receipts may be considered in new or amended
contracts.
(2) A penalty of 5.0% of the franchise fee due shall
be imposed on a leased concessionaire who fails to pay the fee as
required under the signed contractual agreement, and if that person
fails to pay the fee within 30 days after the day when the fee is
assessed, an additional 5.0% penalty shall be imposed.
(3) Delinquent fees accrue interest beginning on the
61st day after their due date.
(4) The yearly interest on all delinquent franchise
fees is the prime rate plus one per cent, as published in the Wall
Street Journal on the first day of the calendar year that is not a
Saturday, Sunday or a legal holiday.
(5) The penalties and interest assessed may not exceed
the penalties and interest rate established in the Texas Tax Code
§111.060 and §111.061.
(6) Penalties and/or interest under this section may
be waived by the executive director for a good cause.
(7) The rates and charges established by the concessioner
shall be subject to the approval of the executive director or his
designee. The reasonableness of the concessioner's rates and charges
to the public shall be judged primarily by comparing with other like
businesses and services, uniformity with other state historic sites,
current market charges for facilities and services of comparable business
under like conditions. Consideration shall be given to factors deemed
relevant to the type of concession, location, term and business type
provided.
(g) Reporting
(1) Concessioners shall submit reports as timed and
directed in the contact and keep business records in good order as
to allow the executive director to audit and determine that all terms
and conditions of the concession contract have been and are being
faithfully performed.
(2) The state auditor, or duly authorized representative
of the agency, shall, for audit and examination, have access to all
records and other books, documents, statements and papers of the concessioner
pertinent to the contract.
(3) All incidents occurring on a state historic site
will be reported to the appropriate site manager or designated state
property representative. Incident reports are required to be generated
within 24 hours of the event and will be shared with the State Office
of Risk Management.
(h) Bond and Insurance
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